Disclaimer:  The views, opinions, and findings expressed in this article are those of the author and do not necessarily reflect the position or policy of the Editorial Board or Management of JLTP or the Governing Body of Young Lawyers Forum.

1.  Introduction

Rita, a girl, who was born and brought up in a typical Indian family, was always taught to be obedient and respectful to elders, especially the male members of the family, such as her father, brother etc. She was nurtured to be the woman who will accept every act of her male counterpart; be it father or husband; to be infallible. It was only weeks into her marriage when her husband started beating her even for trivial work such as not cleaning the house or utensils perfectly. This beating was occasionally accompanied by sexual abuse. Her upbringing and years of being in a patriarchal system made her believe that the domestic abuse and sexual abuse by her husband were normal and a part of married life. For her, submission to the whims and fancies of her husband was nothing more than obeying to the orders of ‘HER LORD’. And Rita died one day because of injuries all over her body, including her private parts, and a fractured arm. But until her death, she continued to be the obedient girl as she was born and brought up and conditioned to be.

The above narrative might seem disturbing to some and normal to others because “it’s not battering but husband’s love and affection”, is what we all have heard growing up. But the data from National Family Health Survey-5 (hereinafter referred to asNFHS-5) 2019-21 and National Crime Records Bureau (hereinafter referred to as NCRB) is surely disturbing. According to NFHS-5 every married woman between the ages 18-49 (24.2% in urban and 31% in rural) has experienced spousal violence.[1] Spousal violence includes both physical and sexual violence as per the survey. And, as per NCRB’s latest report of Crime in India 2020, a total of 3,71,503 cases were registered of crimes against women. Of these majority of cases i.e., a total of 30% are of cruelty by husband and relatives and 7.5% are of rape.[2]

The aforementioned figures are mere reflections of problems existing in society. The reasons are simple mostly the victims are unaware of their rights & victimization and don’t prefer to come forward to expose such instances due to the social stigma attached. The patriarchal setup of society in which Indian women are born and brought up is responsible for this kind of women’s unawareness and their lack of desire to come forward and take a stand for their own. This position further results in marginal reporting of cases.

2. Understanding ‘Marital Rape’

Section 375 of the Indian penal code (hereinafter referred to as the IPC) defines the offence of ‘Rape’ in wider terms to cover all sorts of penetration, insertion, and oral application through the use of his mouth to vagina, urethra, and anus of the woman; or compel her to do such thing with himself or any other person. The degree of penetration, and insertions under section 375 of the IPC however slight, will be considered an offence in accordance with the provisions of this section. The offence of rape in essence contains the idea of coercive non-consensual sexual intercourse.

It may also be consensual when the consent is obtained under the fear of death or hurt for her or any loved ones; or due to unsoundness of mind, intoxication; or under any other influence. This kind of consent is not free consent and therefore acts committed amount to the offence of rape.

When rape is committed within the bounds of the institution of marriage then the act falls in the ambit of marital rape. Thus, Marital rape is the sexual abuse by the intimate partner. Also, in the words of Justice Pardiwala:

“Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.[3]

Marital rape depending upon the use of force, acts and reasons can further be categorized as-

a)     Violent Rape or Battering Rape, where the victim is subjected to rape as well as physical violence, causing injury to her body and private parts. The incident of Rita described earlier very well fits into this category. This head of the categorization is a true reflection of the acts and incidents of “against her will” of section 375 IPC.

b)     Force Only Rape, where the victim is subjected to only the amount of force necessary for her to submit to the act of husband and;

c)     Sadistic or Obsessive Rape: The victims are subjected to forceful sexual intercourse as a power show of dominance by the husband.

3. Why is this a problem?

Like many other cultures, in India, the institution of marriage forms the basis for sexual relationships. Thus, the sexual abuse and physical abuse within marriage still remaining a grey legal area, is a problem. This becomes more worrisome with the facts and figures of NCRB on domestic violence and abuse of women. The underestimation of the data, the unawareness about victimization, the patriarchal setup in Indian society and the social stigma attached to the word ‘RAPE’ adds to the problem.

