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  • Avika Shree

MARITAL RAPE: MYTH VS REALITY

Avika Shree 

Jamia Millia Islamia, Delhi

MARITAL RAPE: MYTH VS REALITY

 “...No ka matlab No hota hai .Use bolne wali ladki koi parichit ho, friend ho, girlfriend ho, koi sex worker ho ya aapki apni biwi hi kyu na ho. ‘No’ means no and when someone says No, you stop.” 


These are the famous lines from the movie PINK. It may be fictional or even legally inaccurate however it has successfully conveyed the sentiment and realms of ‘consent’ to sexual relations quite clearly to the audience but today the question is does this consent extend to the wives as well?

INTRODUCTION

What is marital rape?  Broadly, marital rape or spousal rape is the term used for nonconsensual sexual intercourse by a man on his wife. It may also involve physical or verbal threats. Section 375 of the Indian Penal Code defines the acts that constitute rape by a man.

However, exception 2 of section 375 lays down that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape.”( In October 2017, the Supreme Court of India increased the age to 18 years).

A GLIMPSE INTO THE HISTORY OF THIS EXCEPTION 

In 1860, when India was still a British colony, the Indian Penal Code was put into effect. The marital rape exemption was extended to women over the age of ten in the original version of the regulations, and to fifteen in 1940.

Amicus curiae, or friends of the court, contended in January 2022 that the Indian Penal Code originated with Lord Macaulay's 1847 draft, who was the chairman of the First Law Commission, which was founded in colonial-era India. The draft's exception decriminalized marital rape without regard to age.  The clause safeguards the husband's rights in the marriage and is based on the age-old principle of married women giving their consent. The Doctrine of Hale, which was articulated in 1736 by British Chief Justice Matthew Hale, is where the concept of implied consent originated. According to the statement, "by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband," a husband cannot be found guilty of rape.

A number of high-profile cases in recent years have raised awareness of the problem of marital rape. Among them some noteworthy instances are:

Independent Thought vs Union of India[i]

The issues of child marriage and the sexual abuse of minors in marriage were addressed in this case. An NGO named Independent Thought brought the case, arguing that the Indian Penal Code's (IPC) rape exception, which shields a husband from prosecution if his wife is over 15, is unconstitutional.

As a result, the Supreme Court ruled that having sex with a girl younger than 18— even if she is a wife—qualifies as rape.[ii] 

RIT Foundation vs Union of India[iii] 

This case demonstrated the need for legislative change to address the issue and was a significant step towards the recognition of marital rape as a crime in India. Marital rape is still not punishable in India, despite the court's ruling, and stakeholders are still debating and supporting the issue.[iv] 

IS MARRIAGE A LICENCE TO RAPE?

In relationships, consent is just as important as trust. Many people believe that getting married gives them a free pass to indulge their sexual urges, or to put it another way, an official certification.  I think he is a man first and a husband second. She is a woman before she is a wife. Even when it happens inside the four walls of a married home and is started by a lawful husband, rape is still rape. The institution of marriage should never, under any circumstances, give a man the right to abuse his power or commit any illegal act that would otherwise be punishable. Rape is a horrible crime that can have a serious impact on a person's mental health as well as have a number of negative medical effects.[v] 

WHAT DOES THE COURTS SAY?

  • Delhi High Court [vi] 

Khushboo Saifi vs Union of India and Anr[vii]

The court passed a split verdict. According to Justice C. Hari, it is impossible to distinguish between married and single couples because there is no rational connection with the goal of shielding a woman from consensually engaging in sexual activity. He restated that Article 14 of the Indian Constitution is violated by the exception for marital rape.[viii] 

Justice Rajiv Shakdher of the high court's division bench had advocated for the repeal of the marital rape exception, stating that it would be unfortunate if a married woman's request for justice went unanswered even 162 years after the Indian Penal Code (IPC) was passed. Judge C. Hari Shankar, however, asserted that the spouse-rape exclusion is constitutional. 

Nevertheless, the judges approved the certificate of leave to appeal to the Supreme Court due to the "substantial questions of law" in the case.

  • Karnataka High Court

The court rejected the husband's plea to have the pending rape charges against him dismissed. A charge against him was made by his wife under Section 376 of the Indian Penal Code.

“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’... The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a licence for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband” the Karnataka High Court had observed in its decision, saying an accused should trial regardless of the immunity in the penal code.[ix] 

  • Gujarat High Court

The Gujarat High Court in Nimeshbhai Bharatbhai Desai v. State of Gujarat,[x] noted that marital rape was a disgraceful offence, but did not strike down the exception clause or did it urge the state to do so.[xi]

THE TALE OF FRUITLESS EFFORTS 

The Law Commission of India rejected the need to repeal the marital rape exemption in 2000 while taking into consideration a number of reform proposals aimed at updating the country's laws regarding sexual violence.

