By Divay Kakkar, Bba.Llb (H)
Vivekananda Institute of Professional Studies (VSLLS)
“Truth: Rape does indeed happen between girlfriend and boyfriend, husband and wife. Men who force their girlfriends or wives into having sex are committing rape, period. The laws are blurry, and in some countries marital rape is legal. But it still is rape.”
― Patti Feuereisen
Marital rape is termed as rape committed on a woman when the perpetrator is the victim’s spouse himself. The main essence of rape remains the same i.e., sexual intercourse done with force without any consent. Hence, to prove the crime of rape, it becomes necessary to prove the lack of consent, the burden of which generally lies on the victim. There are some exceptions where the Law assumes the status of consent. For instance, in the case of minors, it is presumed that there was no consent because they are incapable of giving consent to these sexual acts. On the other hand, it is presumed that consent always exists when the victim and the culprit are married.
Marriage is a sacred bond of two pure souls, it doesn’t provide the license to the male partner to rape his wife. Consent from both the partners to have sexual intercourse helps in maintaining the dignity, purity and respect of marriage. Consensual sex between a man and his wife is an understandable phenomenon but the very moment the wife refuses sexual intercourse, it turns into rape. Just an exchange of materialistic things like rings and garlands does not give anyone the right to seize someone’s dignity to say ‘no’.
In the present world scenario, fifty-two countries have recognized marital rape as a crime, while in thirty-six countries, including India, marital rape is not considered as a crime by the Society and Law.
As per Section 375 of the Indian Penal Code, rape is a criminal offence. It is a wider definition that includes both sexual intercourse and other types of sexual assault such as oral sex. However, Exception 2 of Section 375, excludes the application on sexual acts between a husband and wife. Hence, the wife doesn’t have any legal remedy under Indian law if her husband forcefully rapes her.
On the other hand, a specific form of marital rape is termed a criminal offence. According to Section 376B of the Indian Penal Code, If Non-consensual sexual intercourse happens i.e., when the husband and wife are staying separately by Judicial decision or any other reason, then it is a criminal offence. This indicates that as per Section 375 of IPC, consent is presumed which is not the case here as the couple is not living together. Living together generally raises a presumption that the wife has given consent for sexual intercourse.
NON-CRIMINALIZATION OF MARITAL RAPE: VIOLATION OF CONSTITUTIONAL RIGHTS
- The doctrine of Coverture- The non-criminalized nature of marital rape traces back its origin from the British era. Marital rape was largely influenced by this doctrine which merges the wife’s identity with that of her spouse. In the year 1860, when the Indian Penal Code was being drafted, a married woman was not considered as a separate legal entity. The exception of marital rape in the definition of rape under IPC was drafted from the idea of Victorian Patriarchal Norms which did not recognize males and females as equals, didn’t allow married women to own individual property and merged the identities of wife and husband under the ‘Doctrine of Coverture’
- Violation of Article 14 of the Indian Constitution- As per Article 14 of the Indian Constitution, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. But marital rape violates the ‘right to equality of the Constitution. Although the Constitution guarantees equal treatment to all citizens, the IPC discriminates against female victims of rape who have been perpetrated by their own spouse. This exception creates two classes of women on the basis of their marital status, in the process, immunizing sexual assault done by men against their wives. This exception makes married women more prone to such victimization just because of their marital status while protecting unmarried women from the same set of dangers.
- Violation of Article 21 of the Indian Constitution- As per Article 21 of the Indian Constitution, “no person shall be denied of his life and personal liberty except according to the procedure established by law”. To further strengthen the essence of Article 21, the Supreme Court has added rights to health, privacy, dignity, safe living conditions, and a safe environment through various judgements.
In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. In the same judgement, it was held that the non-consensual act of sexual intercourse results in physical and sexual violence.
Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens. It was held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”.
Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.
Also, Exception 2 of Section 375 of IPC violates Article 21’s right to live a healthy and dignified life. The courts have repeatedly held that the “right to life” encompasses a right to live with human dignity. Yet the very existence of Exception 2, which fails to deter husbands from engaging in acts of forced sexual intercourse with their wives, adversely affects the physical and mental health of women and undermines their ability to live their lives with dignity.
- Spirit of Section 375 is undermined- The very purpose for which Section 375 was brought into the limelight was to protect women from sexual perpetrators and punish those who indulge in the disgusting activity of rape. However, exempting husbands who perpetrate on their wives from punishment completely disengages the objective for which Section 375 was established as the consequences and sufferings after rape are the same for both married and unmarried women, the marital status cannot be a parameter to discriminate. Also, married women might face more difficulties to cope and avoid these situations as they are legally and financially attached to their spouse.
REMEDIAL ACTIONS AS PER J.S. VERMA COMMITTEE REPORT
Firstly, the exception clause in Section 375 needs to be eliminated as marriage cannot be used as a defence to escape from legal liability after marital rape.
Secondly, it is not necessary that even though there is a relationship of marriage between the victim and the perpetrator, consent should be there. It is the wrong approach to presume that consent would exist if the male and female are married.
Thirdly, there should be no discrimination in the Punishment policy regarding rape. As per the Indian Penal Code, the punishment for rape ranges from 7 years to life imprisonment. On the other hand, as per Section 376B, which deals specifically with husband and wife staying separately has a different punishment policy, ranging from 2 to 7 years. This gives a clear view that the idea was to provide lesser punishment in the case when the husband was guilty, and this also violates Article 14 of the Indian Constitution on the grounds of equality. Providing lesser punishment just on the grounds of the existence of a relationship of marriage is not fair jurisdiction.
Lastly, amendments should be made in the Indian Criminal Act as follows-
- Removal of the Exception clause in Section 375 and addition of another explanation clause mentioning that marriage cannot be used as a defence to avoid legal liabilities arising out of marital rape.
- Invalidate Section 376B of the Indian Penal Code
- To amend Section 54 and insert Section 114B in the Indian Evidence Act, 1872.
Section 54- “In criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.”
This should be amended because:
- This section does not apply to cases in which the bad character of any person is itself a fact in issue.
- A previous conviction is relevant as evidence of bad character.
Exception – In cases under 375 of the IPC, the previous bad conduct will be relevant if the accused is the husband of the woman.
Section 114B- “No presumption of consent in prosecutions of rape: There shall be no presumption of consent in prosecutions of rape, even if the accused is the husband of the woman.”
RAYS OF HOPE AMIDST THE FOG OF WRONGDOING
Women are eligible to file complaints about sexual assault under Section 498A against their husbands.
Another legal action available to women is the protection of women through the Domestic Violence Act, 2005. Under this act, women can file complaints against forced sexual acts without their consent, even if it is done by their spouses.
The debate over the criminalization and non- criminalization of marital rape in India is a crucial point that is essential in establishing substantive equality for married women who are majorly confined to their homes and family. It is important to keep note that this a major loophole in the Indian Constitutional system that denies the Constitutional provisions of equality and dignity. It is high time now that marital rape should be treated as a major offence under IPC, and the punishment for it should be the same as prescribed for other acts related to rape. Just the fact that the victim and perpetrator are married shall not make the punishment lighter because the degree of the offence is equally serious. In a developing country like India, change is a constant process and change can only be brought into the Legal system if there is a change in the mindset of people. They should understand the causes and consequences of marital rape, only then the application of Marital rape laws will be successful.
 State of Karnataka v. Krishnappa 2000 CriLJ 1793