MARITAL RAPE: SHOULD IT BE CRIMINALISED?

ABUBAKAR SHAMSI

Introduction

India is one of the thirty-six countriesi where marital rape is decriminalized, yet. Rape is a heinous offense not merely against the victim but the society at large, which is defined under section 375 of the Indian Penal Code, 1860ii (IPC) as “unwanted sexual intercourse without an assent of the victim by coercion or due to undue influence because of physical drive or dangers, or due to deceitful demonstration of the perpetrator”.

On the other hand, marital rape or spousal rape is unwanted intercourse by a man on his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape is not an offense in India and section 375 exception 2 of IPC protects a husband from being liable for raping his wife who is 15 years of age and punishes the husband if the wife is below 15 years but, the punishment is more than nothing.

Historically, women have been considered first as a father’s property than to their husbands after marriage. Therefore, rape laws were created to protect the property interests men had in their women, not to protect women themselves. And marital rape was nothing but theft or tort to a man’s property. Marital rape decriminalization started in the 1960s after the second wave of feminism in the Germany 1960s and after the landmark judgment of R v. Riii on 23 October 1991 which was the first rape case in the U.K in which the defense of marriage is a consent for sex rejected and held the accused liable for raping his wife.

Almost all the major liberal democracies apart from India have strictly enacted legislation criminalizing marital rape. However, marital rape in India is not a criminal offense, even after the Justice Verma Committee Reportiv recommendations that the IPC should differentiate the rape within the marriage and rape outside the marriage.

Are there any Marital Rape Laws in India?

Unlike, the other adjoining countries like Nepal, Mauritius, etc. where Marital rape is a crime, Indian laws remain silent about marital rape even after the recommendation of the Justice Verma Committee Reports on 23 January 2013 to make changes in the rape provisions given in IPC. IPC has given an exception to the husband in raping her wife under section 375 exception (2), which says unwanted sexual intercourse with a wife under the age of 15 years is not rape while if she is under 12 then their an imprisonment may not less than 2 years and maximum 7 years. But this 15 years of age exception has been annulled by the Supreme Court in the case of Independent thought v. Union of India (2017) which criminalized the raping of a minor that is below 18 years of age and should be charged with the sexual act under the POCSO Act, 2002 but, it was merely a judicial interpretation, and due to not any legislature backing many courts didn’t follow this judgment in many later cases like in the case of Khushabe Ali v. State of UP (2021).

Later in IPC, a provision of consent under section 375 (B) was amended which criminalized the rape of a judicially separated wife with imprisonment not less than two years which extends to seven years, and shall also be liable to a fine. Section 3 of the POCSO Act, 2012, vii has made sexual acts with a girl below 18 punishable but not mentioned the sexual act by the husband with his minor wife. And Section 3 of the Protection of Women from Domestic Violence Act, 2005viii punishes the omission or commission or conduct of domestic violence where the person harms or endangers the physical and mental health and sexual abuse, harasses or coerces to obtain any unwanted favor, and threatens her or person related to her.

Constitutional Validity of Marital Rape

It has been observed that in most marital rape cases the marriage was forced. The ICRW UNICEF dataix reveals approximately 12 million girls are married every year before reaching the legal age of marriage i.e 18 years (now 21 years) according to a 2018 survey and have not discriminated against only low-income countries or low-income families and it is also not bound to mere any region, religion, or culture.

The presumption of rights of a woman which would be violated by Marital Rape is given below

  • Right to Equality (Article 14)- It talks about the treatment of each individual equally before the law but, Indian law discriminates women against female victims who have been raped by their husbands. It is because the IPC was drafted based on Victorian patriarchal norms, which had believed women slaves to men.
  • Right to live with dignity (Article 21) – The right to live with dignity is a fundamental right under article 21 and was first observed in the Francis Coralie Muin . Union Territory of Delhi case. Marital rape degrades the dignity of a woman. So, Courts now have begun acknowledging the unwanted sex with a violation of women’s dignity like in the case of The State of Karnataka v. Krishnappa.
  • Right to Sexual Privacy- In Justice K. S. Puttaswamy (Retd.) v. Union of India, the Supreme Court recognized that the right to privacy is protected under article 21 which also includes the right to sexual orientation to all as a part of the right to privacy and also emphasized and indicated the right to sexual privacy which conflicts with exception 2 of the sec. 375 of IPC,1860.

    But it has not been cleared by the court yet whether Section 375 IPC exception 2 is constitutionally violative of article 14, 19 or 21 or not. It has been seen in the recent case of the Delhi High Court which gave a split verdict as Justice Shedkar declared section 375(2) constitutionally invalid while, the other judge Justice Shankar said he doesn’t agree that section 375 exception 2 violates article 14, 19 or 21 or constitution and now the verdict will be challenged in the Supreme Court.

Should Marital Rape be Criminalised?

Marital rape is not completely criminalized in India. It has caused physical as well as mental damage to the woman. Even after several countries have criminalized marital rape and the recommendation given by Justice Verma Committee to make changes in rape provisions given under IPC, and even after the many judgments of the Hon’ble Supreme Court in which he asked the legislature to make provisions on marital rape, but, the government has no taken the issue in consideration yet.

Marital Rape cases have been reported mainly where marriage was forced or in Child marriages, though it is prohibited and marital rape also leads to other violence against the women apart from unwanted intercourse such as beating, adultery, mental torture, and other domestic violence against the women and lower her self confidence.

The Protection of Child from Sexual Offences Act, 2012 (POCSO) punishes the person who committed sexual violence against a minor even if the consent was given. But remained silent about the intercourse by the husband with his minor wife, which created confusion in making a judicial decision in the recent case of Hrishikesh Sahoo v. State of Karnataka, Justice M Nagaprasanna held that, when the husband “rapes” a wife, he cannot claim the protection of exception enumerated under Section 375 of the Indian Penal Code (IPC), since the exemption is not “absolute”.

Conclusion

So, as we have seen a victim of marital rape can’t file a suit straight against the marital rape but, she has to look into other provisions like under POCSO Act,2002, if she is a minor or section 375 (B) of IPC,1860 if she is raped during judicial separation but, till now there is no exact law which talks about all the aspects of marital rape which gives immunity to men to escape after committing such a heinous crime against her wife. The government should look into this problem thoroughly and after analysis, a new law should be enacted which will be the basket that will contain all issues regarding marital rape under a single act it should also be ensured that both the husband and wife’s marital rights won’t be violated.