Moving further the notion or the understanding that “the husband cannot be held guilty of rape committed by himself upon his lawful wife”[4]dates back to the 17th century. Justice Hale in the case of Roe v. Wade had supported the concept of spousal immunity. Since then, the times have changed and so have the concepts of privacy, life, health, and dignity of the individuals.

In India, under section 375 of IPC, the absence of consent is paramount for considering whether any act is an offence under the Code or not. The objective of lawmakers in having a provision like this was clearly to make non-consensual acts of sexual intercourse a formidable act. Similarly, the words of Justice Krishna Iyer bring out the judicial intent, in the case of Rafiq v. State of UP he said that the murderer kills the body of a victim, but the rapist kills the soul.[5]Thus, we can consider the offence of rape as serious as the offence of murder. And section 375 of IPC plays a crucial role in providing justice to victims of rape, sexual abuse the so-called soul murderers by recognizing the act as an offence in its broader sense.

Supreme Court has been active in providing justice as and when the need arises in the concerned regard. Recently, in the case of Independent Thought v. Union of India[6]the Hon’ble Court has safeguarded the rights of married minor girls and done away with exception 2 to section 375 of the IPC. In this case, the Court explicitly said that it was concerned with marital rape of minors below 18 years.

In the aforementioned case, the SC addressed the issue regarding the protection of married minor girls from sexual abuse by their spouses but refrained from addressing the plight of married women who were above 18 years of age. The matter of concern arose because of the difference that was created between the married women of the age group 15-18 and the ones above 18 years of age. The forced sexual acts committed by husbands upon their wives who were aged less than 18 years were criminalized but the situation stood still for the married women above 18 years of age.

4. Judicial Approach: Recent Trends

Few High Courts in India have given judgments, some of them fall in favour of the criminalization of marital rape and some still stay away from it in the name of interfering with the sanctity of marital relations. For instance, the Gujarat High Court, in the case of Nimeshbhai Bharatbhai Desai v. State of Gujrat[7] was of the view that nonconsensual act of sexual relationship with the wife violates trust and confidence within a marriage. And the prevalence of such acts i.e., marital rape; in India has damaged the institution of marriage.[8]

While recently Delhi High Court in the case of RIT Foundation v. UOI and others[9] delivered the judgment on the constitutionality of marital rape. The split verdict of the 2 judges’ bench can be considered a step back from their peer courts. As Justice Sakhder ruled against striking down the marital rape exception and upheld its constitutionality.

Similarly, Justices in Hrishikesh Sahoo v. State of Karnataka[10] have held in favour of charging husbands guilty of raping their wives under section 375 of the IPC. For them, the meaning and notions of consent are the same within and outside the institution of marriage. And absence of the same was considered a determining factor for one to be charged under section 376 of the IPC.

Since different High courts had different opinions, the intervention of the Supreme Court became necessary. The Supreme Court, thus, asked the Union of India on 16th January 2023 to file an affidavit concerning the constitutional validity of the marital rape exception. The court also asked parties to submit written statements by 03rd March 2023.[11] The matter was first listed to be heard on 09th May 2023 and further hearings and final verdict are still pending.[12]

5.  Arguments in Favour of Criminalization of Marital Rape

Let us consider why sexual abuse by intimate partners; marital rape; be criminalized. Among many reasons, some are listed below: -

Ø  The 172nd Law Commission’s Report (released in March 2000) which reviewed rape laws, has sought to widen the definition of rape in India i.e., section 375 of IPC. The report also said that “the forced sexual intercourse by a husband with his own wife should be considered as an offence, just as physical violence by a husband against his wife.”[13]

Ø  The Convention on Elimination of Discrimination against Women (hereinafter referred to as ‘the CEDAW’) categorically encompasses marital rape as violence against women in its general recommendation number 24.[14] Though it is not a binding legal authority the parties are obliged to take necessary steps. And states’ failure to criminalize might be seen as de facto permission for this crime.

