Author: Jatin Tiwari, New Law College, Bharati Vidyapeeth Deemed University, Pune
Abstract
Marital rape, often termed “licensed rape,” refers to non-consensual sex perpetrated by one spouse upon the other. India still struggles with the idea of marital rape because of its deeply ingrained patriarchal customs and outdated legal frameworks, despite worldwide advancements in the recognition and criminalization of the crime. This article examines the complex legal issues of marital rape in India by examining pertinent statutes, prior legal decisions, and current issues. We will look at the conflict between personal liberty and marital rights, evaluate the legal and legislative solutions, and suggest future changes.
Introduction
In India, marital rape is still a controversial topic because of the prevailing cultural and legal beliefs that marital status entails permanent consent. This article explores the idea of “licenced rape,” emphasising the social and legal implications in India. We will examine how the laws in place now fall short of providing victims with the necessary protection, backed up by statistical data and case laws, and provide a legislative reform road map.
Section 63 of the Bharatiya Nyaya Sanhita (BNS)
63. Rape
Section 63 of the Bharatiya Nyaya Sanhita (BNS) defines the offense of rape and outlines the circumstances under which sexual intercourse is considered rape. This section specifies what constitutes non-consensual sexual intercourse and lists exceptions to the rule.
Section 63 defines rape as sexual intercourse with a woman under specific circumstances that negate her consent. These circumstances include:
1. Against Her Will: If the woman does not willfully agree to the act.
2. Without Her Consent: If the act is done without her agreement.
3. Consent Obtained by Coercion or Fear: If her consent is obtained through coercion, threats, or putting her in fear of death or harm.
4. Consent Obtained by Deception: If the consent is obtained under false pretenses, such as pretending to be her lawful husband.
5. When She is Unconscious or Unable to Resist: If she is incapable of giving consent due to intoxication, drugs, or any other reason where she is not in a mental state to understand the nature and consequences of the act.
6. Underage Consent: If she is under the age of 18, her consent is deemed invalid by law.
Exception: Marital Rape Clause contains a notable exception that has sparked significant debate.
Exception 2. — “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This exception 2. essentially legalizes marital rape for women over fifteen, implying a husband’s sexual entitlement over his wife. Critics argue this provision is rooted in archaic notions of marriage and fails to recognize a woman’s autonomy and bodily integrity.
Article 21 of the Constitution of India
The right to life and personal liberty are protected under Article 21. Judicial interpretations have expanded this to include the right to privacy, dignity, and bodily autonomy. The contradiction between Article 21 and the marital rape exception in Section 63 is stark, as the latter undermines the former’s guarantees.
Judicial Responses and Case Laws
Case: Sree Kumar v. Pearly Karun
In this case, the Kerala High Court ruled that a wife cannot accuse her husband of rape under Section 64 BNS due to the marital rape exception in Section 63. The court’s decision highlighted several critical points:
1. Marital Rape Exception: The court noted that the existing legal framework explicitly excludes marital rape from the definition of rape if the wife is above fifteen years of age. This exception effectively prevents the prosecution of husbands for rape, irrespective of the circumstances.
2. Judicial Constraint: The judgment underscored the judiciary’s constrained position. While the court may recognize the inherent issues and the need for reform, it is bound by the existing statutory provisions. The court cannot overrule or disregard clear legislative mandates, even if they are perceived as unjust or outdated.
3. Need for Legislative Reform: Although the judgment did not directly advocate for legislative change, it implicitly acknowledged the gap between legal provisions and the principles of justice and equality. The ruling highlighted the urgent need for legislative intervention to address the issue of marital rape comprehensively.
Case: Independent Thought v. Union of India
This landmark 2017 Supreme Court case partially addressed the issue by raising the age of consent within marriage from fifteen to eighteen. The Court recognized that sex with a minor wife is rape, aligning it with other child protection laws. However, this judgment did not abolish the marital rape exception for adult women.
Case: State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207 (India)
The case involved a police officer accused of raping a woman, with the court recognizing her right to sexual autonomy despite societal status. Although not directly a marital rape case, the Supreme Court of India emphasized the importance of consent, influencing broader discussions on marital rape.
International Perspectives
International human rights organizations, including the United Nations, have criticized India for its failure to criminalize marital rape. Countries like the United States, United Kingdom, and many others have already recognized marital rape as a crime, highlighting India’s lag in aligning with global human rights standards.
