Marital Rape: Whether it should be criminalised under criminal law?

Sabrina Shaikh from Rizvi Law College, Bandra, Mumbai.

Introduction

In today’s coming of age, where women are shedding their oppressed past selves, there is a huge impediment in accomplishing it comprehensively. The concept of patriarchy is a prolifically prevalent cause of the oppression of women in marriage. Though the Indian Penal Code (IPC) Section 375 provides us with the definition of rape, including all types of rape such as sexual assault, prosecution, etc it does not involve marital rape. Marital Rape is a distressing reality for countless women globally, a blot on our society that has deep roots in legal frameworks & patriarchal norms, particularly evident in the historical context of India’s legal system.

Brief History of Marital Rape

Among the most harrowing precedents of connubial rape filed in the Court, was the case of Queen Empress vs Mohan in 1881. This case requires to be mentioned particularly since it attracted a great deal of attention to the issue of marital rape. Phulmoni Devi, an 11-year-old child bride, succumbed to her injuries after her husband who was in his mid-thirties, Mohan Das, tried to consummate the marriage against the bride’s wishes.

Despite the fact that the autopsy made it abundantly clear that the cause of death was vaginal injuries, he was still exempted from the charges of rape in light of the fact that the laws on assault excluded connubial assault from the ambit of penal law. The rape laws permitted the husband to coerce sexual relations with his wife, if the wife was above the age of 10, irrespective of her consent. All things considered, Hari Mohan was charged under Sections 304, 304A, 325 & 338 of the IPC in this manner.

Statistics & Its Impact

According to UN Women, an organisation that advances women’s lawful rights, every third woman across the globe has experienced violence, either sexual or physical, by a close companion, a non-partner, or both. It states that one in seven women were expected to have suffered physical or sexual abuse at the hands of a husband or intimate partner in 2018. In the US, between 10 and 14 percent of married women experience rape at the hands of their spouses. Roughly one-third of women say they had “unwanted sex” with their spouse. In the past, the majority of rape laws said that rape included forced sexual relations with a woman rather than your wife, giving husbands permission to rape.

Current Laws Pertaining to Marital Rape

The Indian Penal Code (IPC) section 375 illustrates the crime of rape, delineating a range of sexual penetrative acts such as oral sex etc. On the other hand, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape,” according to exception number two, excluding the husband from the definition of rape even further, contingent on the age of the wife.

In the updated BNS, compared to the IPC, several notable amendments have been made, particularly in provisions regarding punishment and gender neutrality. Firstly, Section 64 (1) now stipulates a sentence of ten years to life imprisonment for rape, while Section 64(2) imposes the same penalty for aggravated forms of rape, extending potentially to the remainder of the perpetrator’s natural life. Additionally, a significant alteration involves raising the age of consent for married women in cases of rape (Section 63 BNS and s. 375 IPC) from 15 to 18 years. It’s worth noting that Exception 2 to s. 375 IPC previously exempted sexual intercourse between a man and his wife from being considered rape if the wife was not under 15 years old; however, Section 63 of the BNS maintains this marital rape exception. These changes reflect efforts to strengthen punishments and ensure gender-neutral legal frameworks.

The rationale behind Exception 2 remains opaque, prompting speculation regarding presumptions of consent within marital unions or possibly reflecting societal notions of marriage sanctity. This interpretation gains credence given other sections of the IPC that similarly exempt spouses from certain legal obligations. While Indian law does not expressly criminalize marital rape, it does address instances of non-consensual sexual intercourse under specific circumstances, such as when spouses are living apart due to judicial separation or other reasons.