Ø  The Justice Verma Committee, which was set up in the aftermath of the 2012 Nirbhaya Gang Rape case, also recommended in favour of the criminalization of marital abuse regardless of the age of the victim. By removing the exception 2 to section 375 of the IPC, women will be given a safer environment away from abusive intimate partners.[15]

Ø  The act of rape apart from being a ‘crime against women is also a crime against a society as it violates the basic human rights enshrined in Article 21 of the Constitution of India.’[16] In addition to this, the implied fundamental rights such as the right to health, the right to privacy and the right to live with dignity are also affected.

Ø  The exception II of section 375 of the IPC is also violative of the fundamental rights of women under articles 14 and 15. There is no reasonable difference for considering non-consensual sexual acts to married women of different age groups as different. The meaning of “no consent” should be the same for all. Be it married or unmarried women or married ones but belonging to different age groups.

Ø  Marriage stands on the pillars of trust, respect, and love. When a man forces himself upon his wife i.e., has a sexual relation without the latter’s consent, he not only breaks the trust, but the sanctity involved in the institution of marriage. Along similar lines, Gujarat High Court said that “non-consensual act of marital rape violates the trust and confidence within a marriage and prevalence of marital rape in India is what has damaged the institution of marriage”.[17]

   5.1  Apart from these legal reasons, some other supportive arguments are: -

Ø  Men and women are now on equal footing in this 21st century. Both are considered independent and separate legal personalities. And, thus the consent of the wife shall not be seen as one with the husband’s consent.

Ø  As discussed above in the words of Justice Krishna Iyer ‘the act of rape rips off the soul of a person’, it is more disheartening when someone very intimate to you is involved. The mental repercussions and physical health of the same are very deep and hurtful.

Many would argue that we have other laws to resort to while dealing with the alleged rape by a husband. But provisions like 498A, 304B of the Indian Penal Code, the Domestic Violence Act which provides remedies that are only civil in nature and insufficient to deal with the act of marital rape. In other words, “Lawlessness is abetted by a laggard, long-lived, lacunose, and legalistic litigation syndrome rather than by less harsh provisions in the Penal Code. The focus must be on the evil, not its neighbourhood.”[18] Thus such arguments given can be said to be baseless.

The above-mentioned reasons and discussions make it seem that the need of the hour is penalizing the act of marital rape in India. It along with bringing safer environments for women will also bring parity in law regarding married women being sexually abused by their partners. 

6. What can be done at ground level?

Until any law is brought into the picture criminalizing the offence of marital rape, the following measures may be taken into consideration to address the menace of sexual abuse by the partners:

1. The first and foremost thing that can be done in this regard is to spread awareness about the underlying issue. Making women understand their rights and the importance of consent in marital relationships. Telling them not to be victims at the hands of husbands at the behest of marriage. By getting married, they didn’t give up their ‘right to say no’ and only lived at the whims and fancies of their husbands.

2. Men and the public, in general, can be made aware of the importance of having equal, healthy relations with their peers and empathizing with victims of marital rape. So that feelings of shame, and being blamed by relatives, and service providers (including police and medical professionals) may not dissuade them from seeking help.

3. The provision of compensation for medical and legal aid be extended to victims of marital rape too.

4. The matters are heard and tried in fast-track courts and in a time-bound manner it can help lessen the ordeal of victims.

5. Technology too can help in the form of online programs, online social media campaigns, counselling, and support groups online. For instance, the newly developed apps i.e., SAAHAS have helped immensely in reporting and assistance of gender-based violence victims, and marital rape being one of a kind. Following are the ways technology can be used to address the concerned issue:

Ø  ‘Coming out’ about the abuse helps in providing physical and mental support to survivors.

Ø  Understanding their rights and ways to report the incident.

Ø  Peer program training can become easier as a feeling of oneness is easily achievable through social media campaigns (like #Metoo, and #Marriagestrike). These inform the victims and sensitize people or the general public about the stigma attached to acts like marital rape.

