Marital Rape and Legal Reform: Bridging the Gaps in Justice

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Published On: 16th November, 2024

Authored by: Vandna Singh
Kazi Nazrul University

Abstract

Marital rape is a grave violation of human rights and personal dignity, and it has become a multifaceted issue worldwide. Despite increased awareness and evolving societal norms, legal systems in numerous countries still fail to adequately address this form of violence. India is among the nations lacking specific legal protections for victims of this abhorrent crime. Although recent criminal law reforms were anticipated to include provisions against marital rape, these laws have, regrettably, perpetuated the existing status quo. Marital rape is undoubtedly ethically wrong, yet Indian laws do not classify it as a crime. It is crucial to examine this issue from both legal and moral perspectives.

This article explores why Indian laws fail to recognize marital rape as a criminal act, examining the issue from both legal and moral perspectives. Additionally, it delves into the current legal gaps surrounding marital rape, underscoring the urgent need for comprehensive reforms in this domain.

Introduction

A tweet from ‘The Times of India’ in 2023, questioning whether men would have any incentive to marry if marital rape were criminalized, sparked considerable controversy. “If marital rape becomes illegal, will men have no reason to marry?”–  while intended as satire, it highlighted a pressing issue.

India has historically endured significant suffering under various oppressive regimes, from ancient unjust rulers to colonial powers. Despite its history filled with suffering, the nation has made impressive strides in technology, infrastructure, and other areas. However, it continues to lag in implementing essential reforms, such as those addressing marital rape.

A significant portion of Indian society persists in the belief that marital rape is a non-existent concept. This belief arises from the antiquated notion that once married, “the woman becomes the property of the man” and “the man becomes the property of the woman.” Such objectifying views are inherently dehumanizing and wrong. Indian laws, hence, too, reflect this mentality, leaving victims of marital rape with no recourse.

Like rape, marital rape too is rooted in patriarchal ideologies. It is mistakenly viewed as solely a women’s issue, though it affects both men and women. The famous case of Amber Heard v. Johnny Depp, while centered around defamation, demonstrated that marriage does not prevent perpetrators from devaluing or abusing their partners. Though disheartening, this is absolutely true.

There are numerous instances where individuals are coerced into maintaining sexual relations with their partners simply because societal norms and legal frameworks mandate it.

Decoding Marital Rape

To demystify and clarify the concept of marital rape, it is essential first to understand what constitutes rape. The Merriam-Webster Dictionary defines rape using terms such as “violation,” “forcibly,” and “against a will.” Rape is a heinous, unlawful crime involving sexual intercourse against the victim’s will. How do our Indian laws define rape?

The Indian Penal Code of 1860 has been replaced by the Bharatiya Nyaya Sanhita (BNS) 2023.

Section 63 of the BNS defines rape as follows:

A man is said to commit “rape” if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or

(d) applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions: —

(i) against her will;

(ii) without her consent;

(iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;

(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;

(v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;

(vi) with or without her consent, when she is under eighteen years of age;

(vii) when she is unable to communicate consent

This definition remains unchanged from the IPC, including the exceptions. To be precise, the age specified for the wife in the exception was raised from 15 to 18.

Exceptions:

Exception 1- A medical procedure or intervention shall not constitute rape.

Exception 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Marital rape is defined as non-consensual intercourse where the victim is the perpetrator’s spouse. Indian criminal laws offer no specific protection against this crime. Women are disproportionately affected by this crime.

Around 36 countries have yet to criminalize marital rape. It is estimated that around 24% of women worldwide suffer from sexual violence inflicted by their intimate partners. According to NFHS data, 83% of married women between the ages of 18 and 49 who have ever been the victim of sexual violence name their current spouse as the offender, while 13% name a previous spouse. This data confirms the prevalence of marital rape, yet it lacks legal recognition.

These statistics are derived from reported cases. Many victims are unaware that what they experienced is wrong or unjust. Marital rape remains one of the most underreported crimes due to the perpetrator being the victim’s partner. Victims often believe it is their “partner’s right” to force them to engage in such acts. It may take years for them to realize that their experiences constitute valid cases of rape.

