Marital Rape: A Nation’s Indecisiveness on Criminalizing a Human Atrocity

Recently in a landmark judgement, a division bench of the Kerala High Court stated that marital rape is a ground for Divorce. While there is a provision in the Indian Penal Code (IPC), punishing “Sexual Intercourse by husband upon his wife during separation”, there is no provision for marital rape. The exception 2 of the Section 375 (which defines rape) of the IPC states that sexual intercourse or sexual acts by a man to his wife is not rape given the wife is not under 15 (now 18[1]) years of age is rape. Although all of the marriage laws in India recognize cruelty as a ground of divorce in India, it is only now that marital rape too has been recognized as a ground for the same.

While marital rape is lawfully recognized as an offence in most of the nations, Indian laws remains obsolete. There have been several discussions regarding the recognition of Marital rape in India, a written reply by Minister of State for Home Affairs, Shri Haribhai Parathibhai Chaudhary to another Rajya Sabha MP states, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.[2]”

Although these kinds of arguments are facile and critically erroneous at their outset, concurrent social structure cannot be ignored. For centuries, the Indian society has been socially engineered to associate the identity of a woman with that of her husband and thus husbands have been playing the dominant role in a marriage.

Another reason why marital rape is not regarded as a serious offence in India is because authorities take pride in the prevalent low divorce rates.[3] In the pursuit of saving the institution of marriage, the state disregards its obligation to safeguard a woman’s right. They fail to understand the human rights it breaches and the social evil that marital rape brings with it. It is not understood by the society that the consequence of the same among others are domestic violence, mental trauma, suicide etc. which are mostly borne by the women of the household.

Most women acquiesce to this ordeal dreading social sanctions. The plight of such women remains at the hands of their husbands. Sex between a husband and a wife arise out of mutual participation and thus the discretion to engage in a sexual activity should not lie only with husband. It is a clear disregard of the sanctity of a marriage. The communication in marriage is of sublime importance, it should not be reduced to a contract of physical gratification. The Right to health under the constitutional Right to life entitles a person to have certain ‘freedom’ and ‘entitlement’. It includes the right to control ones’ body and health including sexual and reproductive freedom and the right to be free from interference.[4] The same should be enforced by the state.

 

 

Justice J.S Verma committee was set up on December 23, 2012 as the aftermath of the Nirbhaya Incident. It had an aim to provide for quicker trial and enhanced punishments for criminals committing sexual assault of extreme nature against women. It made recommendations on laws that relate to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.[5]

The Committee recognized that marital rape may be erroneously considered as a lesser crime than other forms of rape and a more lenient punishment may be awarded. It also identified that marital rape as a crime cannot be doused off given the relationship between the victim and the criminal, consent is not implied even if the relationship is matrimonial.

Among other recommendations by the committee, it identified and recommended the following in relation to marital rape[6]: -

1)      The exception for marital rape be removed.

2)      The law ought to specify that:

a)      A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;

b)      The relationship between the accused and the complainant is not relevant to the      inquiry into whether the complainant consented to the sexual activity;

c)      The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

 

At the International arena, the United Nations Convention on the Elimination of All Forms of Discrimination against Women in its concluding comments on India (published on February, 2007) underlined its concerns on India’s narrow definition of rape in the Indian Penal Code and the nation’s failure in identifying and criminalizing marital rape as a crime among other crimes of sexual nature.[7]

Given the findings of the committee, it urged India to realize the reality of the nature of the sexual offences faced by women in India and therefore widen the definition of rape in the India Penal Code. It also further urged the nation to remove the exception of marital rape from the definition of Rape.

To resolve the International discord on the definition of domestic abuse, the United nations identify four types of Domestic abuse which includes: - Physical, Mental, Economic and sexual.

According to the United Nations, the definition of sexual abuse involves forcing a partner to take part in a sex act when the partner does not consent. You may be in a sexually abusive relationship if your partner[8]:

●        Accuses you of cheating or is often jealous of your outside relationships.

●        Wants you to dress in a sexual way.

●        Insults you in sexual ways or calls you sexual names.

●        Has ever forced or manipulated you into having sex or performing sexual acts.

●        Holds you down during sex.

●        Demands sex when you are sick, tired or after beating you.

●        Hurts you with weapons or objects during sex.

●        Involves other people in sexual activities with you.

●        Ignores your feelings regarding sex.

 

A basic understanding of the Indian Family laws elucidates that sexual abuse is not identified in India.

It is noteworthy that even in a country like Pakistan, the concept of the offence of Rape is comparatively progressive as the Pakistan Penal code describes it as, “A man is said to commit rape who has sexual acts with a woman without her approval,”. The terminology used indicates that a man can commit the offence of rape against his wife.[9]

It may also be appalling to know that India is among the only 10 nations which have not yet recognized the offence of marital rape.[10]

For India to progress as a nation it is not only pertinent that we acknowledge and identify Marital Rape as an offence but also provide steps and measures to curtail it. It is high time that we implement the recommendations made by the J.S Verma committee and work on the advisories imparted by the UN Committee on Elimination of Discrimination against Women. Not identifying the offence has far reaching pernicious adverse consequences which not only pertains to an Individual woman or family but affects the Indian society as a whole.

Marriage is not a license of a lifetime sexual gratification. It needs to be understood by the society and the state that nonconsensual sex is Rape whether it is by a stranger or one’s husband, in the public or inside the walls of a bedroom.

About the Author

Kamin Danggen is a 2^nd year student of L.L.B at Law Center 2, Delhi University. He is interested in the study of Human Rights and International Law. He tries to be a positive force in the society by challenging and overcoming Social issues.

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[1] Independent Thought v. UOI, [2017] 10 SCC 800 

[2]  Visited on November 13, 2021

[3] Adoor, “India has the lowest divorce rate in the world: Countries with lowest and highest divorce rates” Indian today, November 20, 2018.

[4] Fundamental rights, directive principles and fundamental duties

[5]  Visited on November 13, 2021

[6] Justice J.S Verma committee, Report of the committee on amendments to criminal law, 

[7] Committee on the Elimination of Discrimination against Women Thirty-seventh session 15 January-2 February 2007, Concluding comments of the Committee on the Elimination of Discrimination against Women: India, 

[8] Visited on November 13, 2021

[9] Pakistan Penal Code (Act XLV of 1860) 

[10] Hannah Feldshuh, “Marital Rape: A Crime Left Unseen and Unspoken in the Chinese Legal System” THE DIPLOMAT, December 98, 2018