Ø  Hotlines, counseling support services etc., can help in evidence-based and recent data collection. This can further assess the existing situation of area and society; and thereby help in terms of law and policy making.

7.  Conclusion

Marriage in no sense should be seen as a license to rape and not be considerate of wife’s consent. Giving blanket spousal immunity to husbands would make consent an impertinent factor when it comes to sexual abuse. The exception II of section 375 of IPC can be amended or removed so as to bring all married women on equal footing.

The courts have been reluctant to criminalise such acts because that would mean creating a new offence. According to the Hon’ble Judges, the creation of law is the work of the Parliament or the State Legislature. Intruding into the legislature’s domain is probably keeping them away from making marital rape a criminal offence. But through this article, we hope that voice reaches to the masses, and we have a Supreme Court decision that would change the scenario for the victims of marital rape.

By this article, we surely want to be a part of the voices in favour of criminalizing marital rape. Also, ask women to raise their voices against the situation and not be another Rita who died at the hands of this evil. The burden falls upon men too, to consider their wives as better halves and nothing less.

The lawmakers should understand the existing situation and the need for time and work towards criminalization of marital rape before the situation falls out of hand. India is surely a culture with progressive thinking so, it is time that we remove the only distinction that remains between the different ages of marital rape. Such initiatives are surely taken with a responsibility that the deterrent law is used only for the protection of victims rather than the misuse. The wives should not abuse these laws by bringing innocent men under the scrutiny of such laws when created.

References:

[1] National Family Health Survey 2019-2021, MINISTRY OF HEALTH AND FAMILY WELFARE (July 05, 2022, 4:20 PM), http://rchiips.org/nfhs/NFHS-5Reports/NFHS-5_INDIA_REPORT.pdf

[2] Crime in India 2020, NATIONAL CRIME RECORS BUREAU (July 05, 2022, 5:30 PM) https://ncrb.gov.in>sites>files>CII%202020%20Volume%201.pdf

[3]Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2017 SCC OnLine Guj 1386

[4] Michael Gary Hilf, Marital Privacy and Spousal Rape, 16 NEW ENGLAND L. REV. (1980)

[5]Biswarajan Panda, New definition of rape after the criminal law amendment act, 2013, LAWYERS CLUB INDIA (Aug 13, 2023, 5:00 PM),

https://www.lawyersclubindia.com/articles/new-definition-of-rape-after-the-criminal-law-amendment-act-2013-9000.asp

[6] Independent Thought v. Union of India, (2017) 10 SCC 800.

[7] Hilf, supra note 4

[8] Id.

[9] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404.

[10]Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371.

[11]Supreme Court to hear pleas seeking to criminalize marital rape on May 9, LEGAL VIDHIYA (Mar 23, 2023, 03:14 PM), https://legalvidhiya.com/supreme-court-to-hear-pleas-seeking-to-criminalize-marital-rape-on-may-9/

[12] Padmakshi Sharma, Supreme Court Agrees To Consider Early Listing Of Pleas Challenging Marital Rape Exception, LIVELAW (Mar 23, 2023, 03:24 PM),

https://www.livelaw.in/top-stories/supreme-court-agrees-to-consider-early-listing-of-pleas-challenging-martial-rape-exception-233067?infinitescroll=1

[13] Law Commission Report No.172, (2000), LAW COMMISSION OF INDIA (Aug 02, 2023, 09:10 AM), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082487.pdf

[14]General recommendations made by the Committee on the Elimination of Discrimination against Women, UN WOMEN (July 01, 2023, 08:00 AM), https://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm.

[15] PRS Legislative Research Committee on Amendments to Criminal Law Report, (2013), PRS INDIA (July 02, 2023, 01:00 PM),

https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary

[16] Saksham Gadia, Decoding the Conundrum of Marital Rape - An Analysis of Marital Rape in India, 28 SUPREMO AMICUS 473 (2022)

[17]Id.

[18]Rafiq v. State of UP, AIR 1981 SC 559.