“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract" - History of the Pleas of the Crown by Mathew Hale.

Marital rape has been in the limelight for quite a long period now. There has been tons of debate and discussions revolving around its morality and legal legitimacy. We are also to keep in mind throughout this article that such exception was provided as the society was structured in such a manner which considered a woman subordinate to her husband, and now with the better knowledge and understanding of women’s rights, the laws regarding the same need to be reconsidered. So, let’s examine its history, cultural and religious aspects around it, counterpart arguments, its legality around the world and in India, and finally, the way forward.

HISTORY: 

The concept of exception of “Marital rape” was for the very first instance seen in the book published by the then C.J of England, Mathew Hale, who published in his book, “History of the Pleas of the Crown” that a husband cannot be held guilty of committing a crime such as rape against his wife, who on the other hand was considered his utmost property.[1] 

“Marital Rape”, the word itself was an oxymoron throughout the period before the mid-twentieth century. The British common laws were of such nature that the concept of marital rape could not even be imagined. Being regarded as the property of either her father or husband, a woman did not have any bodily autonomy as such, and the only way rape was possible against her was by someone outside the marriage. Though the rape laws were in action, the definition of rape was quite strange and in complete contrast with the current notion. Despite it being labeled as an act against the modesty and privacy of a woman, it was considered as the tort or theft of a man’s (usually father or husband) property. 

The authority of a husband over his wife can be figured out by the fact that in 1707, the English Honourable Chief Justice John Holt described the act of a man having sexual relations with another man's wife as "the highest invasion of property".

CULTURAL AND RELIGIOUS HINDRANCES:

In most of the cultures and societies across the globe, it was conceived that the marriage itself was an irrevocable implied consent for the husband to have sexual intercourse with his wife. Women were regarded as subordinate to their husbands and were not given equal status back then mostly due to cultural norms which were patriarchal in most places around the world. Before the advent of feminism, the position of women in society was quite humble, and a large population of women thought that it to be fine for them to have forceful sex as it is the conjugal right of the husband to have so. The position was such that forceful sex with one’s wife was considered to be a legitimate thing to do and taking it as a crime was not at all digestible.

Considering from the Indian perspective, the condition of Indian women had only been worst, starting from the time of later Vedic age, circa 1000 BC, and to the late nineteenth century when institutions were created for women empowerment and to give women their due rights.

Even today these notions and ideologies of female inferiority are prevalent in various parts of the world, more so in Asian and African countries, where women are considerably less literate regarding their matrimonial and societal rights. 

The Indian Minister of State for Home Affairs, Haribhai Parthibhai Chaudhary, stated in April 2015, "The concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty, myriad social customs and values, religious beliefs, and the mindset of the society to treat the marriage as a sacrament".[2] The statement certainly appears to be a logical fallacy as the two things do not correlate with each other. 

Statistics show that 16% of Indian women at some point in their lives experience domestic violence of some sort, be it emotional, physical, or sexual and according to some other reports, the percentage may be as high as 25-30%. [3]

Considering other surveys like one done in Mali, the result shows that 74% of women in Mali have to believe that it is justifiable for a husband to beat his wife if she refuses to offer sexual favors to him.[4] 

As far as the point of view of religion is concerned, most of the religion's core matrimonial aspects state that the husband has the conjugal right of creating sexual relations with his wife and she cannot deprive her husband of having sexual intimacy with her.

MARITAL RAPE STATUS AROUND THE WORLD:

The concept of exemption of marital rape was due to the flawed view that a man can’t rape his wife and due to the traditional belief system promulgated by the Catholic churches around Europe which were at the core of reinforcing these ideas. Over 150 countries have now criminalized marital rape. The legal changes across the continents were seen after the 1920s when the Soviet Union became the first country to criminalize marital rape in 1922, followed by Poland and Czechoslovakia. The Israeli Supreme Court affirmed that marital rape was a crime based on references from Talmud.[5]

In the United States, the criminalization began in the mid-1970s and by 1993 marital rape was a crime in all 50 states. Talking about the current scenarios, almost all the countries in Europe, North and South America have criminalized it except some countries of Asia and Africa. There are mainly two reasons for not criminalizing it. The first is the religious laws according to which the wife cannot withhold the sex from her husband and the second reason which is more prominent in African countries is that the sex within the marriage is consensual and the judicial body can’t intervene in between spouses’ inter-sexual relations.

MARITAL RAPE STATUS IN INDIA:

The lawmakers of India drafted the Indian Penal Code,1860 (Hereinafter referred to as IPC) way back in the 1850s when women were not considered as a separate legal entity but their identities were dissolved into their husband’s identity. Though in the later years we saw quite a several reforms in Indian law improving the condition of a woman, from allotting women a separate legal identity to allowing her to sue her husband. However, the exception of marital rape is still in the codified law of IPC to date.

Section 375 of IPC deals with the crime of rape which includes all types of sexual assault including non-consenting sex with a woman. However, the section has an exception of marital rape and does not criminalize it, which goes against the very purpose of this law.

