Published On: 16th February, 2024
ABSTRACT
Marital rape, the violation of bodily autonomy within marriage, remains a pervasive yet under-addressed global issue which is not yet recognized in India. This article argues for its urgent criminalization and outlines a comprehensive approach to address this complex problem. Marital Rape has serious physical and psychological health consequences and is a violation of the fundamental rights of women entrusted in Articles 14 and 21 of the Constitution. Ultimately, it calls for a multifaceted approach that addresses both the legal and social aspects of marital rape, urging collective action to create a future where every individual, within and outside of marriage, enjoys bodily autonomy and equal protection under the law. The common law rule of marital rape exemption is based in the cultural view that marriage makes a woman part of her husband’s property, so that forced sexual intercourse is but a husband making use of his property[1]. Because women were their husbands’ chattel, they had no rights in the marriage.[2]. This article aims to serve as a catalyst for action, urging policymakers, communities, and individuals to work together toward gender equality and respect for bodily autonomy within and beyond marriage.
INTRODUCTION
Marital rape refers to non-consensual sexual acts committed by one spouse against the other within the marriage. It involves any unwanted sexual activity or penetration, where one partner forces the other to engage in sexual acts against their will. Marital rape is a violation of a person’s bodily autonomy and an infringement on their right to refuse sexual activity. Regardless of gender, sexual intercourse without consent constitutes a violation of bodily autonomy and basic human rights.
While progress has been made globally with many countries explicitly criminalizing marital rape, India currently does not criminalize marital rape. International human rights frameworks, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), call for its elimination. The Indian Penal Code (IPC) does not explicitly criminalize marital rape. Rape is defined as a male having sexual relations with a woman “against her will” in Section 375 of the IPC. The exception to this provision excludes sexual acts committed by a man with his own wife, provided she is above 18 years of age. Historically, the primary rape provision excluded married women from its protection. This non-criminalization stems from colonial-era legislation and the societal notion of marriage as blanket consent to sexual intercourse between spouses. In 2017, the Supreme Court of India, in the case of Independent Thought v. Union of India raised the age of consent for sexual intercourse from 15 years to 18 years. As a result, the exception to Section 375 of IPC stipulated non-consensual sexual intercourse with a minor wife between the age of 15 to 18 years as rape. The exception carved out in the IPC, according to the court, “creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.” [3]
HISTORY OF MARITAL RAPE
The Delhi High Court in its judgment in the marital rape case[4] regarding the validity of the Marital Rape Exception(MRE) given in exception 2 to Section 375 of the IPC delivered a split verdict with contrasting opinions of both the Judges on the Bench. Justice Shakdher ruled in favour of striking down the exception to Section 375 of the IPC holding that the exception prima facie violates the equality clause promised to its citizens under Article 14 of the Constitution. It was also cited that the exception violates Articles 15 and 19(1)(a) of the Constitution as it discriminates against women based on their marital status. “The provisions of MRE have the immediate detrimental effect of preventing a married woman from filing a complaint under the same regime as an unmarried woman who is the victim of rape. The unmarried woman is protected and/or has recourse to various provisions of the IPC and the [Criminal Procedure] Code.”[5] While Justice Shankar ruled against striking down the exception observing that no “rape” can occur within marital sexual relations envisioned in Section 375 of the IPC. Marriage is a sacred institution and to interfere in it, will ruin the sanctity of the marriage and that marriage means an implied consent to sexual activity between spouses. Another contention put forward against taking such a step was that the women may misuse the law in marital rape, if such a provision was to be enforced.
In a separate instance, women’s right to safe abortions regardless of marital status was upheld by the Hon’ble Supreme Court. It was further observed that the definition of rape or sexual assault should include marital rape for the purposes of Medical Termination for Pregnancy Act. “The exception to Section 375 of the IPC only serves as a legal fiction, excluding marital rape from the definition of rape in that section. Understanding “rape” under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down the exception to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC.”[6]
The Verma Committee Report attempted to propose amendments as a step to criminalize marital rape. It was constituted to recommend changes in the Criminal Law to provide quicker access and enhanced punishment in cases of sexual assault against women. The Committee recommended scraping of the exception to the offence of rape in relation to un-consented sexual intercourse by husband upon his wife. The relationship between the victim and the accused should be irrelevant when considering the offence of rape or sexual assault. Moreover, it is not appropriate to view marriage as an unchangeable agreement to engage in sexual activity.
As a result of the findings of the Verma Report, the Criminal Law (Amendment) Bill was drafted in 2012 but the Parliamentary Standing Committee on Home Affairs rejected the concerns raised with respect to criminalization of marital rape reasoning that “entire family system will be under greater stress and the committee may perhaps be doing more injustice.” Moreover, the other provisions under various laws like Section 498A IPC and the Protection of Women from Domestic Violence Act, 2005 were held to be sufficient to provide remedy with marriage and divorce. Therefore, marital rape could not be criminalized in India which strongly believes in the sacrosanct nature of marriage.
