Author: Rithanya S, The Central Law College
Table of contents
ABSTRACT
INTRODUCTION
HISTORICAL PERPECTIVE OF MARITAL RAPE
JUDICIAL PRECEDENT
ANALYSIS OF SPLIT VERDIC
CRIMINALIZING MARITAL RAPE: EXCESSIVE HARSH
CONCLUSION
FAQS
ABSTRACT
Criminalizing marital rape remains a nonstop matter of debate and contentious social and legal issue. This article mainly focuses on criminalizing martial rape constitutes an excessive legal response within the Indian legal framework, given the statutory immunity provided under sec 63 of BNS and sec 375 of IPC. From 1860 till date, marriage has been perceived as an institution granting implied consent theory and marital rape being a matter of debate. While the proponents continuously argue that criminalization is a necessary step to recognize a women’s right to consent within marriage and conversely, critics argue that such criminalization may lead to the misuse of legal provision. Additionally, this article will discuss the judicial precedent and comparative legal framework. This article advocates for an approach that balances constitutional morality with pragmatic implementation. This article concludes by addressing marital rape demands a holistic legal response.
INTRODUCTION
A man is a man; an act is an act; rape is a rape, be it committed by man the ‘husband’ on the women ‘wife – Gujarat high court.
Indeed today, India is one of the democratic nations that does recognize the marital rape as an offense. In India, rape means to force sexual activity perpetrated by a man on women against her free will and it has two exceptions. Firstly, a medical procedure and secondly, a husband cannot be prosecuted for the rape of his own wife when the wife is above 18 years of age. This second exception is being challenged before court and it fueled anger. Historically, sexual intercourse within marriage was regarded as a right of spouses and believed that wife was a husband’s property. There exist a practical norms that before marriage women had the right to choose but after marriage, married women were not considered as legal entity and this is doctrine of coverture. It looks back into the idea that marriage makes a women her husband’s sexual property. This sexual subjugation of women in marriage is reinforced in different ways through religious rituals and cultures. And on the other hand, this sexual subjugation is shown as harmless whereas, the media shows that the threat of rape only comes from outsiders. But, as per the data collected by NFHS revealed that over 82% husband were sexually violent with their wife and 13.7% former husband as perpetrators.
HISTORICAL PERPECTIVE OF MARITAL RAPE
In 1900 BCE in Babylon, in the code on Hammurabi dictated that a man could be sentenced to death for forcing sex upon someone’s wife or daughter. During those days rape was merely form of theft or vandalizing someone else’s property. In ancient times, rape was defined as a property crime against man (husband) or (father), rather than women herself. Since women were considered to be the property, a man could do whatever he wanted in his property, so rape were not possible within marriage. Even though rape laws evolved and view it to be a crime against the women herself in 17th century, it was based on the violation of sexual purity which is not considered in a marriage. In the 18th and 19th centuries, with the growth of Victorian morality, emphasis on women’s chastity increased. Rape began to be perceived as a threat that women faced outside the household. The Indian Penal Code was drafted in 1860, in which section 375 defines rape and categorically excludes marital rape. Many activist movement took place and taking place in India’s anti- rape law. But still the exception granted to marital rape remains. In 2012, the parliamentary standing committee responded that by criminalizing marital rape could put the entire families under stress and will create absolute anarchy in families. And yet, India continues to uphold a man’s (husband’s) right to rape his wife. In Queen Empress v. Haree Mohun Mythee, the court highlighted that marital rape do not apply to a wife of 11 years but the husband was convicted under section 388 IPC by highlighting neglect of consent and autonomy in marital rape.
JUDICIAL PRECEDENT
There has been several petition come up for the criminalizing marital rape but the court had said that it is not with the court’s jurisdiction and it cannot direct the parliament as it is within the domain of the legislation to look over it. In Independent Thought v. Union of India, 2017, as exception in the IPC which stated that the marital sex with women over the age of 15 is not the rape even without the consent of that women. But in this case the Apex Court ruled that sex with one’s minor wife who is below 18years would be considered as rape even with her consent. Supreme Court with its interpretation changed the age limit from 15 to 18 years.
In 2021, Kerala High Court pronounced a landmark judgment that the marital rape is in fact a valid ground for divorce. It highlighted that even though law does not recognize the marital rape as an offense, it still falls under the framework of physical and mental cruelty.
ANALYSIS OF SPLIT VERDICT
Judiciary in India is in conflict to eradicate rape from society. In the case, RIT foundation v. Union of India, Delhi High Court pronounced a split verdict by two judges on the issue of marital rape. Justice Rajiv Shakdhar found that there is a violation of fundamental rights (Article 14, 19 and 21) and exception 2 given under section 375 is unconstitutional. He interrupted that there was no reasonable classification between married and unmarried women. And he also stated that in the institution of marriage there is conjugal expectation of sex that is, sex without consent could lead to violation of dignity and violation of constitutional article. Whereas Justice Harishankar held that there are no grounds for the courts to hold that there is a violation of fundamental rights. He stated that there is difference in the other relations and marital relation. In marriage there is legitimate expectation of sex and this is the intelligible differentia which differentiated between the rape and marital rape.
CRIMINALIZING MARITAL RAPE: EXCESSIVE HARSH
Marital rape is now called as excessively harsh, the government gives following reason:
1. Disturbance of Marriage: By Criminalizing marital rape could disturb the sanctity of marriage and can be misused to disrupt families. This view reflects deep-seated cultural norms that prioritize marital unity and stability.
2. Implied Consent Under Marriage: The marriage is presumed inherently as implied consent to sex. The government believes that once individuals marry, their consent to sexual relations is implied, based on traditional interpretations of marriage and gender roles.
3. Existing Laws on Domestic Violence: The government also points to existing laws, like the Protection of Women from Domestic Violence Act (PWDVA). The government claims these laws provide sufficient protection without the need for separate legislation to criminalize marital rape.
CONCLUSION
The women’s rights activists strongly disagree, viewing the current laws as insufficient in addressing the autonomy and dignity of women in marriage. They argue that the non-criminalization of marital rape violates women’s fundamental rights, perpetuates inequality, and fails to recognize the importance of sexual consent within marriage. Critics contend that the distinction made by the government is an outdated patriarchal view, urging legal reform to protect women from any form of marital violence and ensure justice. The debate reflects a significant clash between evolving understandings of consent and deeply rooted traditional views about marriage in Indian society.
FAQS
Define marital rape? Whether marital rape is criminalized in India?
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. It disregards the concept of consent within marriage. Marital rape is not criminalized in India. In India, Section 375 of the IPC and Sec 63 of BNS excludes sexual intercourse between a husband and wife above 18 years as rape, effectively legalizing marital rape within this exception.
What are the constitutional challenges to the marital rape exception and how have the court addressed it?
The marital rape exception has been challenged for violating rights under Articles 14, 15 and 21. Courts have questioned its basis but have yet to conclusively address it, with divergent opinions, as seen in the Delhi High Court’s split verdict in 2022.
Are there any other existing laws that deals with marital rape in India?
Other laws such as, Protection of Women from Domestic Violence Act, 2005, recognizes sexual abuse as a form of domestic violence. Sec 84 of BNS addresses cruelty by the husband, including physical and sexual abuse.