Chief Justice of India Dhananjaya Yeshwant Chandrachud has consistently advocated for the recognition of marital rape. In the landmark case of Joseph Shine v. Union of India, the CJI asserted that a married woman has the autonomy to make her own sexual decisions and that her husband does not own her sexuality. Similarly, on September 27, 2022, while addressing the expansion of the term “rape” under the Medical Termination of Pregnancy Act to include marital rape, Chief Justice Chandrachud emphasized the necessity of recognizing marital rape. He stated, “Married women may also form part of the class of survivors of sexual assault or rape. The ordinary meaning of the word ‘rape’ is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony.” According to the Times of India, this marked a significant moment in the history of India, as it was the first time that marital rape was recognized by the Supreme Court of India.

However, despite repeated calls for reform, no legislative changes have been made to address marital rape explicitly. The new BNS has broadened the definition of what constitutes rape and what does not. It includes specific provisions, such as Section 69, which states that marriage through deceitful means by concealing one’s identity is considered rape. However, it still fails to address provisions regarding marital rape.

Following the devastating Nirbhaya gang rape case that profoundly impacted the nation, Justice J. S. Verma Committee’s landmark report highlighted the crucial need to criminalize marital rape. It argued that marriage should not be considered blanket consent for sexual intercourse. In response, the Central Government contended that criminalizing marital rape could undermine the institution of marriage.

Marital rape, like rape, is fundamentally about power, and its severity is not diminished by the fact that the perpetrator is the victim’s partner. On August 6, 2021, the Kerala High Court made a landmark judgment affirming that marital rape constitutes valid grounds for divorce, even though it is not criminalized in India. The court emphasized that the absence of specific penal provisions for marital rape does not prevent it from being recognized as a form of cruelty that justifies granting a divorce. Consequently, the court views marital rape as a legitimate basis for seeking divorce.

It is disappointing that in many countries, marital rape is not even recognized as a criminal act, let alone a criminal offense. Unfortunately, India is also on this list. The absence of an explicit statute against marital rape reflects a cultural mindset that fails to acknowledge the lack of consent in marital relationships. Even with reforms like the Criminal Law (Amendment) Act 2013, which sought to enhance penalties for sexual offenses, marital rape continues to be exempt. The same expectation for inclusion was held for the BNS, yet the exception remains.

In India, sexual intercourse with a spouse is deemed sexual abuse only if the wife is under eighteen. This legal loophole perpetuates the denial of justice to many survivors of marital rape.

In 2023, the Supreme Court sought the Centre’s stance on criminalizing marital rape, but no reforms were enacted. A study by the Department of Community Medicine, Midnapore Medical College, West Bengal, found that 64.91% of women interviewed had experienced sexual violence from their partners. Should marriage shield individuals from such a grave crime as rape? When perpetrators disregard the “sanctity” of marriage, why should this crime not be criminalized?

According to NFHS, nearly one in three women aged 18-49 have experienced spousal abuse, and 6% report some form of sexual violence. Reports of sexual violence against married women are rare, and even fewer cases involve married men. The lack of awareness and accountability from both the government and society exacerbates the issue.

The issue of criminalization of marital rape also became a battleground of gender politics when prominent men’s rights organizations like NGO Purush Aayog Trust submitted petitions arguing that allegations of rape by a wife would be treated as absolute truth based solely on her testimony. They claimed that husbands would often be unable to provide counter-evidence due to the intimate nature of the personal and marital relationship.

Laws often emerge from cultural and societal norms that perpetuate gender bias. It is disheartening that, despite advancements in many areas, India remains stagnant in this regard. The prevalent belief that marital rape is not a legitimate concept reflects a deeply ingrained cultural mindset. Because of the prevalent beliefs in this country, marital rape is not seen as a legitimate concept, much less as something “immoral.” Consequently, the criminalization of marital rape remains distant for India.

Breaking this cycle and dispelling false narratives is crucial. Existing laws do not explicitly address marital rape. It is imperative to include a clear and precise definition of this act in the legal framework, recognizing marital rape as an unlawful act. Despite numerous petitions, pleas, and High Court judgments over the years calling for reform in the criminalization of marital rape, no changes have been implemented. A nation’s progress is also measured by its ability to address critical issues. Reforms are urgently needed to establish that marriage is not a shield from committing atrocities. In a country that honors women through various festivals throughout the year, it is equally important that women have the autonomy to consent to or refuse sexual activity.

Change starts with each of us. The absence of laws addressing marital rape is primarily because society hasn’t recognized the “need” for them. There is a lack of awareness among the people in this country. We must make relentless efforts to challenge and change the long-standing narrative that a “woman is her husband’s property” and a “husband is a woman’s property.” Furthermore, the laws that govern us should not support such outdated beliefs. Laws must reflect this shift in perspective, ensuring that they no longer endorse such notions.

References:

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