ARGUMENTS FOR CRIMINALIZING MARITAL RAPE
- Fundamental Right to Bodily Autonomy:
Every individual has a freedom to control their bodies. Marital Rape limits this right by infringing on an individual’s authority of consent in sexual activity. Importance has to be given to consent in all sexual activity regardless of marital status to ensure mutual respect and dignity among individuals.
- Equality and Non-Discrimination:
Denying a woman agency over her own body within marriage undermines fundamental principles of equality and non-discrimination. Every individual, regardless of marital status, has the inherent right to bodily autonomy. Marriage doesn’t negate the need for consent and not a license to disregard autonomy.
- Marriage should not be a License:
A marriage should not be viewed as a license for the husband to force sexual activity on his wife. Every woman should have equal right and authority over her body irrespective of their marital status. The right to bodily integrity and consent is implied to all individuals in the country and the violation of these rights is not unacceptable.
- Perpetuating cycle of Violence:
When marital rape goes unpunished, it fosters a toxic environment within families, normalizing violence and paving the way for further abuse. The lack of legal reforms for marital rape promotes psychological and physical harm to women. Marital rape shatters the very foundation of a familial relationship built on trust and intimacy. Holding perpetrators accountable for marital rape is crucial to break this cycle of violence. Criminalizing this act sends a clear message that such behavior is unacceptable and will be met with consequences.
ARGUMENTS AGAINST CRIMINALIZING MARITAL RAPE
- Undermines marriage as an Institution:
The privacy and sanctity of marriage are often cited as reasons not to criminalize marital rape. But this argument essentially ignores the fundamental right to bodily autonomy and integrity. Both the partners in a marriage are equals and the exception to Section 375 of the IPC weakens the very foundation of marriage as an institution.
- Misuse of Law:
The concern about false accusations and misuse of the law in cases of marital rape is the main argument against criminalizing marital rape. The vast majority of rape cases go unreported, and false accusations represent an even smaller fraction of those reported. It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A IPC which is a provision regarding harassment caused to a married woman by her husband and in-laws.
- Focus on Non-Criminal Remedies:
One of the arguments against criminalizing marital rape is the existence of other provisions of law such as Domestic Violence Act, 2005 and Section 498A IPC. Existing non-criminal remedies often focus on physical violence and lack specific recognition of non-consensual sexual acts within marriage. The Domestic Violence Act only provides for civil remedies and includes marital rape under any form of sexual abuse.
- Law Commission did not recommend the reforms:
The Verma Committee Report attempted to reform the existing laws on marital law but the Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after detailed examination of the matter did not recommend the criminalization of marital rape.
WAY FORWARD
The urgent need for legal reform to criminalize marital rape is indispensable. This is not just a legal issue; it’s a fundamental human rights issue demanding immediate action. Explicitly criminalizing marital rape within existing legal frameworks sends a clear message that forced sexual acts within marriage are unacceptable and will be met with consequences. It is important to support the survivors of marital rape. Establishing a network of safe shelters, medical care facilities, and accessible counseling services is essential. Medical care should be easily accessible and free counseling should be given to the survivors. Legal aid and financial assistance can empower survivors to rebuild their lives and navigate the legal process. Public awareness campaigns and education programs can break the silence surrounding marital rape. By educating communities, families, and individuals about consent, healthy relationships, and resources for support, we can create a society where seeking help is normalized and stigma is challenged.
CONCLUSION
The issue of marital rape cannot be relegated to the shadows. It is a complex yet undeniable violation of human rights, demanding immediate action and sustained efforts for meaningful change. While privacy within marriage is essential, it cannot be used as a shield for inflicting harm. The sanctity of marriage thrives on mutual respect and free will, not on the suppression of individual rights. Impunity for marital rape fuels domestic abuse and perpetuates a culture of violence within families. Criminalizing it sends a powerful message that such abuse will not be tolerated and empowers victims to seek justice. Criminalizing marital rape is not just about legal reform; it’s about achieving true equality between men and women. It signifies that women are not possessions or objects, but individuals with equal rights and deserving of equal protection under the law. By criminalizing marital rape, we take a crucial step towards a society where every individual, within or outside of marriage, feels safe, respected, and empowered to make decisions about their own bodies.
Reference(s):
[1] But If You Can’t Rape Your Wife, Who(m) Can You Rape? The Marital Rape Exemption Re-Examined | Office of Justice Programs. https://www.ojp.gov/ncjrs/virtual-library/abstracts/if-you-cant-rape-your-wife-whom-can-you-rape-marital-rape-exemption. Accessed 19 Jan. 2024.
[2] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harvard Law Review, 1256 (1986)
[3] Independent Thought v. Union of India (2017) 10 SCC 800
[4] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404
[5] Delhi HC’s Split Verdict on Marital Rape: Highlights of What the 2 Judges Said | The Wire https://thewire.in/law/delhi-hcs-split-verdict-on-marital-rape-highlights-of-what-the-2-judges-said
[6] X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 1321
