Criminalization Marital Rape

Context:

Recently, a batch of petitions seeking Criminalization Marital Rape, has been filled in the Delhi High Court.

• In response to it the Union government has replied that it is considering a “constructive approach” towards criminalizing it and had sought suggestions from various stakeholders.
• The petition seeks to amend the criminal law, which includes Section 375 (rape) of the Indian Penal Code (IPC).

About Marital rape 

• Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
• Rape in India continues with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. 
  • They deny married women equal protection of the laws guaranteed by the Indian constitution.
• Today, more than 100 countries have criminalized marital rape but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized

Criminalization Marital Rape:

According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offense. However, India is one of the countries where marital rape is yet to be even recognized.

Recently, the Kerala High Court held that acts of sexual perversions of a husband against his wife amounted to (mental) cruelty and was, therefore, a good ground to claim divorce (since marital rape is not a punishable offence). The Court also said that in modern social jurisprudence, spouses are treated as equal partners and a husband cannot claim any superior right over his wife either with respect to her body or with reference to her individual status.

In another case, the High Court of Chhattisgarh heard a criminal revision petition on the charges framed against the husband based on the allegations of his wife. The High Court upheld charges under Sections 498A (cruelty towards wife by husband or relatives) and Section 377(unnatural sex) but discharged the husband under Exception 2 to Section 375.

These cases again put a spotlight on debates around marital rape in India.

Data Analysis (India):

• Domestic violence in India is an entrenched problem, and it has only been exacerbated in recent years. About 70 per cent of women in India are victims of domestic violence.
• However, one of the most horrifying and repressive issues with the Indian legal regime is that marital rape is not criminalized .
• National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 reported that a woman is raped every 16 minutes and every four minutes, she experiences cruelty at the hands of her in-laws.
• National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
• According to one study by the UN Population Fund, more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex.

Legal provisions 

In India, marital rape is not defined in any statute or law.

• Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offence and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor.
  • However, according to Exception 2 to Section 375 “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape
• However, in a landmark judgment in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18
• The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.

J. S. Verma Committee Observations:

• It had recommended the removal of the marital rape immunity.
• The report underscored the fact that marital rape immunity had been withdrawn in most foreign jurisdictions.
• According to the Report, the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. 

What is the court Judgments on Marital rape?

Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) case: In this case, the Gujarat High Court elaborately dealt with the issue of marital rape. The court stated that “making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape”;

However, due to the non-recognition of marital rape as a crime, the court held that the husband is liable only for outraging her modesty and unnatural sex.

Independent Thought v. Union of India (2017) case: In this case, the SC has criminalised sexual intercourse with a minor wife aged between 15 and 18 years. But, the SC refused to delve into the question of marital rape of adult women while examining an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife.

Reasons behind Marital Rape:

Challenges in Provisions

• First, the marital rape exception is inconsistent with other sexual offences, which make no such exemption for marriage.
• Thus, a husband may be tried for offences such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man but not for the marital rape.
• As a result, penetrative intercourse that is penile-vaginal is protected from criminal prosecution when performed by a husband with his wife, even when done forcibly or without consent.
• If there is an underlying rationale to this extremely limited exemption, it is not immediately clear.

Deep rooted Patriarchy

• The marital rape exception is an insult to the constitutional goals of individual autonomy, dignity and of gender equality enshrined in fundamental rights such as Article 21 (the right to life) and Article 14 (the right to equality).
• In Joseph Shine v. Union of India (2018), the Supreme Court held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage.
• The marital rape exception betrays a similar patriarchal belief: that upon marriage, a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered.
• Her husband is her sexual master and his right to rape her is legally protected.

Destroy the Basic Institution of Marriage

• A commonly cited rationale for preserving the marital rape exemption is that recognising marital rape as a criminal offence would ‘destroy the institution of marriage’.
• This was the government’s defence in Independent Thought v. Union of India (2017).

Challenges in ascertaining the conviction:

• Another argument frequently raised against the criminalization of marital rape is that since marriage is a sexual relationship, determining the validity of marital rape allegations would be difficult.

Arguments for criminalizing Marital Rape

• A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
• The doctrine of Coverture: The marital exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms that did not recognize men and women as equals.
  • It  did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
• Article 14: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
  • Further, a married woman has the same right to control her own body as does an unmarried woman.
• Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution. 
  • Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21
  • 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 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.
• Rape not ground for Divorce: As marital rape is not a ground for a divorce in any personal laws and even the Special Marriage Act, 1954, It cannot be used as a ground for divorce and cruelty against the husband Thus, the women remain helpless and keep suffering in silence.
• Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.
  • A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life .
• Criminalizing marital rape: Itwill ensure that women remains safer from abusive spouses and they can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse  
  • Much of the developed world has criminalized it. The even United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991.
• The JS Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape

Arguments Against criminalizing Marital Rape

•  Destabilize marriage as an institution: It may create absolutely anarchy in families and destabilize the institution of marriage and thereby destroy the family platform which upholds family values and helps in sustaining the country.
  • Indian society believes that marriage is a sacrament
• Misuse of law: It may become an easy tool for harassing the partner by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
• Awareness is more important: Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.
• Diversity in Cultures of the states: India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
  • Also, criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states

• Law Commission has not recommended: Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.
• No violation of Article 21: Non-criminalisation of marital rape is “not a violation” of Article 21 of the Constitution as a wife is not compelled to live with a sexually abusive husband under personal law.
• Implementation issues: Criminalizing marital rape will create serious implementational issues like
  • If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife who cannot always be trusted.
  • What evidences the courts will rely upon in such circumstances, as there can be no lasting evidence in case of sexual acts between a man and his wife

Way Forward

Not Against Institution of Marriage: 

• The government defended exception to marital rape in Independent Thought v. Union of India (2017) saying it against the institution of marriage.
• However, rejecting this claim, the Supreme Court observed, “Marriage is not institutional but personal– nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
• In this context, marital rape can be taken out of the exception.

Criminalize the Marital Rape: 

• The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.
• In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.

Justice Verma Committee Report: 

• The JS Verma committeeset up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the criminalisation of the marital rape.
• By removing this law, women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.

Women’s Rights Awareness Programme: 

• Awareness campaign based in Kenya can provide shelter, counselling, practical and legal advice and other services to survivors of gender based violence.
• Educational and prevention programs on local, state, and national levels can be initiated for spreading awareness.

Legal bottlenecks

• It is shocking that Exception 2 to Section 375 of the IPC survives to this day.
• Antithetical to the liberal and progressive values of our Constitution, and violative of India’s international obligations under instruments such as the Convention on the Elimination of All Forms of Discrimination against Women, the provision underlines women’s subordination to men, especially within marriage.
• In 2017, the Supreme Court, in Independent Thought, had read down the exception so that husbands who raped their minor wives could no longer hide behind it.

Conclusion:

• Societal change is very important.
• It is not only patriarchy or misogyny that needs to change, we need to challenge notions about the sanctity of marriage.
• We need to check ourselves every time we indulge in blaming the victim.
• We also need to challenge our conservative mindsets when it comes to discussing sexual offences or offences that take place within the family.

Source: The Hindu

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