Rape is forcible sexual intercourse committed by a man without her consent or against her will. The offense of rape is mentioned in Section 375 of the Indian Penal Code.
However, this Section has exceptions. One of the exceptions is that when a married man has unlawful sex with his wife without her consent then it is not an offense of rape. Exception 2 of Sec 375 of the Indian Penal Code provides immunity for marital rape. But if the married woman is below 15 years of age and if her husband has sex with her then it will amount to rape even if the consent was given. Marital rape is also called Spousal Rape. Marital rape is also a type of physical violence. It often includes physical abuse, mental abuse, and usage of male privilege.
When a man and woman are married, they have all the rights to have kids implying the right sexual relationship. Being married doesn’t give any right to a man to have sex with his wife even against her will. The right to have sex should be consensual and it should not be an obligation to his wife. The wife should have all the rights to refuse sex by her husband and should not be forced by her husband to do it.
This exception is the provision of Sec 375 of the IPC has been challenged in the Delhi High Court and In India, this is the first time marital rape immunity is being challenged. Almost 150 countries have criminalized rape and India is one among the thirty-six countries which still haven’t criminalized marital rape. The issue has been the subject of much debate of late in a country whose courts have increasingly been delineating the right to individual autonomy as a right that is to be cherished and protected.
According to the data from the National Coalition against Domestic Violence (NCADV) between 10% and 14% of married women will experience marital rape. Most marital rape cases are unreported and according to a study, almost 77% of women who are raped by a husband or boyfriend do not report it to the police.
VIOLATION OF WOMEN'S RIGHTS:
There are several PILs in the Delhi High Court stating that immunity to marital rape violates the fundamental rights of the women guaranteed by the Indian Constitution. Fundamental Rights which are violated are:
Article 14:
Article 14 of the Indian Constitution provides equality and the State shall not deny any person equality before the law or the equal protection of the law. It also protects people from discrimination.[3]Though the Indian Constitution provides equality, Sec 375 of the IPC, discriminates against women who are being raped by their husbands. Marital rape discriminates against married and unmarried women.
When the Indian Penal Code was framed in 1860, women were treated as their husband’s property and they didn’t have any rights over their husbands. As a result, she didn’t possess any of the rights which have been guaranteed to her. But now, women are treated equally to men and are given equal opportunities to them in all sectors.
Now that time has changed many laws protect women from harassment, violence, and assaults. The State concentrates more protection on women and their rights. Some of the statutes which protect women are the Protection of Women from Domestic Violence Act, 2005 “, The Dowry Prohibition Act, 1961, and The Immoral Traffic (Prevention) Act, 1956.
The exception of Sec 375 of the IPC violates article 14 of the Indian constitution as it does not provide an equal right to sue her husband for rape because she is married. The exception creates two classes of women; one is the married women and unmarried women. This exception immunizes those men who had committed offenses against their wives. Section 375 of the IPC only protects unmarried women and women who are below 15years of age. Thus there is discrimination against women.
Article 14 provides equality before the law to all the people. However, if there is any classification under this article then there is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. But in exception 2, no rational nexus can be deciphered between the classification created by the Exception and the underlying objective of the Act, it does not satisfy the test of reasonableness, and thus violates Article 14 of the Indian Constitution.
Article 21:
Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law”. If a female is forcefully asked to have sexual intercourse with her husband then the validity of her right to exercise her liberty is questionable and her dignity is affected as a result, Exception 2 of Sec 375 of the IPC violates Article 21 of the right to live with dignity as it fails to protect married women from punishing her husband for forceful sex as a result of which it affects the mental and physical health.
Article 21 also includes the right to health, a safe environment, safe living conditions, privacy, and dignity. In-State of Karnataka v. Krishnappa, the Supreme Court held that rape is not only an inhuman act but also an act that violates the right to privacy and sanctity of a female which is granted under article 21.
In the Indian Constitution, there is no right to sexual privacy, however, in the case of States of Maharashtra v. Madhukar Narayan, the Supreme Court held that every woman has the right to have sexual privacy and it cannot be violated by any person. In the landmark case of Vishaka v. State of Rajasthan, the right to privacy was extended to the working environment also.
In Justice K.S. Puttuswamy v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”[9] The Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution. Thus marital rape immunity violates Article 21 of the Indian Constitution.
EFFECTS OF MARITAL RAPE:
The forceful sex by the husband on his wife has a long-term effect on his wife. They undergo pain, humiliation, and domestic violence. It affects the physical and mental health of women.
PHYSICAL EFFECT: The physical effects of Marital Rape include injuries to private organs, bruises, torn muscles, lacerations, fatigue, fractures, etc. Women also go through some problems due to marital Rape like miscarriages, infections infertility, and also the chances of diseases like HIV, etc.
Women who are subjected to rape, suffer from other complications like blackened eyes, broken bones, and wounds inflicted by any sort of weapon, during sexual violence.
