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11-min read

OPINION | With Social Stigma and Rampant Illiteracy, Will Declaring Marital Rape an Offence Help Women?

The recommendations of JS Verma committee, constituted after the Nirbhaya gang rape in 2013, recommended criminalisation of marital rape.

Monika Arora |

Updated:May 7, 2019, 9:37 PM IST
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OPINION | With Social Stigma and Rampant Illiteracy, Will Declaring Marital Rape an Offence Help Women?
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The dominant narrative among the women, youth and intelligentsia is to make marital rape an offence punishable with imprisonment but arguments on both sides should be considered before. Shrill voices on either side of the spectrum compels me to place the facts before the reader.

The case of the Petitioner

RIT versus Union of India WP 284/2016 case is a Writ Petition filed before Delhi High Court seeking declaration that Exception 2 to Section 375 IPC be declared as unconstitutional and that it violates Articles 14 and 21 of Constitution of India, thus seeking criminalization of marital rape.

The Petitioner states that Exception 2 to Section 375 of IPC grants immunity to the husband for the act of raping his own wife. It further states that Section 375 of IPC defines rape as a sexual intercourse with a woman against her will or without her consent but a sexual intercourse by the husband with his wife is not rape. Hence, the section wrongly presumes that sexual intercourse between a man and his wife is always willful and consensual.

The courts have held in the catina of judgments that one of the essentials of rape is absence of consent besides being an act done against the will of the victim. It is not merely a physical assault on the body but also the soul of the victim.

The petitioner states the very fact that rape has been classified as a separate offence stands testimony to the gravity of the offence. However, curiously the law takes away its protective shield from a woman who is subjected to non-consensual and unwilling sexual intercourse by her husband which the Petitioner says is even a graver offence as it is committed on a woman within the confines of the pious and sacred institution of marriage.

Hence, the law presumes that once the woman agrees to marry a man, she simultaneously agrees to have an intercourse with her husband whenever he demands it. This being a regressive approach not keeping in tune with the changing times wherein the institution of marriage is being seen from the prism of companionship and equality between two partners.

This is supposed to be orthodox mindset which is reflected in the ideas of influential jurist Sir Mathew Hale, who quoted in his book “History of the pleas of the Crown” in the year 1736, and wrote, “The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife had given herself in this kind of relationship to her husband which she cannot retract.” However, the development of law on this subject all over the world has been in favour of criminalization of martial rape. "

The United States of America till 1976 treated marital rape as an exception to the general offence of rape. However, all the 50 states of the US now treat marital rape as a crime of equal gravity compared to any other act of rape.

Canada has also repealed the provision of decriminalization of marital rape from its criminal code in the year 1983. South Africa has also criminalized marital rape. 42nd Law Commission of India published in 1971 in page 278, recommended among other things that in a case of judicial separation, the husband would have no legal protection if he commits the offence of raping his wife.

This recommendation received statutory sanctification u/s 376A of IPC as it exists today. 84th Law Commission of India stopped short of criminalizing marital rape even though it recommended that the age of implied consent in case of a married woman be raised to 18 years (Page 10).

The report of 172nd Law Commission published in the year 2000 also refused to criminalise marital rape in India. It was stated that this will amount to excessive interference in the marital relationships. After the Nirbhaya gang rape in 2013, the law was amended as per the recommendations of JS Verma committee constituted for this purpose which at page no 117, recommended criminalisation of marital rape.

The Supreme Court of India in the case of Independent Thought versus Union of India has made sexual intercourse with the wife under the age of 18 an offence.

Case of Men Welfare Trust

An NGO working in the domain of welfare of men, actively involved in free and selfless help for ones who are victims by the misuse of gender-based laws such as Section 498A, rape, sexual harassment, domestic violence and other cases of similar nature, has given a detailed reply and opposed the criminalisation of marital rape.

At the outset, they admit that women suffer sexual abuse from their spouses in matrimonial relationships. But the group says that the sexual abuse in a domestic relationship should not be termed as rape. Even the law on domestic violence which was enacted in 2005 refused to criminalise marital rape. Thus, the intention of law makers was clear that such offences are recognised as sexual abuses but not rape.

Further, they state that though the act of sexual intercourse is without the consent of the woman, however, a marriage is solemnised fully by choice and agreement of both the man and the woman with full knowledge of friends and family and not by fraud, by accident or force. Having given the consent to marriage, then by definition of marriage, the wife and also the husband are making conscious decision to keep sexual relations with each other.

As a marriage without sex is an anathema which has been stated in Vinita Saxena versus Pankaj Pandit by the Supreme Court on 21st March 2006. In case of divorce and separation, the woman effectively withdraws her consent from having sexual relations with her estranged husband.

If a man engages in sexual intercourse forcibly with her wife in such a situation, then it may fall within the definition of rape as there is no consent and he will be liable for criminal prosecution and the present rape laws already cover such situation and this is applicable in divorce/separate/estranged married couples.

They further state that married woman has a special status where they are liable to get maintenance/alimony from their husband by ways of special provision which only wife is entitled to. Further, special provisions like 498A IPC were enacted for the protection of wife and not for all categories of women. Hence, the rape laws which cover all the categories of women may not cover married wives as it brings about unfairness and does not meet the ends of justice.

