Marital Rape: Legal Lacunae and the Need for Reform

Abstract

Marital rape, a form of domestic violence against women, is not recognized as an offense under current Indian law. This article highlights the critical need to criminalize marital rape and addresses key issues in the existing legal framework. We examine case studies and explore the legal arguments for and against the criminalization of marital rape, providing an analysis of its impact on victims and the broader implications of current legislation. This paper also argues for the necessity of reform in the marital rape provision, advocating for a shift toward equal protection under the law for all women.

Introduction

Marriage is often revered as a sacred institution across diverse cultures in India, particularly among Hindus, Muslims, Sikhs, Jains, and others, who view marriage as a religious duty. In Hinduism, marriage is seen as a form of dharma that purifies men, while in Islam, marriage is considered a sacred act. Socially, marriage symbolizes love, respect, and permanence. However, the sanctity of marriage should not justify the exploitation of women within it. In many orthodox segments of society, a husband’s actions are seen as above reproach, even if they involve the exploitation of his wife. Societal norms, and even legal provisions, tend to validate this view, thus implicitly endorsing marital rape.

Definition of Marital Rape

In India, marital rape is currently not recognized as a crime. Although Section 375 of the Indian Penal Code (IPC) defines rape as a crime against women, Exception 2 of this section explicitly excludes marital rape. It states that sexual intercourse by a husband with his wife provided she is above 15 years of age, does not constitute rape. Despite several amendments in criminal laws, this provision remains unchanged. The Bharatiya Nyay Sanhita (BNS), 2023, mirrors Section 375 of the IPC but increases the minimum age in Exception 2 from 15 to 18 years. Therefore, under current laws, sexual intercourse within marriage is not considered rape if the wife is 18 years or older. Legally, a woman above 18 cannot claim rape by her husband, underscoring the need for reform to protect the rights and dignity of married women.

Brief History of Marital Rape

India’s history of patriarchal norms has long denied women autonomy in marriage. Plato, in his work Republic, referred to women as communal property, a view that resonated in ancient societies where wives were seen as the property of their husbands. Crimes against women were historically treated not as offenses against the victim herself but as violations against her father or husband. This belief in “perpetual consent” underpins the legal acceptance of marital rape. English jurist Sir Matthew Hale argued that a husband could not rape his wife, as marriage implied her permanent consent. This perspective was painfully evident in the case of Phulmoni Dasi, a 10-year-old girl who died from trauma and excessive bleeding following intercourse with her 30-year-old husband. Although the husband was punished for grievous harm, he was not charged with rape, as marital relations were legally sanctioned. This tragic case led to an increase in the minimum marriageable age from 10 to 12 years, yet the issue of marital rape persisted.

Historically, the rationale for decriminalizing marital rape rests on two grounds:

1. Consent in Perpetuity: Marriage implies a wife’s irrevocable consent to sexual relations, which she cannot retract.
2. Expectations of Sexual Access: A wife is expected to satisfy her husband’s sexual needs, with both Hindu and Muslim marriages emphasizing sexual relations as an essential component of the union.

However, these justifications are increasingly seen as inadequate, failing to protect women’s rights and health.

Status of Marital Rape in India

While countries like Indonesia have criminalized marital rape, India’s legal stance remains unchanged in the Bharatiya Nyay Sanhita. The unrecognized crime of marital rape is widespread, raising concerns at the national level. According to the National Family Health Survey, 83% of women attribute sexual violence to their husbands, with 4% reporting forced intercourse, 2.1% being coerced into sexual acts, and 3% facing threats for refusing sex. These statistics highlight a significant problem that demands legal attention and reform.

Landmark Judgments

Over the years, several key judgments have shaped the discourse on marital rape:

1. Harvinder Kaur vs. Harmandar Singh, AIR 1984 DEL 66: The Delhi High Court held that marriage is a private institution and should not be interfered with by legal provisions, suggesting that the right to privacy extends to marital relations. This view was also supported by the Supreme Court in the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar case.