PSYCHOLOGICAL EFFECTS: Surviving experiences of sexual assault may have a big impact on how you see yourself, others, and the world. It may also affect how you view sex, love, and relationships. “It’s a form of trauma,” Cassell says. “And as with all traumas that aren’t treated, it may lead to physical and mental health conditions.”There’s no way to react to sexual assault by an intimate partner.
A woman who goes through rape by her husband suffers a lot. Her mental health is affected to such an extent that she may feel depressed, and lonely and might also have post-traumatic stress disorder (PTSD). There are also chances that she might get suicidal thoughts. Thus rape by a husband has an impact on both the physical and mental health of women.
The exception to Section 375 read down in 2017:
Before 2017, a girl between the age of 15 and 18 was not protected by rape laws if her husband had non-consensual sexual intercourse with her
Significantly, the Supreme Court in Indian Thought v. UOI read down the said Exception insofar as it relates to a girl child below 18 years. The Court opined that the “right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offense under the IPC.”
The Court further held that the Exception is arbitrary, capricious, whimsical, and violative of the rights of the girl child.
Marital Rape can be a valid ground for divorce: Kerala High Court
In August 2021, the Kerala High Court in a landmark judgment said that marital rape, although not penalized in India, would be a good ground for divorce. A Division Bench of Justices A Muhamed Mustaque and Kauser Edappagath held,
“We, therefore, are of the view that marital rape is a good ground to claim divorce…In modern social jurisprudence, spouses in a marriage are treated as equal partners and the husband cannot claim any superior right over the wife either with respect to her body or concerning individual status. Treating wife's body as something owing to husband and committing a sexual act against her will is nothing but marital rape.”
While hearing a case seeking the striking down of Adultery as an offense, Justice DY Chandrachud of the Supreme Court in 2018 made his stand on the issue of sexual autonomy of married women clear. He observed during that hearing,
“Does a woman or man lose their degree of sexual autonomy after marriage? According to me ‘no'...The right to say “no” (to sex) should be there after marriage also
The Gujarat High Court in 2018 paved the way for a discussion on the abolition of the marital rape exception. In Nimeshbhai Bharatbhai Desai v. the State of Gujarat, Justice JB Pardiwala held,
"The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized.”
On the arguments that marital rape will be misused after criminalization, and that it will pose a threat to the institution of marriage, using domestic violence laws as a standpoint, the Court held,
"It is not true that the private or domestic domain has always been outside the purview of the law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of 'implied consent' in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.
Recommendations by expert committees:
In the year 2013, the report of the Committee on amendments to Criminal Law, headed by former Chief Justice of India JS Verma recommended that the Exception be removed.
While doing so, the Verma Committee also referred to how the criminalization of marital rape should be accompanied by some changes in the attitude of prosecutors, police officers, and society at large.
“For example, in South Africa, despite these legal developments, rates of marital rape remain shockingly high. A 2010 study suggests that 18.8% of women are raped by their partners on one or more occasions. Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape. Changes in the law, therefore, need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship.”
On the other hand, the Law Commission of India in its 172nd report refused to recommend the deletion of the Exception regarding marital rape.
Suggestions:
There is often a criticism that if marital rape is criminalized it will affect the institution of marriage. Marriage is a social institution with a moral obligation; it forms the core of families and promotes social stability. The most important community within a virtuous society is the family and the core of a virtuous family is the institution of marriage. But when a man forces his wife to have sex with him forcefully how can that be a good institution for marriage?
Another criticism of the criminalization of marital rape is that what if the law of criminalization of marital rape is misused?
In law there are loopholes and there will always be people misusing the law but the greater good should prevail. Criminalizing marital rape is not only a women’s right but a human right.
CONCLUSION:
By this, I would like to conclude that exception 2 of Section 375 of the IPC violates Articles 14 and 21 of the Constitution. Consent is consent and rape is rape, it is immaterial whether they are married or not. The crime of rape which has happened has to be punished and it should not consider the factor of marriage. It’s high time to criminalize marital rape in India. Surveys have said that one in three has faced some violence from their spouse. Consent is consent it does not matter whether she is married or unmarried.
It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down or sex is the same for everyone.
Footnotes
[1] Erika W.Smith, 5 Statistics that’ll Change How You Think About Marital Rape, Oct 4th 2019, https://www.refinery29.com/en-us/marital-rape-in-relationships-statistics
[2] Ibid.
[3] https://indiankanoon.org/doc/367586/
[4] Shiksha, reasonable classification under Article 14, http://www.legalservicesindia.com/article/1061/Reasonable-Classification-under-article-14.html
[5] https://www.careerlauncher.com/upsc/article-21/#:~:text=Article%2021%20of%20Constitution%20of,2)%20Right%20to%20personal%20liberty.
[6] The State of Karnataka v. Krishnappa, (2000) 4 SCC 75
[7] States of Maharashtra v. Madhkar Narayan, AIR 1991 SC 207
[8] Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[9] Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161
[10] Ibid
Thought provoking article.