It is pertinent to note that a man or woman on getting married lose their right to perform sexual acts with anyone apart from their married partner. Thus, a man or a woman on getting married give their consent to their spouse to have sex and hence such sexual acts cannot be termed as rape.

Sexual act with force may be called sexual assault for which laws are in their place. The husband has right to have a conjugal relationship with his wife, there has to be an understanding between husband the wife and if there is any breach of this understanding, legal recourse should be available to the spouses but in no circumstance, the husband should be branded as a rapist.

In the Indian society, marriage is considered to be a sacrament with the aim to procreate and lead a happy married life. In the western context, marriage is considered to be contract between the husband the wife; hence the concept of marital rape should not be applied to India’s context. It is further argued that existing laws are sufficient and capable of dealing with cases of sexual abuse of woman.

a) Protection of woman from domestic violence acts covers physical, emotional, sexual cruelty and the wife is entitled to protection provisions, interim, financial and monetary orders and non-compliance of orders by husband entails imprisonment.

b) Sec 498A of IPC covers all kinds of cruelty on wife including mental, physical and sexual cruelty and a person can be jailed up to 3 years upon conviction.

C) If a wife and husband are living in separation due to matrimonial separation and if in such a circumstance, the husband indulges with sexual intercourse forcibly with the wife, then it amounts to rape and punishment up to 7 years in jail.

D) In case of unnatural sexual act with the wife by the husband, the husband can be jailed for up to 10 years.

It is further argued that in many western countries, marital rape is legalized but in most of these countries, laws are gender neutral. Most western countries do not use the word ‘rape’. Most of these countries have deterrence such as time frame within which the complaint has to be filed. Most of these countries require medical evidence to support the claim of rape.

Further, such a law will impact family systems in India. The removal of protection given to husbands U/s 375 of IPC will result in grave misuse of law against the husbands.

It is also stated that matrimonial laws in India such as 498a and Protection of Women from Domestic Violence Act have been gravely misused. The Supreme Court of India has thus laid down guidelines in Arnesh Kumar versus State of Bihar in 2015 and Rajesh Sharma & Ors Versus State of UP on this issue. Thus, due to such grave misuse, the basic fundamental rights including the right to life and liberty of not only the accused husband but also the entire family will be jeopardized as following a marital discord with only a testimony, the husband and family members will be put in jail. (1,86,000 arrests have been made in 2016 as pet NCRB records) and the husband’s family will be pressurized for out of court settlements by paying huge sums of money or else the sword keeps hanging over their heads.

As per NCRB suicide statistics, 62,000 married men commit suicides every year which is more than double the suicides by woman. The stigma attached with such allegations, ruin families. The legal remedies available to woman existing under both civil and criminal laws provide speedy and effective remedies. Hence they have argued against criminalisation of marital rape that the forcible sexual intercourse cannot be termed as rape due to special status and protections granted to woman under the laws are available to only wives.

The Union of India has submitted before the apex court that marital rape is not defined in any statute or law. While rape is defined U/s 375 IPC, defining marital rape would call for a brad base consensus of the society. What constitutes marital rape and what does not constitute needs to be defined precisely before a view on its criminalization is taken. The matrimonial relationship between man and a woman stands on a different pedestal than any other relationship and the disputes arising out of matrimonial relationships are aptly taken care of by the current law of the land.

i. While Sec 376 (b) defines intercourse by a man with his wife during separation as an offence punishable with imprisonment up to 2 years,

ii. Sec 493 IPC defines cohabitation caused by a man deceitfully inducing a belief of lawful marriage punishable by imprisonment up to 10 years,

iii. Sec 3A of the Protection of women from domestic violence act, 2005 (PWDVA) deals with physical and emotional abuse caused to a wife and is punishable with imprisonment up to 1 year,

iv. Sec 31 of PWDVA, 2005 states that penalty for breach and protection order by Respondent is up to 1 year.

v. Sec 377 of IPC talks about unnatural offences.

Evidence of Marital Rape

The testimony of wife would be sufficient to convict the accused under the offence of rape. No corroboration except medical evidence would be insisted upon. It would be impossible to determine when the consent was withdrawn by married woman. Hence, most of the substantial and corroborative evidence would become futile in case of marital rape.

MISUSE OF SEC 498A

The top court in Sushil Kumar Sharma versus Union of India AIR 2005 SC 3100 has equated the misuse of Section 498a with legal terrorism. Thus, apprehensions of gross misuse of offence of marital rape cannot be ruled out. Also, offence of marital rape would be cognisable, non-bailable and non-compoundable offence. This would stop all chances of settlement between the husband and wife which is possible under sec 498 (A).

The 172nd Law Commission report titled Review of Rape laws has examined the matter and did not recommend the criminalization of marital rape. The department related parliamentary standing committee of home affairs in its 167th report also examined the matter and did not recommend the criminalization of marital rape.

Further, India has its own unique problems due to various factors like illiteracy, lack of financial empowerment in majority of females, mindset of society, diversity and poverty which should be considered carefully.

Thus, we in India cannot blindly follow certain countries in the west who have declared forcible intercourse by the husband of his wife as rape. The husband-wife relationship stands on a different pedestal, forms a separate class due to which the wife is entitled to may protections, privileges and legal remedies. Declaring it to be an offence of rape will be death knell for the family system in India where any complaint to the police filed in a hurry will take marriage to a point of no return.

(The author is a lawyer. Views expressed are personal.)​

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