CASE LAWS:

Justice K.S. Puttaswamy & Anr. v. Union of India & Ors. :[6]

This case is regarded as the foundation stone of the right to privacy jurisprudence in India. A bench of 9 judges was constituted in this case, and all of them unanimously agreed that the right to privacy is a Fundamental Right under Article 21, Part III of the Indian Constitution, and overruled the previous judgments passed in the case of Kharak Singh v. The State of U. P. & Others [7]and M.P Sharma v. Satish Chandra.[8]

Independent Thought v. Union of India:[9]

A petition was filed by an NGO, Independent Thought, regarding the incongruity of exception 2 of Section 375 of IPC with the POSCO Act, 2012. The court, in this case, declared the exception arbitrary and further commented on the exception being contravening the Articles 14, 15, and 21 of the Constitution. Ultimately the scope of this exception got narrowed down by increasing the age from 15 to 18 for the marital sex to be not considered rape. 

Nimeshbhai Bharatbhai Desai v. The State of Gujarat:[10]

This case was an exact case of marital rape, where a suit was filed by the wife against the accused, her husband, who used to have forceful non-consensual sex with her on numerous occasions. Charges were filed against him under Section 376, for the offense of rape. The court held that as per the current legal position the wife cannot initiate proceedings against her husband for the offense of rape punishable under Section 376 as the idea is that, by marriage, a woman gives irrevocable consent to her husband to have sex with her any time he demands it. The Bench however laid stressed that the legislature should intervene in the matter and stated, “It is time to jettison the notion of ‘implied consent’ in marriage.”

Though the concern has been raised in recent times, especially after the Nirbhaya incident of 2012, after which the Justice Verma Committee was created for modification in rape laws which also suggested the government for the criminalization of marital rape but was eventually turned down by the latter.[11] When almost more than 150 countries have criminalized marital rape, it is high time that India should also move forward in the same direction.[12] Currently, 2 courts, Delhi and Gujarat High courts are hearing the petitions from various NGOs and a firm decision is yet to be reached.

PROBLEMS TO BE CONSIDERED DURING CRIMINALISATION:

  1. Taking into consideration most of the countries which have outlawed marital rape, we need also consider that most of them have strict laws against false accusations and perjury which is very much lacking in our case and needs to be enforced simultaneously with the criminalization of marital rape. 
  2. Misuse of the law is yet another thing to consider, Section 498A of IPC is a provision that is being severely misused by the disgruntled wives, and empirically speaking, around 85% of the dowry cases turn out to be false ones.[13] Even though marital rape needs to be criminalized but the agony and misery to the men brought about by false accusations cannot be undermined as well.
  3. The burden of proof is yet another major problem to be considered during the process of criminalization. As the scenario is reversed in rape cases and it is the accused who has to prove his innocence beyond reasonable doubts, which can be difficult at times.[14]
  4. Not all marital rapes are carried out as a tool to abuse but sometimes there can be just some ambiguous signs which could lead a man to think that the consent is granted by the other person, so in this case charging him under the offense of rape can cause irretrievable damage to the marriage.

THE WAY FORWARD:

Although we have several provisions and Acts that deals with providing relief to a woman undergoing sexual abuse by her husband, none of them deals with the serious offense of marital rape in particular. Moreover, almost all such provisions are civil, and even if criminal liability is imposed, the provisions do not deal with the punishment which is ought to be given to such offenders.

Keeping in mind the thought process of the era in which the IPC was formulated, India urgently needs to outlaw marital rape as has already been done in most countries. Some issues can emerge proceeding forward but that can be dealt with if the right approach is followed because the ultimate motive of the laws is to protect its citizens and not to exempt the offenders based on marital status.


[1] Samuel H. Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter (NYU Press, New York, 2000).

[2] Haribhai Parthibhai Chaudhary on marital rape, available at: https://www.firstpost.com/india/concept-of-marital-rape-cant-be-applied-in-india-here-marriage-is-sacred-says-govt-2219128.html (Last Visited on February 21, 2022).

[3] Every third women in India suffers sexual, physical violence at home, available at: https://www.news18.com/news/india/the-elephant-in-the-room-every-third-woman-in-india-faces-domestic-violence-1654193.html (Last Visited on February 21, 2022).

[4] Bioline International official site, available at: http://www.bioline.org.br/request?rh04047 (Last Visited on February 21, 2022).

[5] Marital Rape, available at: https://en.wikipedia.org/wiki/Marital_rape#cite_ref-7 (Last Visited on February 21, 2022).

[6] 2017 10 S.C.C. 1.

[7] 1964 SCR (1) 332.

[8] 1954 SCR 1077.

[9] 2017 10 S.C.C. 800.

[10] Guj 732, [128] 65.

[12] Marital rape laws by country, available at: https://en.wikipedia.org/wiki/Marital_rape_laws_by_country#cite_ref-Randall_1-1 (Last Visited on February 21, 2022).

[13] Marital Rape debate, available at: https://www.opindia.com/2022/01/marital-rape-debate-explained-arguments-    for-and-against/ (Last Visited on February 21, 2022).

[14] Ibid.


About the Author: This post is prepared by Md. Ibaadur Rahman, Law student at Aligarh Muslim University. He can be reached at ibaadur72@gmail.com 

 

MyLawman is now on Telegram (t.me/mylawman) Follow us for regular legal updates. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter, or join our WhatsApp group. You can also subscribe to our Newsletter for Email Updates.

 For More Legal Articles, Click Here