INTRODUCTION
The foundation of the society is formed by a “sacred institution” which is known as marriage. The husband and the wife share a delicate space and the State refrains from interfering in their matter. But sometimes, the refusal of State interfering in this delicate space can be problematic, as such in the case of marital rape. Till today, the Indian law does not recognize marital rape as a criminal offense. Violence occurring in a family is the worst demonstration and the impact of this could be destructive if it is shown by a husband towards his wife. There are various debates on this issue going on since ages but no solution has been inferred. However, there are certain provisions and instances provided by the judges to safeguard the status of women in India.
CONCEPT OF MARITAL RAPE
Generally, rape means sexual intercourse without the consent of the victim. In the similar manner, marital rape needs to be proved by the “lack of consent” from the side of the victim, that is the wife. Sexual violence is the worst nature of humanity. A woman’s life is damaged by this act where the man has an effective dominant control. And due to this imbalance of power rape is considered to be a social and political issue.[1]
As stated above, there are several debates on this issue and majorly revolves around the question whether the husband have a control over wife’s body after marriage and whether the criminalization of marital rape is wholly necessity or not.
LEGAL FRAMEWORK
- Indian Penal Code – Under Section 375 of the Indian Penal Code, the punishment for the offense of rape has been provided but with an exception that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This particular exception has been criticised in parliamentary debates and by the judges as it has prescribed an age limit which deprives from a set of women above the age to plead being raped by their husband.
- Also, Section 376 of the Indian Penal Code, states the one who rapes must be punished with imprisonment of either for a term of not less than seven years which may extend to ten years or life imprisonment and also be liable for penalty unless the rape victim is his wife, and is not under twelve years of age. Therefore, if a woman is rape who is a major or more than fifteen years old, then there is no legal protection given to the wife.[2]
- In IPC, the following instances are provided wherein a husband can be criminally prosecuted[3]:
- If the wife is in between the age of 12 and 15, then punishable with imprisonment extending up to 2 years or fine or both,
- If the wife in below 12 years of age, imprisonment of either for a term of not less than seven years which may extend to ten years or life imprisonment and fine,
- If the wife is judicially separated, then punishable with imprisonment up to 2 years or fine and both.
- The first step towards this matter was taken in the 42nd law commission report where there was a demand of deleting the exception clause for Section 375 by various women organizations and National Commission of Women but there are set of people such as Task Force on Women and Children were of the view that there should be a wider debate on this matter. After reviewing the existing legislations, they recommended the definition of “sexual assault” could be adopted in the definition of rape under Section 375 of IPC. But the Task Force later stopped as they fell short of recommendation for including marital rape in the definition.[4]
- Indeed, even the 172nd Law Commission report which was passed in March 2000 had made the following suggestions for significant change in the law with respect to assault.“Sexual Assault” need to replace “rape”,
- The term “Sexual Intercourse” must include all forms of intercourse as in penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
- “Sexual Assault” on any body part must construe rape,
- Rape laws should be made gender neutral,
- Under Constitution of India – Even under Article 14, it has been enshrined. It being a fundamental right does not mean each and every individual needs to be treated equally under any circumstances. It means that “equals in the society must not be treated unequally and those who are unequal of the society must not be treated equally”. The two necessities of a substantial recommendations were set by the Supreme Court, in 1952, which are:
- Classification based on intelligible differentia,
- The differentia must have some reasonable connection.
GLOBAL STAND
The concept of immunization of marital rape can be dated back to 18th century where Sir Matthew Hale wrote in the book named, History of the Pleas of the Crown that “a 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 up herself in this kind unto her husband which she cannot retract”.[9] This rule or this concept was supported by the Parliamentarians and eventually the legal development of British colonial and United States were influenced by it.
The Supreme Court of Alabama claimed that it is a breach
of marital duty when wife refuses to have sexual intercourse with their
husband. Therefore, legally speaking, the sexual independence of wife was
within the “property rights” which has been granted to husband.
In England, the “doctrine of couverture” prevails, which
described the legal status of women. According to this, “the condition or state
of a married woman ... the legal disability that formerly existed at common
law, whereby the wife could not own property free from the husband's claim or
control”.[10] Thus,
the wife had no independent legal recognition. It was stated in the case of
United States vs. Yazell[11],
after marriage, husband and wife are considered as one institution and that was
the husband.
But the situation of exemption changed over years. In R
vs. R[12],
the House of Lord stated that husband cannot be held guilty of raping his wife
is it is established that the forced sexual intercourse against her will was
common law fiction and anachronistic, which no langer represented the wife’s
position in day-to-day life. Thus, the principle behind exemption of marital
rape lied behind the notion of “irrevocable implied consent”. In most
countries, either legislature or judiciary have criminalized the offense of
marital rape. But in India, the status of marital rape exists de facto and not
de jure.
