Criminalising Marital Rape : Why Removal Of The Exception Is The Need Of The Hour

This article isauthored by Anshumaan Jaiswal, currently a 2nd year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

Introduction

On 30th of July,2021, the Kerala High Court while disposing of a divorce appeal stated that ‘Marital rape is a valid ground for divorce, although still not penalised by the Indian Penal Code.’ This judgement received appreciation throughout the nation for its take on marital rape and gave an impetus to the call for criminalising marital rape in India.

But what is the position of marital rape in India and the Indian Penal Code and why has this position not seen a change in the 161 years of the existence of the code? What have been the developments that have prompted a fresh look on marital rape and campaigned for its criminalisation through amendments in the Indian Penal Code? And what could be the road towards realising this goal? These are the question sought to be answered in this article.

What is marital rape?

Section 375 of the Indian Penal Code, 1860 provides for the crime of rape. It defines rape as any sexual act committed by a man on a woman that is against her will and without her consent and Section 376 of the IPC goes on to lay down the punishment for the offence of rape which is rigorous imprisonment for a period of ten years, which may extend to life imprisonment, as well as fine.

But Exception 2 in Section 375 states 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. Thus, IPC effectively eliminates all sexual acts by a man committed upon his wife within marriage, irrespective of her consent, from the purview of the offence of rape.

What is the Stand in Support of the Exception?

One of the foremost grounds for not criminalising marital rape is the belief that marriage means irrevocable consent by the wife to all acts of the husband. The origin of this exception can be traced back to an era when the society was highly patriarchal and women were considered as chattel given to the husband in marriage. One of the first written exposition of this view can be found in writings of Sir Matthew Hale in his book Pleas of the Crown where he stated, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

Sanctity of marriage is another reason why governments have shunned to delete the exception of marital rape. The 167th Parliamentary Standing Committee Report on Home Affairs formed to look into the Criminal Law (Amendment) Bill, 2012 echoed this view and in its report it stated - “It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the committee may perhaps be doing more injustice.” This report was one of the major reasons why there was no change in the status of marital rape in the Criminal Law (Amendment) Act, 2013.

The notion that the intervention of law and State within the family would highly disturb it is another key stand in support of the exception. In the case of Harvinder Kaur v. Harmander Singh Chaudhary, the Delhi HC had held that neither Article 21 nor Article 14 of the Constitution has any place within the privacy of married life, “the cold principles of constitutional law will have a weakening effect on the bond of marriage.” A similar position was taken by the Supreme Court in Gobind v. State of M.P where it was held that the right to privacy protects the affairs of the marriage and family.

Efforts until now

The Justice Verma Committee Report published in 2013 discussed extensively the exception of marital rape. It was held by the committee that the exception of marital rape must be removed and that the relationship between the perpetrator and the victim does not necessarily imply consent even if it’s marital. It also recommended changes in Section 376B by stating that a marital or any such intimate relation existing between the victim and perpetrator does not imply a sentence of lesser magnitude. However, the suggestions were not included in the Criminal Law (Amendment) Act, 2013.

The Committee for Reforms in Criminal Laws headed by Prof. Shri Krishna Deva Rao setup by the Ministry of Home Affairs in 2020 released a questionnaire for public consultation. In Part C of its questionnaire for consultation on Substantive Criminal Law, Question No. 16 was on whether the exception for marital rape from S. 375 needs to be deleted. However this committee has still not submitted its report.

In the submissions of the case RIT Foundation v. Union of India, filed before the Delhi High Court for removal of the exception of marital rape, the counsels for the plaintiff submitted that marital rape is violative of Article 14 and 21 of the Constitution, further expanding upon their arguments, they stated that the differentiation between married and unmarried woman was considered unjustified by the test of reasonable classification and thus violative of Article 14 while the suppression of sexual autonomy is a violation of the Right to Privacy found in Article 21 as established by the K.S. Puttaswamy judgement.

A private members bill was introduced in the Lok Sabha by Mr. Shashi Tharoor titled The Women's Sexual Reproductive and Menstrual Rights Bill, 2018 which included provisions to remove the exception of marital rape, it stated that marital rape must be criminalized to eliminate the loss of a woman's sexual independence post marriage.”

What do some recent Supreme Court Rulings Hold?

In the case of Independent Thought v. Union of India, the court ruled that the exception would apply only to adult wives whereas the original section applied to wives not under 16 years of age. Justice Madan B. Lokur took into cognizance the findings set out in the Justice Verma Committee report which stated that wife is no more a subservient chattel of her. He further stated that the days when a married woman was considered subordinate are long gone by and “if there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished”. He also observed that a married woman has a complete right to deny sexual intercourse to her husband and even though these statements were said specifically in case of a minor wife, they are equally applicable to adult wives too.

Similarly Justice Chandrachud in Joseph Shine v. Union of India observed that “marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy of one spouse to another.” Even while hearing the case he recognised that a woman does not lose her sexual autonomy after marriage and that the “the right to say “no” (to sex) should be there after marriage also.” Both the above statements effectively falsify the grounds used by theorists like Hale and Blackstone to exempt marital rape from being a crime as they recognize the wife’s sexual autonomy and her right to deny consent to any sexual act in a marriage, and thus any act which vitiates this consent should be considered on an equal footing with rape.

In the case of K.S. Puttaswamy v. Union of India, Justice Chandrachud laid principles in opposition to the earlier laid ones in cases like Gobind v. State of M.P where privacy was considered a shield against state intervention in the marital and family space. He observed that privacy must not be used as a cover to assert the husband’s dominance within the household and privacy, rather than being of the marriage, guards the decisions of the individual itself. Thus, it can be stressed that the state has the right to interfere within the institution of the marriage if the rights of privacy and of sexual autonomy of the woman are being violated by the acts of her husband and thus marital rape can and should be criminalised.

What lies Ahead?

It is high time that the Indian lawmakers shun the archaic notions that bind them from deleting the exception. The institution of marriage can no longer be used to suppress a woman’s consent and the privacy of the individual is to be placed on a higher pedestal than that of the family’s. The grounds that have been used for centuries to justify not criminalising marital rape have been effectively proved to be not legally valid in the eyes of these recent judgements.

Similarly, India’s obligations to the Committee on the Elimination of Discrimination against Women also bind it to enact laws that criminalise marital rape. The committee’s recommendations with respect to India must be noted, which state, “ the country should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”.

We are currently in the era where the position of women in the society has progressed by leaps and bounds and they have gained equal rights on most of the fronts but the exception of marital rape remains a blot on this progressive image where a woman is denied control over her own body and faces subjugation in the institution of marriage. Therefore, marital rape should be criminalised and be punishable on the terms of Section 376(2) of the IPC which makes punishable rape by a person in relation, or by someone in a position of trust and authority towards the woman and it can be effectively concluded that a woman vests her trust in her husband post marriage, thus the husband should be made criminally liable for his sexual acts without consent under the aforesaid section.

Criminalising marital rape would go a long way in ensuring that the privacy of the wife is guarded even within the confines of marriage, a subject which the state chooses to stay away from due to the nature dynamics of the Indian society. It would also bring the wife at par with the husband in a marriage with respect to the decision-making powers regarding their body and sexuality. And hopefully this would happen very soon resulting in giving a large section of the society its lost rights due to centuries of male driven oppression.