Marital Rape : I exist in Bedrooms, not Courtrooms
Niraja Ray, Co-Author: Krupa Nishar
“Within a marriage, fighting back has consequences, The man who rapes me is not a stranger who runs away. He is someone who wakes up next to me. I begin to learn that there are no screams that are loud enough to make my husband stop. There are no screams that cannot be silenced by the shock of a tight slap.”
- Author Meena Kandasamy in her book ‘When I Hit You’.
In Indian culture, securing a girl’s future is through getting married. Husbands provide safety, security, love, care & she couldn’t possibly need anything more from life except for catering to her husband’s needs, starting a family and being the “good ole dutiful wife”.
But here’s the question, Are all husbands safe and will the law help if he’s not?
The idea of the institution of marriage dished out by mainstream Indian cinema is a myth and is contrary to women perceptions of reality. Though marital rape is one of the most common and repugnant and unpalatable form of despotism in Indian society, it is hidden behind the ferrous curtain of marriage and there’s seen to be a lot of hush encircling it.
Marital rape refers to the offense of rape committed when the perpetrator is the victim's spouse. Tracing the etymology of the word "rape" is derived from the Latin word rapio, which means to "seize". Basically, it means forcible seizure irrespective of husband or wife or kith or kin.
Our constitution and judiciary have failed to acknowledge rape as rape when it comes in regard with the pious institution of marriage. Rape is rape, be it being committed by a stranger, date or by one’s “Jeevan Sathi”. What the law fails to understand here is that a wife is a woman first of all and she can never stop being a woman till the end of her days. So, if being a wife puts a female into a more vulnerable position as the husband could actually have intercourse without her consent, the law itself is backfiring the very intent of the legislation, that is to protect women from such nightmarish crimes.
It is crushing to hear that such a sensitive issue like marital rape is being dismissed by the highest courts of India by giving the view that "You are espousing a personal cause and not a public cause...This is an individual case." Judgements like this lead us to question “Can rape be a private matter and be overlooked because of intimate relationship between the perpetrator and victim?”
Viewpoints of the courts have been contrary to the fundamental duty Article 51A (e) that enjoins upon every citizen to renounce practices derogatory to the dignity of women. The Section 375 IPC elaborates the offence of committing rape and it includes a potentially faulty exception.
The constitutional grounds of Exception (2) of Section 375 of the Indian Penal Code is fallacious. It says,
*Exception 2—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 asterisked exception to section 375 states that any non-consensual sexual act by a man with his own wife, who’s above the age of fifteen is not an offense. Section 375 IPC aims at covering all aspects and ingredients of the monstrous and heinous crime of rape. Albeit such a detailed statute, the exception clause in it appears to be the blemish. Additionally, the law bars a girl below 18 years from marrying, but on the other hand, it legalizes non-consensual sexual intercourse with a wife who is just 15 years of age. The law only protects three groups of women, those being the ones under the age of fifteen, the ones who have been separated from their spouse for two years or more and the unmarried female population out there.
It can be substantiated how the exception violates the basic fundamental rights that apply to each and every citizen of India irrespective of any difference.
Violation of Article 14 in the Constitution
Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands. Exception 2, which essentially exempts actions perpetrated by husbands against their wives from being considered acts of “rape,” is largely influenced by and derived from this already existing doctrine of merging a woman’s identity with that of her husband, which is a very archaic belief in nature. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
Violation of Article 21 in the Constitution
Exception 2 also violates Article 21 of the Indian Constitution. Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme Court has interpreted this clause in various judgments to extend beyond the purely literal explanation, it has held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and a safe environment, among others. Lately , courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity included in these broader rights to life and personal liberty. In State of Karnataka v. Krishnappa, the Supreme Court said 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 judgment, it also held that non-consensual sexual intercourse amounts to 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. Recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognizes the right to privacy as a fundamental right of all citizens and also 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''. Forced sexual cohabitation is indeed a violation of fundamental rights.
The above rule does not distinguish between the rights of married women and unmarried women and there’s no contrary ruling stating that the individual’s right to privacy is lost by marital association. Thus, it is recognized as 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. However, the apex court and the saffron government fails to recognize the cruciality of the criminalisation of spousal rape.
“RATIONALE” FOR NON - CRIMINALISATION
● DISRUPTION OF INSTITUTION OF MARRIAGE – The Supreme court stated that marriage is personal and criminalising Marital rape could lead to the destruction of the institution of marriage. They are talking about a marital alliance between a sexual violator and a victim of sexual, physical and psychological abuse. Marital rape laws would destroy many marriages by preventing any possible reconciliation, a reconciliation just like our beloved ex-CJI Mr Bobde hinted at in a minor girl rape case if the accused could marry the victim to shut the case. A perusal of these pathetic arguments would make it quite evident that these are mere fanciful, lame excuses of a male-dominated society that lack any sort of legal substance or moral force.
● IMPLIED CONSENT FOR LIFE, ONCE MARRIED - This idea that once a woman is married, she hands over never-ending, continuous sexual consent to her husband is a deeply embedded one in our society, as exhibited by a cringe-worthy and worrying vox populi in the society. But here’s the question, aren’t laws supposed to be ahead and above prejudices, the moderator of personal base emotions, as seen in the movie “Pink”, NO means NO which is only applicable to unmarried women but as soon as you say “YES” to him, you lose the right to say “NO” forever. This disposition of the society, government and the judiciary remind us of the regressive 19th century not necessarily representative of the progressive 21st century and building a country’s law on it, doesn’t really say much about the country and its law system.