Proof and Arguments for Criminalizing Marital Rape
1. Violation of Fundamental Rights
The marital rape exception violates fundamental rights guaranteed under the Indian Constitution, particularly Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty). The differential treatment of married and unmarried women in rape laws fails the test of equality and non-discrimination.
2. Impact on Women’s Health
Studies show that marital rape has severe physical and psychological impacts on women. It contributes to reproductive health issues, mental trauma, and perpetuates domestic violence. Recognizing and criminalizing marital rape is essential for safeguarding women’s health and dignity.
3. Inconsistencies in the Legal Framework
India’s legal framework on sexual violence is inconsistent. While laws like the Protection of Women from Domestic Violence Act (PWDVA), 2005 provide civil remedies, they fail to criminalize sexual violence within marriage. This inconsistency undermines the legal protection offered to women.
Challenges in Criminalizing Marital Rape
1. Cultural and Societal Norms
Deep-seated cultural norms and the sanctity of marriage pose significant challenges to criminalizing marital rape. Many view marriage as a private domain, where state intervention is unwelcome. Changing societal attitudes towards marital rape requires extensive education and advocacy.
2. Legal Backlash
There is significant opposition from various political and religious groups against criminalizing marital rape. They argue that such laws could be misused and threaten the institution of marriage. However, these concerns often overshadow the need to protect victims of marital rape.
Roadmap for Reform
1. Legislative Amendments
Amending Section 63 of the BNS to remove the marital rape exception is crucial. This would align the law with constitutional guarantees and international human rights standards. Additionally, laws should ensure that all forms of non-consensual sex, irrespective of marital status, are treated as rape.
2. Judicial Activism
Courts must adopt a progressive interpretation of existing laws, emphasizing the protection of women’s rights within marriage. Judicial activism can drive legislative changes and foster a more egalitarian legal framework.
3. Awareness and Education
Public awareness campaigns are vital to changing societal attitudes towards marital rape. Educating communities about consent and women’s rights can foster a supportive environment for victims.
4. Support Services
Enhanced support services, including legal aid, counseling, and shelters, are essential for victims of marital rape. These services can provide immediate relief and long-term assistance to survivors.
Conclusion
Marital rape, often viewed as “licensed rape,” remains a grave issue in India, reflecting deep-rooted patriarchal values and legal inconsistencies. To protect women’s fundamental rights, it is imperative to criminalize marital rape through comprehensive legislative reforms. Judicial activism and public awareness are crucial in driving this change. Ensuring that all forms of non-consensual sex are recognized as crimes will uphold the principles of equality, dignity, and personal liberty enshrined in the Constitution of India.
FAQS
1. What is marital rape?
Marital rape refers to non-consensual sexual intercourse by a spouse. In India, the legal framework currently does not recognize it as a crime if the wife is above fifteen years of age.
2. Why is marital rape considered “licensed rape”?
The term “licensed rape” underscores the problematic notion that marriage grants implicit consent to sexual intercourse, effectively sanctioning rape within marriage by law.
3. What are the legal provisions related to marital rape in India?
Section 63 of BNS includes an exception that marital rape is not considered rape if the wife is over fifteen. However, this provision contradicts the fundamental rights guaranteed by the Constitution.
4. How does marital rape affect victims?
Marital rape has severe physical and psychological impacts, including trauma, reproductive health issues, and perpetuation of domestic violence.
5. Are there any significant case laws regarding marital rape in India?
Yes, cases like Sree Kumar v. Pearly Karun and Independent Thought v. Union of India highlight the judicial struggle with the marital rape exception and the need for legal reforms.
6. What challenges exist in criminalizing marital rape?
Cultural norms, societal attitudes, and opposition from political and religious groups pose significant challenges. Concerns about the misuse of such laws and the sanctity of marriage also hinder progress.
7. What reforms are needed to address marital rape?
Amending Section 63 of BNS to remove the marital rape exception, judicial activism, public awareness campaigns, and enhanced support services for victims are crucial steps towards reform.
8. How can public awareness help in addressing marital rape?
Public awareness can change societal attitudes, educate communities about consent and women’s rights, and create a supportive environment for victims to seek justice.
9. What role does the judiciary play in addressing marital rape?
The judiciary can drive legislative changes through progressive interpretations of existing laws, emphasizing the protection of women’s rights within marriage.
10. How do international perspectives influence India’s approach to marital rape?
International human rights organizations and comparisons with other countries that have criminalized marital rape highlight India’s need to align its laws with global standards.
