FROM SHAME TO JUSTICE – JOURNEY TO CRIMINALIZE MARITAL RAPE

Author: Swapnil Chauhan, Translam College of Law.

Rape is a reprehensible sexual intercourse committed against a person forcefully without their consent. Out of all the sections of the society, women have undertaken a lot of disgrace and abasement in this male dominating society. However, the time has changed and women have come a long way but the path to be strong and independent entity was not easy.  Howsoever, after such a long struggle the ray of hope can be seen and now the society as a whole has started recognizing the problems of women and collectively started taking steps towards the betterment of the status of women. Also, now the society has started to recognize the married woman as an individual legal personality.

Introduction- Marriage is considered as a sacred institution but there has always been a question about rights and consent of the partners. According to a survey, even in today’s time married women are victims of marital rape but section 375 of IPC does not consider forceful relationship or sexual intercourse without consent as a crime. India is one of those 36 countries where marital rape is not criminalized. 

Sub Clause 2 of Section 375 of IPC states that any sexual intercourse by a man with his wife who is not less than 18 years will not be considered as a rape even without the consent. It is assumed that when entering the marriage female gives consent forever for sexual intercourse to her husband.  

The Domestic violence Act 2005 indicates towards a marital rape by any form of sexual abuse in marriage or in live-in relationship. However, it only gives the civil remedy and there is no way to initiate the criminal proceedings.

Legal Position in India – According to section 375 of Indian Penal Code, martial rape is only criminalized when husband forcefully do an act which includes sexual intercourse with the wife who is less than age of 18 years but once the women attain the age of 18, no men can be held liable for raping the women.

Challenging the Exception – The law is based on the orthodox beliefs that women are the property of their husband and marriage gives the absolute consent to the husband for life to have sex whenever the husband demand. This notion puts women unguarded in the marriage, making space for the abusive relationship in which husband force sex on his wife through threat, physical abuse, force, terrorization, intimidation and other forms. In the absence of a law for protection of women in marriage from sexual abuse they are not left with any legal rights to file a complaint for the act. The Supreme Court of India in response to Government of India regarding whether the non-consensual sex by a husband on his wife should come under the ambit of a punishable offence.

Justice Rajiv Shakdher argued in favor that it would not be a justice to the married women if her plea is left unheard and unanswered. He also stated that right to withdraw a consent at any point of time is the right of a women for life and liberty, which enclose her right to protect her physical and mental well-being.

Judicial Interventions 

1. In case Harvinder Kaur Vs. Harmander Singh (1984), the Delhi High Court held that “in the privacy of the home and married life neither Article 21 nor Article 14 of the Constitution of India have any role to play.”
2. In case State of Maharashtra and Another Vs Madhukar Narayan Mardikar (1990), the Supreme Court observed that the character of the woman could not adversely affect the devotion of her affirmation. Every woman has right to privacy and it must not be violated.
3. In case Shri Bodhisattwa Gautam Vs. Ms. Subhra Chakraborty (1996), the Supreme Court held that rape violates Article 21 of the Indian Constitution as it interferes the fundamental human rights and breached the victim’s right to life and dignity.
4. After Nirbhaya Case of 2012, the Justice Verma Committee suggested to criminalize the marital rape, but it was rejected by the govt. stating that it will lead to misuse of the law by women and a subsequent fall down in the faith and concept of the marriage. The central govt. also stated that marriage is a sacrosanct institution and it is a biggest hurdle in criminalizing the marital rape.
5. In Independent thought Vs. Union of India (2017) Supreme Court held that sub section 2 of section 365 “Sexual intercourse by a man with his wife without her consent, wife being the age of eighteen years or above, is not rape.” 
6. In State of Karnataka Vs. Krishnappa (1993) Supreme court held that “Violence with women both in terms of sexual humiliation or tempering the sanctity and privacy is an unlawful and non-debatable fact. In context of the above-mentioned fact the court has ruled that non-consensual sexual interaction is equivalent to sexual and physical violence.”
7. In Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court gives the right to women to choose the sexual activity considering the Article 21 of Constitution of India.
8. In Justice K.S. Puttuswamy vs Union of India (2017), the Supreme Court recognized the right to privacy, that is an important aspect in making decisions particularly on sexuality, procreation or intimacy.
9. In Joseph Shine vs Union of India (2018), Justice Chandrachud quoted that right to refuse for sex should also exist even after marriage.

Why Marital Rape should be criminalized?

Violation of Article 14 of Indian Constitution which states that women should be equally treated and individual rights should not be ignored by anyone not even by the spouse. A married women was not considered as an independent individual at the time of the making of law under Indian Penal code in the 1860s. Rather, she was considered as the bondswoman of her husband. That resulted into that, she did not obtain many rights as an independent legal individual. Failing to which she has no right to file a complaint towards the accused under her own congruity.

Exception 2 of section 375 of Indian Penal Code exempts the concept of marital rape on women by her husband. But with the course of time, laws prevailing now has started to consider a wife as a separate and legal entity to present them with the sufficient justice and security. Based on the marital status of the women there are two categories of the women that is married and unmarried. Exception 2 makes the exploitation against the married women doable but in case of unmarried women similar act have been criminalized into rape and sexual harassment. 

Ensuring Security of Women can be ensured if the marital rape will be criminalized. The women can remain safe from the abusive spouse and can get help for themselves from the domestic violence and sexual abuse.   

Marriage is not a license for a husband to force himself on his wife for a sexual act. Both unmarried and married woman has the same right to control their own body. 

Violation of Article 21 – Article 21 of Indian constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law”. It includes all the essential aspect like healthy food, dignity, safe environment, privacy, safe living conditions etc. for living a good life. Exception 2 of section 375 violates the Article 21 of Indian Constitution.

Rape as a Ground for Divorce – Absence of marital rape is highlighted as a ground for divorce.

Uniformity in Rape Definition – “Rape is Rape” regardless of the identity of culprit or victim’s marital status.

Crime against Humanity- It is a heinous crime that violate women bodily integrity.

Right to say NO – Women will get basic human right to say NO if she does not want to get involved in sexual intercourse.

Legal Remedy – Criminalizing marital rape would give direct legal remedy to the women seeking justice in cases of marital rape.

Why Marital Rape should not be criminalized?

1. Marriage is considered as a sacred institution between two people and criminalizing such act would sabotage the faith of society.
2. There is a fear of a large number of fraud cases being filed in opposition to husband.
3. Burden of proof is one of the reasons why marital rape should not be criminalized as it would be very complex task to proof that the woman has been raped or not.
4. There would be a constant insecurity in the mind of husband because of which he will not be able to complete focus on his career and personal growth resulting in toxic marriage relationship.  

Conclusion

Marital Rape should be treated as a crime as it is nowhere written that marriage gives a license to husband to have sex without the consent of the wife. It is not justified to discriminate between the married and unmarried women when it comes to the forceful sexual act, the grounds on which the forceful sexual act is punishable for the unmarried women should be applicable to the married women as well. It is a duty of the State to make such laws that protect the dignity and individual identity of a women in a marriage. It is a high time now that the government should think upon these lines and should work on making the marital statutes the law by keeping the fundamental rights of the women in mind and impose them more effectively. But simultaneously it is also the duty of the state to find means and ways to identify the genuine allegations stated by the women in order to safeguard the gender equality.  

FAQ’s

1. What is Marital Rape?
2. Should Marital Rape be criminalized?
3. What are the Challenges in criminalizing the marital rape?