DEVELOPING SCENARIO IN INDIA
Over the period of time, the judicial stand has developed
in India. In the case of Emperor vs. Shah Mehrab[13],
the husband was convicted for causing death of child wife due to negligent act
of sexual intercourse with her, under Section 304A of IPC. Another major step was taken in the
case of Independent thought vs. Union of India[14],
where the sexual intercourse with a wife below 18 years of age was criminalized
as it violated the Fundamental Rights.
The Gujarat Hight Court remarked in Nimesh Bhai
Bharatbhai Desai vs State of Gujarat[15]
that a husband does not get the license to forcibly rape his wife after
marriage. This particular statement was given while examining the sexual
offence laws prevailing in India. Moreover, in the case of State of Maharahtra
vs Madhukar Narayan, the Supreme Court gave an unequivocal judgement that no
person is entitled to violate the privacy of an women whenever he wants as she
is entitled to her sexual privacy.
Recently, in Hrishikesh Sahoo vs. State of Karnataka and
Ors.[16],
the Karnataka High Court dismissed the petition filed by the husband to drop
the charges pending against him for rape under Section 376 of IPC by his wife.
The Court points out that the Constitution guarantees Fundamental Rights under
Articles 14, 15, 19 and 21 to live with dignity and post republic, India is
governed by the Constitution which considers marriage as an “association of
equals”. The Amendment brought to Section 375 was analysed and the Judge was of
the opinion that the exception added the words “sexual acts” along with “sexual
intercourse”. Thus, sexual intercourse or any other sexual acts by a man are
exempted. Further, the Court clarified that it was not ruling the constitutionality
of the Exception
2 to Section 375 and stated that “no exemption can be absolute”.[17]
This led to filing of an SLP (Special Leave Petition) in
the Supreme Court for the stay of the above said judgement, however, the stay
order was refused. In the recent development, a split verdict was delivered by
the Delhi High Court on petitions seeking marital rape criminalisation. In the
verdict, Justice Rajiv Shakdher struck down the exception that protected
husband having non-consensual intercourse with his wife and held it to be
unconstitutional. He was of the opinion, the “classification, in my opinion, is
unreasonable and manifestly arbitrary as it seems to convey that forced sex
outside marriage is ‘real rape’ and that the same act within marriage is
anything else but rape”.
However, Justice Hari Shankar said, “If some husbands do
feel so encouraged, that would be attributable solely to their own perverse
predilections, and is certainly not the direct and inevitable effect of
operation of the impugned Exception”. He was of the opinion that Exception 2 of
Section 375 does not violate the Constitution as it is based on intelligible
differentia. That intelligible differentia was between the sexual act committed
within constricted to marriage. Thus, there is a difference between a “wife on
whom husband forces sex” and a “woman ravaged by a stranger”. When married, the
woman has willingly entered into a relationship with the man where sex is an integral
part and by marrying, she has given the right to “expect meaningful conjugal”
relationship with her.[18]
Thought, both of their opinions differ from each other, both the judges agreed
to grand a leave certificate to the petitioners for appeal before Supreme
Court.
CONCLUSION
The non-criminalisation of marital rape has been the most debatable matter. However, it has a severe consequence on women which includes psychological and physical. The concept of criminalising of marital rape can be brought about by individualistic approach. Such approach was made by the NGOs and far the domestic violence has been brought under purview but not completely criminalisation of marital rape. This gap can be covered by removing the distinction between marital rape and rape by stranger. But this again is far from reality in country like India, to bridge the gap which could give a long-lasting scar to a woman.
[1] Marital Rape,
http://www.legalservicesindia.com/article/2369/Marital-Rape.html.
[2] Helplinelaw,
Marital Rape - The current Legal Framework on Marital Rape in India,
https://www.helplinelaw.com/family-law/CLFM/the-current-legal-framework-on-marital-rape-in-india.html.
[3] Meghna
Bhat & Sarah E. Ullman, Examining Marital Violence in India, 15 Trauma Violence Abuse 57–74 (2014).
[4] To
Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. Law Rev. 1255 (1986).
[5] Id.
[6] 1954 AIR 300.
[7] (2017) 10 SCC 1.
[8] AIR 1991 SC 207.
[9] Helplinelaw, supra
note 2.
[10] Rebecca M. Ryan, The
Sex Right: A Legal History of the Marital Rape Exemption, 20 Law Soc. Inq. 941–1001 (1995).
[11] 382 U.S. 341
(1966).
[12] (1992) 1 AC 599.
[14] (2017) 10 SCC 800.
[15] 2018 SCC OnLine Guj 732.
[16] CRIMINAL PETITION No.5515 OF 2018.[17] Shraddha Chaudhary, The
Delhi High Court’s split verdict on marital rape needs resolution, The Hindu, May 15, 2022, https://www.thehindu.com/opinion/op-ed/the-delhi-high-courts-split-verdict-on-marital-rape-needs-resolution/article65417462.ece.
[18] Id.
About the Author: This post is prepared by Ritesh Roshan Samartha, Law Student from KIIT School of Law, Bhubaneswar. He can be reached at riteshroshan12@gmail.com
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