A committee led by retired Supreme Court judge J.S. Verma was established in 2012, and its recommendation was to make marital rape a crime. The committee contended that the basis for immunity was the antiquated belief that married women belong to their husbands and must consent to their sexual needs. The committee recommended eliminating the exception clause and ruling that a person's marital status is inadmissible as a defense when determining whether or not consent was given.

Yet, there was no provision making marital rape a crime in the Criminal Law (Amendment) Bill, 2012, which was written in response to the Verma Commission report.

CROSSROADS AT INTERNATIONAL LEVEL

Out of 185 countries in the world, 77 countries have laws that explicitly criminalise marital rape while there are 34 nations that decriminalise marital rape and India is one of them along with Pakistan, Afghanistan, Bangladesh, etc. Here explicitly means that the law makes no distinction between rape and marital rape.

Many nations have passed laws eliminating the marital rape immunity since the 1980s. Ireland, Canada, and South Africa are a few of these.The marital rape exclusion was abolished in Nepal in 2002 as well, following a ruling by the Supreme Court that it violated the right to privacy and equal protection under the constitution.

WHAT IS THE ROADBLOCK IN CRIMINALIZING MARITAL RAPE?

  1. The potential for the wife to maliciously prosecute. We don't live in a utopian society where it is not likely that wives will abuse this law in order to seek revenge on their in-laws, demand money,etc. 

  2. The challenge of proving marital rape. 

  3. The improper application of criminal law to marital disputes.

  4. The chance that the wife, who has accused her husband of rape, will retract her accusations and make amends.

  5. The availability of alternative remedies, such as the Protection of Women from Domestic Violence Act of 2005, which provides a civil remedy in which the guilty are not sentenced to jail time but are instead ordered to live apart from their spouse and pay maintenance, and section 498A of the Indian Penal Code, which includes all forms of cruelty, whether they be sexual, emotional, physical, or verbal.

UNRAVELING POSSIBLE SOLUTIONS

Laws that protect the fundamental principles of equality, dignity, and bodily autonomy while acknowledging the uncomfortable social realities of their restricted application in real-world situations are necessary to define boundaries in our relationships with one another. When it comes to marital rape, it is critical that appropriate laws and regulations be in place. 

Marital rape should not be criminalized due to potential abuse of the law and the difficulty of proving innocence once evidence has been seized. Isn't the reasoning too nebulous? There are numerous instances like rape or eve teasing where the onus of proof is on the accused, but just because a case is difficult to prove doesn't mean it ceases to be considered criminal activity.

Institutions establish and maintain hierarchies of dominance and subordination that are enduring, hard to overturn, and permanent. As a result, the law ought to consider the allegedly illegal actions between two parties in light of the underlying institutions and each person's relative standing within them (such as caste, patriarchy, and class). The constitutional rights should be enforceable horizontally when there is a power differential between the parties that permits one to violate specific constitutional rights of the other and the difference stems from the parties' respective positions within the established institution.[xii]

At last, some workable strategies for protecting innocent husbands' rights from fraudulent marital rape cases should be deduced. This is crucial because, once a man is found guilty of rape, his and his family's lives are forever changed, so these delicate matters must be handled with the utmost care and consideration.

CONCLUSION

The need for legislation supporting the fundamental values of equality, dignity, and bodily autonomy becomes critical as we work through these complexities. The unwillingness to make marital rape a crime should not serve as a justification for impunity but rather as a spur for subtle legal changes that strike a fair balance. To sum up, the discussion surrounding marital rape emphasizes the necessity of a well-balanced approach to both legal development and social change. Matrimonial sanctity shouldn't turn into a haven for criminal activity. In order to achieve justice, it is necessary to enact legislation with consideration, eliminate outdated exemptions, and create a framework that protects everyone's rights while recognizing the fine line that must be drawn between providing survivors with justice and preventing potential abuse.

REFERENCES

[i] AIR 2017

[iii] AIR 2019 10 SCC 800

[iv] Idem 2

[vii] AIR 2021 Delhi High Court

[viii] Manupatra , Criminalisation of Marital Rape ,

[ix] Ibid

[x] AIR 2018 SCC GUJ 732

[xi] Ibid

[xii] Swarati Sabhapandit’s;  https://www.theindiaforum.in/law/criminalising-marital-rape-india (last visited Nov 11,2023)

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