(Editor’s note: Trigger Warning for Paragraph
3: Mention of Rape)
On July 30, 2021, a two-judge bench of the Kerala High Court delivered an exemplary judgment[1] recognising marital rape as a valid ground for divorce. The judgment was perceived to be significant for acknowledging the autonomy and agency of a woman in marriage. The court said, “a husband's licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.” It also opined that the law needs to be evolved in a manner where human problems are dealt with humanely.
The court was hearing an appeal petition for divorce on the
ground of cruelty and dismissal of a petition for restitution of conjugal
rights. The couple had an arranged marriage in 1995 and have two children. The
husband is a qualified doctor but never practised, rather engaged in real estate
business and construction. The family court had ruled in favour of the wife and
the husband then moved to the High Court.
The wife, inter alia, stated the sexual perversity and physical harassment by the husband in detail. She deposed that even during her pregnancy, the appellant abused her. The husband committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The husband even did not spare her for sex on the day the appellant's mother expired. She also stated that the appellant forced her to have sex in front of their daughter.
While finding the oral testimony of the wife trustworthy and unshaken, the court said, “treating wife's body as something owing to husband and committing a sexual act against her will is nothing but marital rape.” Delivering the judgment in favour of the wife, the court said, “merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim a divorce.”
Three weeks after the Kerala High Court judgment,
Chhattisgarh High Court discharged[2] a man of the offence of marital rape after observing that “sexual
intercourse or any sexual act by a husband with his legally wedded wife is not
rape even if it was by force or against her wish”. In this case, among other
charges, specific allegations of sexual perversity were levelled against the
husband. “The husband had made unnatural physical relation with the wife many
times and also inserted his fingers and radish in her vagina, despite her
protest.” The court, however, observed that the charge of marital rape framed
against the husband is “erroneous and illegal” as in India, marital rape is not
recognised and the same is not an offence under Indian Penal Code (IPC).
Spousal exemption in the Indian Penal Code
The above-mentioned judgments which reveal contradictory views on marital rape are a reflection of the judiciary’s utter confusion on dealing with the same. In India, even when a man’s sexual conduct is so brutal and inhumane that it exceeds all notions of decency, the existing law is unequipped to call it a “crime” and prosecute the husband because of the spousal immunity in IPC. Multiple petitions have been filed in various courts across the country to criminalise marital rape. Unfortunately, none of them has reaped any benefit yet.
Section 375 of IPC[3] identifies rape as a criminal offence. Exception 2 of the section reads thus: “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” As the law stands, husbands are exempted from prosecution for raping their wives under IPC. This had also largely been the case in England, the U.S.A and many other countries.
The origin of this spousal immunity can be traced to British jurist Lord Matthew Hale’s History of the Pleas of the Crown, published in 1736. Hale infamously claimed: “a husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband which she cannot retract.”[4]
These ideas are clearly out of place today where marriage is regarded as a union of equals, and countries including the US, UK, Canada, Australia, New Zealand, Israel, Sweden, Russia, Poland and many more have shown their commitment towards gender justice by doing away with the immunity. India is among 36 countries[5] in the world where marital rape is still not criminalised. Legal luminaries have pointed out that marital rape immunity is an anomaly in Indian law considering its constitutional provisions and international obligations towards gender equality.[6]
However, the Exception was read down by the Supreme Court in Independent Thought v. Union of India[7]. Calling it “arbitrary and discriminatory and thus violating Articles 14, 15 and 21 of the Constitution”, the court declared that, “sexual intercourse between a man and his wife aged between 15 to 18 years is rape.” However, the court clarified that it is “not going into the issue of “marital rape” of women aged 18 years and above and the discussion is limited only to “wives” aged 15 to 18 years.”
The debate on marital rape in India goes back to more than a century-old case of Phulmoni[8] in Bengal. In 1889, an 11-year-old girl died after being raped by her 35-year-old husband. After this incident, the British government proposed a legislation increasing the age of consent for a girl from 10 to 12 years. However, this move invited strong opposition suggesting that attempts to make even the slightest reforms in the matrimonial sphere are a daunting task in India.
In 2013, the report of the Committee on Amendments to Criminal Law chaired by Justice JS Verma[9] recommend that the exception for marital rape be removed. But these recommendations were rejected and the Exception was kept intact.
In the 172nd Report on Review of Rape Laws,[10] the Law Commission of India refused the suggestion made by "Sakshi" an organisation that espoused the cause of women, to recommend deletion of the Exception, rather it recommended to raise the age of the `wife' from fifteen to sixteen.
In 2018, The Gujarat High Court observed in the judgment Nimeshbhai Bharatbhai Desai vs State Of Gujarat[11] that, “marital rape is a serious matter though, unfortunately, it is not attracting serious discussions at the end of the Government.”