● IF CRIMINALISED, MISUSE OF THIS LAW SHALL ENSUE - In an affidavit submitted to the Delhi High Court, the union government said a law criminalizing marital rape can become an “facile tool to harass husbands,” absurdly arguing “if all sexual acts between a husband and his own wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife.” Here we get to see that giving women a much-needed prerogative is rubbing the government and the judges the wrong way as it might cause a bit of probable legal trouble to the men, which is to be noted, is negligible to the trauma that victims of sexual abuse go through in a marriage. With the prevailing associated stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of sheer spite. Besides, the criminal justice system provides inherent protocols such as the requirement of proof beyond any reasonable doubt. This is no justification to say that the victims should be denied protection simply because someone might be at risk of a fabricated case, which is the condition with every other law that the country has seen over the years of supposed independence.
Many countries everywhere in the world are adopting stringent laws against marital rape and recognizing it as a criminal offence as well. Countries like Denmark, Sweden, Poland, Norway and the Czech Republic, have already criminalised marital rape, while India is still enjoying working at cross purposes.
JUDGEMENTS ON MARITAL RAPE ;
● Recently, the Gujarat High Court in its judgment on “Nimesh Bhai Bharatbhai Desai vs. State of Gujarat” while examining the law relating to sexual offences, observed that the husbands are needed to be reminded that marriage is not a licence to forcibly rape their wives at all. ”A husband does not own his wife’s body by reason of marriage and she does not in any manner, become an object of ownership. By marrying, a female does not divest herself of the human right to an exclusive autonomy over her own body and therefore, she is well within her rights to lawfully give or withhold her consent to marital coitus at any point. Marital rape exists in India, which is a highly abhorrent offence which has nulified the trust and confidence in the institution of marriage completely. A huge population of women have faced the brunt of the non-criminalization of the practice and live in abject fear for their life due to such non-criminalisation.” The Gujarat High Court was of the view that the accused must be charged for outraging the modesty of his wife and an investigation in this direction must be conducted.
● However, in another case in the Delhi High Court, the Court completely dismissed the petition to criminalise marital rape, maintaining that the drafting of the law is the function of the legislature rather than the court, while the court is more concerned with the interpretation of the law than its drafting. This reasoning was injudicious, especially in view of the Supreme Court’s unequivocal verdict in the case of K.S. Puttuswamy vs. Union of India where in it provided that the privacy of the individual is an essential aspect of dignity and that rape is a violation of a woman’s right to her bodily integrity and dignity.
● During the onset of establishing the “right to privacy” as a Constitutional Right, the Apex Court took note of the judgments on rape which hold sexual violence to be an unlawful violation of the right to privacy, sanctity and an offence against a woman’s dignity. An example could be the Case of Suchita Srivastava in relation to the issue of consent for the medical termination of pregnancy (MTP). In this case, the court directed the state to respect the reproductive rights of the woman completely. These judgments clearly demonstrate that the highest court in the nation deduced this right from a woman’s right to privacy, dignity and bodily integrity wholly.
In India, marital rape exists but not addressed. Ideal homes and families usually provide a sense of belongingness and refuge to shed all loads and burdens of the world for most of the people, but these victims do not enjoy such idealised privileges rather they feel unsafe, attacked and exploited at their homes which is absolutely intolerable and traumatising. We need to be conscious of the fact that they are not only the victims of rape but of toxic masculinity, verbal and systematic abuse, physiological and psychological battering. Therefore, there is a necessity for substantial changes in the law on sexual offences such as making them gender-neutral, sans inequalities, rather than a radical overhauling of the structure of sexual offences. The immediate need is the criminalization of marital rape under the Indian Penal Code along with a need to educate society about this crime, as the real objective of criminalizing marital rape can only be achieved through acknowledgement and challenging the prevailing myth that rape by one’s spouse is inconsequential.
The awakening and sensitisation of police, government and our judiciary are also of utmost importance, and lastly, the most basic thing needed to be done is to teach both men and women that they are equal to each other and not superior to one another. A moral, educational, financial, as well as legal support, is needed for women to get to that position where they’ve always deserved to be.
Government of India. (2009). The Constitution of India. CreateSpace Independent Publishing Platform.
H. (2020). Marital Rape - The current Legal Framework on Marital Rape in India. Help Line Law. https://www.helplinelaw.com/family-law/CLFM/the-current-legal-framework-on-marital-rape-in-india.html
I., & Prinsep, H. T. (2015). The Code of Criminal Procedure, Being ACT V of 1898: A Commentary with Notes Containing References to All Reported Cases and Orders Issued by the . . . and All Local Governments and High Courts. Palala Press.
Kandasamy, M. (2020). When I Hit You: Or, A Portrait of the Writer as a Young Wife (Reprint ed.). Europa Editions.
Ministry of Health & Family Welfare. (2019, Winter). National Family Health Survey. https://www.who.int/violence_injury_prevention/violence/global_campaign/en/chap6.pdf
Marital Rape in India. (2020). Drishti IAS. https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india
Morgan, W., & MacPherson, G. A. (2020). The Indian Penal Code (Act Xlv Of 1860): With Notes. Alpha Edition.
Wedding Season Brings More Women to Hospital with Injuries from Rape. (2021). The Citizen. https://www.thecitizen.in/index.php/en/NewsDetail/index/7/19786/Wedding-Season-Brings-More-Women-to-Hospital-with-Injuries-from-Rape
World Health Organisation. (2000). Sexual Violence. In World Health Organisation (Ed.), Sexual Violence (pp. 149–181). https://www.who.int/violence_injury_prevention/violence/global_campaign/en/chap6.pdf