2. Justice Verma Committee Recommendations (2012): Following the infamous Nirbhaya rape case, the Justice Verma Committee recommended criminalizing marital rape, arguing that marriage does not imply irrevocable consent. Unfortunately, these recommendations were not enacted.

3. Independent Thought vs. Union of India, AIR 2017 SC 4904: The NGO Independent Thought filed a writ petition under Article 32, challenging the constitutionality of marital rape laws concerning minors. This led to a landmark judgment distinguishing between the rights of women aged 15 to 18 and those of adults, bringing greater scrutiny to the current legal framework.

4. Hrishikesh Sahoo vs. State of Karnataka, 2022: In this case, a woman filed charges against her husband for criminal intimidation and forced intercourse. The court included rape charges, questioning how legal provisions could discriminate against married women over 18. This case underscored the inconsistency in marital rape laws and the need for change.

Why Should Marital Rape Be Criminalized?

The debate over the criminalization of marital rape continues, with strong arguments on both sides. Key reasons for criminalization include:

1. Violation of Article 14 (Equality Before the Law): Current provisions discriminate against married women by denying them the same legal protection as unmarried women.

2. Violation of Article 15 (Prohibition of Discrimination): Exception 2 of the Bharatiya Nyay Sanhita discriminates against women above 18 based on marital status.

3. Violation of Article 21 (Right to Life and Personal Liberty): The Supreme Court interprets Article 21 broadly to include dignity, privacy, and the right to a safe environment. Marital rape can severely harm a woman’s health and well-being, infringing on these rights.

4. Contradiction with the Domestic Violence Act, 2005: This Act aims to protect women from domestic violence, yet Exception 2 indirectly condones sexual violence within marriage.

5. Breach of International Commitments: Article 26 of the International Covenant on Civil and Political Rights and Article 2 of the Declaration on the Elimination of Violence Against Women both advocate equal protection and dignity, which India’s marital rape laws fail to uphold.

Grounds for Abolition of Exception 2

Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita should be abolished as it is unconstitutional, violating women’s fundamental rights to equality, dignity, and protection under the law. Critics argue that criminalizing marital rape would entail excessive interference in the institution of marriage, threatening its privacy. However, legal oversight of private matters is neither new nor inappropriate when fundamental rights are at stake.

Need for Reform

As the primary objective of the law is to protect its citizens, it is imperative to reform Section 63 of the Bharatiya Nyaya Sanhita to protect married women from sexual violence. Studies show that victims of marital rape face severe mental health challenges, including depression and suicidal ideation. The reform of this provision would affirm the fundamental rights of married women and serve as a crucial step toward justice. It would also help change societal perceptions, reinforcing that marriage is not a license for abuse.

Conclusion

Marriage is a sacred institution, but it should not grant a husband unchecked authority over his wife. In many regions of India, marriages occur without the woman’s consent, and yet, current laws protect husbands who engage in non-consensual intercourse with their wives. India remains one of the 36 countries where marital rape is decriminalized, despite multiple opportunities to amend this provision in the Bharatiya Nyaya Sanhita. Numerous questions remain unanswered:

• Why is marital rape treated differently from other forms of rape?
• Why does the law continue to perpetuate the husband’s freedom over his wife’s autonomy?
• Why do we still follow archaic British laws from over 160 years ago?
• Why was Exception 2 retained in recent criminal law reforms?
• Why are women still regarded as subordinate in marriage?

The time for these questions to be answered is now. With a pending judgment from the Apex Court, there is hope that marital rape laws will be reformed, curbing the husband’s right to inflict harm under the guise of marriage.

Reference(s):

1. (Empress) v. (Hari Mohan Malti), 1889

2. Commercial, https://articles.manupatra.com, 28 August,2024

3. (Harminder Kaur) vs (Harmandar Singh),(AIR 1984 Delhi 66)

4. (Independent Thought) vs (Union of India),(AIR 2017 SC 4904)

5. (Hrishikesh Sahoo) vs (State of Karnataka),(2022)

6. Commercial, https://www.dristhiias.com,28 August,2024