In July 2019, The Delhi High Court[12] dismissed a petition seeking a direction to the Central Government to declare marital rape as a ground for divorce. The Delhi High Court held that it was a matter to be decided by the legislature and no judicial intervention was possible. Whether the judiciary can conveniently stay away from touching marital rape by giving the responsibility to the legislature is a question that needs to be asked.
In March 2021, while staying the arrest of the husband, Chief Justice of India SA Bobde asked,[13] "When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?" The court asked the counsel appearing for the woman to file a case for assault and marital cruelty and not for rape.
At a time when violence against women within domestic
settings has become a focal point of discussion in various media platforms and
has received responses from various organisations and the state governments,
the judgment from Kerala High Court carries a special significance. While
emphasising that the court should not wield any power to decide on the choice
of the individual, it said, “a spouse in a marriage has a choice, a choice not
to suffer, which is fundamental to the autonomy guaranteed under natural law
and the Constitution.” The verdict reiterates that it is about time we leave an
outdated legal inheritance behind and act upon the constitutional commitment to
gender equality.
How legislature sees marital rape
In India, periodic reviews and reforms of IPC have rarely been a legislative priority. In 2015, while addressing the question of marital rape in the Rajya Sabha, Minister of State for Home Haribhai Parthibhai Chaudhary said,[14] “it is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including the level of education, illiteracy, poverty, myriad social customs, and values, religious beliefs, the mindset of the society, to treat marriage as sacrosanct." In other words, the refusal to recognise marital rape as a crime stems from the patriarchal mindset that attaches sanctity to the institution of marriage, and it reinforces the patriarchal notion that a women’s body, once she gets married, is her husband’s property and her agency and autonomy over her own body cease to exist.
The introduction of a private
bill[15]
by Congress MP Shashi Tharoor in the Lok Sabha is the only step taken in this
direction in the recent past. However, it lapsed after the failure to garner
support from the elected government. Even though marital rape is a problem that
permeates every class, caste, and religion, it is yet to be a part of public
conversation and even serious attention of the parliament.
Is criminalisation the way forward?
Law’s deterrent effect on the ground is a never-ending debate topic. At the same time, the demand for the criminalisation of marital rape does not emanate from a naive belief that it will bring a sudden end to such conduct. But such a step can certainly be seen as an expression of society’s disapproval of such acts giving women the courage to speak about it.
Madhu Bala of Jagori, an NGO which works to raise awareness about violence against women, said in a report[16], “I deal with women who are survivors of violence on a daily basis. In India, no matter what the religion is, we make our husbands parmeshwars (God). While talking to us, they speak about the gaalis that are given, the physical abuse that is meted out, but when it comes to sexual violence, they are ashamed to talk about it. They would never say it directly.”
In a country where a majority of women are not even aware of the concept of marital rape, any attempts from the state to ‘protect and preserve’ the institution of marriage at the cost of women’s subjugation and endurance go against the principles of a civilised nation and everything it stands for.
About the Author
Sahla N is a first-year law student at the Faculty of Law, University of Delhi. Her principal research interest is Non-Governmental Organisations (NGOs) and their work with the Muslim community in India. Currently, her research interests include India’s citizenship and immigration laws.
[1] Live Law News Network, “Marital Rape A Valid Ground For Divorce': 15 Key Observations Of Kerala High Court-Read Judgment” Aug.6, 2021.
[2] Nupur Thapliyal, “Sexual Intercourse Or Any Sexual Act By Husband With Legally Wedded Wife Not Rape Even If It Was By Force Or Against Her Wish: Chhattisgarh HC” Aug.26, 2021.
[3] Indian
Penal Code 1860, s. 375
[4] M. Hale, Historia Placitorum Coronae
636 (1736)
[5] Anusha Agrawal, “Only 36 Countries Have Not Criminalised Marital Rape, India Is One of Them” The Leaflet, Nov. 2, 2020.
[6] Deborah Kim, “Marital rape immunity in India: historical anomaly or cultural defence?” Crime, Law and Social Change (2018) 69:91–107.
[7] W.P. (Civil) No. 382 of 2013
[8] Kanika Sharma and Ashish Gupta, “when even rape is legal” June 10, 2015.
[9] Justice Verma, “Amendments to Criminal Law” 113 (January 2013).
[10] Law commission of India, “172nd report on review of rape
laws” (March 2000)
[11] 2018 SCC OnLine Guj 732.
[12] Aditi, “Delhi High Court dismisses plea to declare marital rape as ground for divorce” July 9, 2019.
[13] Radhika Roy, “Can Sex Between People Living As Husband And Wife Be Called Rape? SC Asks While Giving Relief To Rape Accused” March 1, 2021.
[14] Kiran Bedi, “The Sordid Reality of Marital Rape” May 26, 2015.
[15] Live Law News Network, “Shashi Tharoor Introduces Bill To Make Marital Rape A Crime” Jan.2, 2019.
[16] Mythreyee Ramesh, “Indian Men Can ‘Lawfully’ Rape Their Wives: When Will That Change?” March 8, 2021.
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