Author: Aashna, a student at University School of Law and Legal Studies
To the Point
Marital rape is one of the most recurring phenomena, which often goes unheard in our country. It delves into the role or the significance of consent within marriage. Marriage is considered the union of a man and a woman, implying an absolute right towards their spouses. This often degrades the role of consent especially when it comes to engaging in sexual acts with their partners. It violates the basic rights of a human. Thus, there have been many attempts to criminalise the same in the Indian context. It is indeed quite concerning how despite being recognised as a criminal offence in various countries, Indian law does not recognise it as a crime, raising various opinions from different sections of the society.
Abstract
This article aims to bring light upon the alarming issue of marital rape in India. It is critical and serious enough to be heard and discussed on a national level to identify and implement the measures essential to curb the very practice. The same has been discussed or raised in may cases in India which aim at decriminalising the practice of marital rape. It primarily seeks to bring marital rape within the scope of the definition of rape as outlined in the BNS. Thus, it is an attempt to recognise the principles of equality, bodily autonomy and constitutional rights.
Use of Legal Jargons
This article is based on the concept of marital rape. Under section 63 of the BNS, rape has been defined as the sexual intercourse with a woman against her will, without her consent or under circumstances when her consent is not or cannot be given. Thus, this definition excludes the same being done by a husband. It clearly goes against the principles of equality, liberty and bodily autonomy as mentioned under article 14-21 of the Indian constitution. Moreover, the heated debate over criminalizing the same brings light upon the conflict between Social morality and the constitutional morality which implies a conflict between what is considered ethical and what is legal.
The Proof
According to international standards, marital rape is recognized as a criminal offense. The institution of marriage does not entitle a man to ignore the concept of consent. As per the UN Women around 157 countries across the world have criminalised marital rape. However, India still holds an exception to marital rape. Even in the BNS which replaced the IPC, the definition of rape excludes the idea of marital rape. Although, there have been various attempts made at criminalising the same, as discussed in the cases mentioned below. Even Karnataka High Court recently rejected a petition filed by a husband denying charges of rape/sexual harassment filed by his wife. It ruled that simply marrying a woman does not automatically provides the husband with absolute rights over her body, she still continues to enjoy bodily autonomy and has the right to provide or not the consent to the same. Therefore, non-consensual sexual intercourse with one’s wife is still regarded as rape. This alone shows the scope for development in the Indian legal system. With the passage of time, gradually the Indian Judicial system is beginning to accept and enforce the global norm when it comes to marital rapes.
Therefore, there undeniably exist a section of society which is against criminalising marital rape claiming the sanctity of the institution of marriage and the roles assigned along with it. It is no doubt that consent remains to be equally relevant and significant when engaging in sexual intercourse even after marriage. The same has been enshrined in the very basic values of the constitution of India.
Case Laws
RIT Foundation v. Union of India
In this case, various NGOs and individuals filed the petition to the court as an attempt to strike down the exception to the definition of rape as mentioned in section 375 of the IPC. This invited disapproval from various sections of the society and the union government which saw it as detrimental to the institution of marriage. So, the issue in this case was whether the exception to the definition of marriage struck down on the basis of it being unconstitutional. Justice Rajiv Shakdher gave a revolutionary opinion, holding that the exception is unconstitutional and that a marriage does not mean an implied consent, thus the language of the section is discriminatory in nature.
The Delhi High Court gave a split verdict; thus, the same issue has been passed on to the Supreme court.
Suchita Srivastava v. Chandigarh Administration
This case does not deal with the concept of marital rape directly but it deals with some ideas and concepts legally recognised by the state as per the interpretations of the Indian judiciary which strengthen the claim for criminalising marital rape. In this case, a mentally retarded woman got pregnant due to rape. So, the legal issue was whether the termination of the pregnancy could be initiated without her consent, considering it a special circumstance. The court stressed on the reproductive rights of a woman under article 21 of the Indian constitution. It stated that it includes the right to abort or carry a baby, holding consent as central to the idea of bodily autonomy provided under Article 21.
The court held that without the woman’s consent, pregnancy cannot be terminated as it would violate her constitutional rights.
Independent Thought v. Union of India
In this case, a petition was filed by an NGO challenging the exception 2 to the section 375 IPC which allowed sexual intercourse with a wife aged between 15-18. This case deals with the issue whether the exception to the section 375 of the IPC applies to the facts of this case. It was condemned on the fact that it violated the rights of minor girls. The court held that the same was violative of the POCSO Act, 2012. Moreover, it violated Article 14-21 of the Indian constitution, thus ceased to be constitutional. As a result, it was ruled that the exception to the definition of rape does not apply to such cases involving minors.
Conclusion
Marital rape being exempted from the definition of rape under Indian law is very detrimental to the Indian society and the hallmarks of democracy and its ideals, enshrined under the Indian constitution. It always suggests a reformative outlook, implying a change in the laws and regulations with the change in the society and its ideas. Moreover, there are many successful cases of nations which criminalised marital rape highlighting how instead of undermining the concept of marriage as an institution, it strengthens the marriage-at the same time protecting individual autonomy.
Thus, it is high time for India to align with the global scenario and consensus on the same and implementing the necessary measures to deal with the same, just like any democratic republic ought to.
FAQs
What is marital rape?
Marital rape refers to the non-consensual sexual intercourse by a husband with his wife. Thus, it implies a lack of consent.
What are the different countries which have criminalised marital rape?
There are many countries which recognise marital rape as a criminal offence, these include- Poland, the U.K., the USA, Australia, Denmark Germany, France, Israel, Belgium etc.
What is the legal status of marital rape in India?
Marital rape is exempted from the definition of rape provided under section 63-69 of the BNS thus it is still not legally recognised as a crime in India.
What is the idea behind being hesitant to criminalise the practice of marital rape?
The Indian law is hesitant at criminalising the act of marital rape as there are various orthodox sections of the society which believe that the same can be detrimental to the institution of marriage. Thus, there is aa fear of possible outburst/disapproval by such social groups.
What are the arguments in favour of criminalising marital rape?
The practice of marital rape i.e. sexual intercourse without the consent of the wife is very clearly violative of her fundamental rights which include the right to freedom of choice, the right to enjoy bodily autonomy etc. Moreover, it lacks consent which is enough to consider it as a criminal offence.
Sources
RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572
Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1
Independent Thought v. Union of India, (2017) 10 SCC 800
