The Issue of Marital Rape – Explained, pointwise

Introduction

A 2-judge Bench of the Delhi High Court has delivered a split verdict in a batch of petitions challenging the exception provided to marital rape under Section 375 of the Indian Penal Code (IPC). One of the Judges held that the exception as unconstitutional, while the other Judge held that the provision is valid. The Judgment has again ignited the debate about criminalization of marital rape in India.

What is marital rape?

The term marital rape (also referred to as spousal rape) refers to 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. The words unwanted intercourse refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.

What is the current status of marital rape in India?

In India, the definition of rape under section 375 of Indian Penal Code does not include marital rape as a criminal offence.

Exception 2 to Section 375: This section provides that sexual intercourse by a man with his own wife (provided that wife is over the age of 18) would not amount to the offence of rape. This is based on the premise that all sex within marriage is consensual (perpetual consent). This exemption allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife

Marital Rape is only covered under the definition of domestic violence which is defined under the Protection of Women from Domestic Violence Act, 2005. The Domestic Violence Act is a civil law and it only provides for civil remedies to the wife. Under Section 376-A in the IPC, 1860, rape of judicially separated wife was criminalized. Nonetheless, the Justice Verma committee constituted in 2012 strongly recommended that the exception under the IPC be removed.

What is the magnitude of marital rape in India?

In a survey conducted by International Centre for Research on Women (2011) nearly 20% of Indian men have, reportedly, at least once carried out sexual violence against a female partner. In another study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% of women have been reported as victims under the category of “physically forced her to have sexual intercourse with husbands even when she did not want to”.

The recently released NFHS-5 report has found that 30% women between the ages 18 and 49 years have experienced physical violence since the age of 15 years, and 6% have experienced sexual violence in their lifetime. But even amongst 6% women who have admitted to sexual assault, over 80% women have said the perpetrator is their husband. So marital sexual violence is widely prevalent.

What is the global status regarding criminalization of marital rape?

The marital rape immunity is known to several post-colonial common law countries. However, Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape. Similarly, in 2003 marital rape was outlawed by legislation in the UK. More than 150 countries had criminalized marital rape by 2019.

What are prominent cases associated with marital rape?

Exception two of Section 375  is also under challenge before the Gujarat High Court on the grounds that it undermines consent of a woman based on her marital status. 

Similarly, the Karnataka HC has recently allowed the framing of marital rape charges against a man despite the exemption in law.

Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) case: In this case, the Gujarat High Court elaborately dealt with the issue of marital rape. The Court stated that “making marital rape an offense will remove the destructive attitudes that promote the marital rape”. However, due to the non-recognition of marital rape as a crime, the Court held that the husband is liable only for outraging her modesty and unnatural sex.

Independent Thought v. Union of India (2017) case: In this case, the SC has criminalised sexual intercourse with a minor wife aged between 15 and 18 years. But, the SC refused to delve into the question of marital rape of adult women while examining an exception to Section 375.

Why should marital rape be criminalized?

First, marital rape abuses, humiliates, degrades and violates the dignity of woman thereby undermining their bodily integrity and violating Article 21 i.e Right to Life.

Second, it is against the right to equality (Article 14) to apply different criminal provisions on women based on their marital status. Also, if the husband is accused of gang-rape of his wife, then he will not be punished thereby undermining equal treatment of between all accused persons.

Third, it is a severe form of sexual violence that is punishable in many civilized society as a symbol of gender justice.

Fourth, decriminalizing marital rape simply means concretizing the patriarchal mindset in the society, under which husbands believe that wife is their property and they can do anything with them. 

Fifth, the civil remedies for marital rape include protection orders, judicial separation and monetary compensation. Thus, the 2005 Act only provides a recourse to the woman to remove themselves from the violent and dangerous situation and does not do anything to deter the violent behavior of husbands.

Sixth, giving immunity to marital rape erodes women’s power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety.

Seventh, it has a deep psychological impact on the victim women. According to one study, women victims of marital rape are twice as likely to experience depression.

What are the challenges associated with criminalization of marital rape?

First, some experts believe that the institution of marriage is sacrosanct in society which needs to be upheld at all costs and all procreative sex within marriage is legitimate.

Second, it will further increase the threat to a woman’s life by her husband and her in-laws. Any attempt to go against them may lead to further atrocities and an attempt on her life.

Third, dissatisfied, angry, vengeful wives might charge their innocent husbands with false cases of marital rape. Further, it will be difficult for husbands to prove their innocence.

Fourth, there are issues as these crimes are committed in a space where there are no eyewitnesses. But this is the same for other crimes of Rape and POCSO.

What lies ahead?

First, Even though the Court has delivered a split verdict, its intervention moves the needle in favour of doing away with the marital rape exemption in law. One of the Judges’ opinion takes the conversation forward on the subject, and sets the stage for a larger constitutional intervention before the Supreme Court.

Article 142 grants exceptional powers to SC. Under this, SC has the equivalent power of a lawmaker. So, in failure of Parliamentary legislation, the Courts can strike down the exception to Section 375.

Second, the laws alone cannot be used to fight marital rape issues, societal change is pivotal. Societal change is important, as there is a need to challenge not just the issue of patriarchy, but the very notion of perpetual consent under marriage.

Conclusion

The principle of equality and non-discrimination is important, and it is enshrined in our Constitution. This should permeate through each law of the country including Section 375 of the Indian Penal Code. It is high time that India realizes that a marriage license cannot be a substitute for a woman’s consent.

Source: Indian Express, Indian Express, Indian Express, The Hindu