Petitions seeking criminalization of Marital Rape

In 2017, a woman filed a complaint against her husband, Mr Hrisikesh Sahoo, accusing him of multiple offenses including rape, cruelty & threat to harm under the IPC 1860. The wife also accused him of assaulting his own daughter. The husband proceeded to file a petition in the Karnataka High Court, revoking exception 2 of IPC section 375 and pleaded to be exempted from his charges. “The institution of marriage does not, cannot, and, in my opinion, should not be interpreted to give some kind of unique male privilege or a permit to let loose a vicious beast. Judge M. Nagaprasanna rejected the husband’s argument that the Indian Penal Code prohibits him from being prosecuted for marital rape, ruling instead that “if it is punishable to a man, it should be punished to a man, albeit, the man being a husband” (IPC).

The husband appealed the High Court’s ruling with a Special Leave Petition (SLP) to the Supreme Court of India. On July 19, 2022, a three-judge panel that included former Indian Chief Justice N.V. Ramana and Justices Krishna Murari and Hima Kohli issued an order temporarily staying the High Court’s ruling. Nonetheless, the State of Karnataka submitted an affidavit endorsing the ruling of the High Court.

Another landmark case is, RIT Foundation vs Union of India, an NGO RTI along with other parties concurrently filed a petition in Delhi High Court challenging the Marital Rape Exception. On May 11, 2022, a bench containing Justice C Hari Shankar and Rajiv Shakdher delivered a split verdict in the case. According to Justice Shankar, the exception under the rape law is not “unconstitutional and was based on intelligible differentia”. On the other hand, Justice Shakdher, was in favour of striking down the exception on the grounds of it being “unconstitutional” as it was discriminatory and violated women’s bodily autonomy.

In the later half of 2022, Ruth Manorama, a Dalit activist, filed a fresh petition in the Supreme Court challenging the exception of marital rape. In January 2023, a bench led by Chief Justice D Y Chandrachud and Justice PS Narasimha clubbed these petitions and listed them all for a hearing on March 21, 2023. The verdict is still pending, however, the bench has agreed to do an early listing of the Marital Rape Petitions.

Why it must be criminalized – from a legal point of view.

In Joseph Shine vs Union of India (2018) Justice Chandrachud posed the question of whether a woman or a man loses sexual autonomy when they get married. I think ‘no’. In addition, he also noted that “the right to refuse sex should also exist after marriage.” recognizing the need of the hour that is the criminalization of Marital Rape.

Pursuant to the Supreme Court in the State of Karnataka vs Krishnappa (1993), “sexual violence, as well as being humiliated, is an unlawful intrusion into the privacy and sanctity of a woman.” Likewise, the court ruled that “non-consensual sexual interaction amounts to physical and sexual violence.”, for which marital rape completely constitutes all the ingredients.

In Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court equated the right to choose a sexual activity with Article 21 (right to personal liberty, privacy, dignity, and bodily integrity). The right to live with human dignity and the dignity of a woman is paramount. Marital Rape is in contradiction to the following judgment as, in marital rape, one does not get to choose or consent to the sexual activity.

The Supreme Court recognized the right to privacy of all citizens in Justice K.S. Puttuswamy vs Union of India (2017). An important aspect of privacy is decision-making privacy, particularly when it comes to decisions about one’s sexuality, procreation, or intimate relations, which is deprived to women in this matter.

The Supreme Court maintained the constitutional provision that all women, married or not, have the freedom to refrain from sexual behaviour in each of these rulings. By denying the criminalization of marital rape, we are violating the fundamental rights of a woman – the right to bodily integrity, the right to protection from exploitation, and other rights covered under sections 14 and 21 of the Indian Constitution.

India is striving to bring about equality among its citizens be it in terms of gender, caste, creed, race, or sex. However, by not criminalizing marital rape the country is depriving women of equality. It violates women’s rights by depriving them of their right to equality by not providing them equal protection under the law. This also amounts to discrimination based on the marital status of a woman, possibly discouraging them from entering the institution of marriage with their partners. Also, denying women their bodily autonomy after the change in their marital status is in direct violation of their right to liberty and life. Criminalizing Marital Rape will provide a direct legal solution to women seeking justice through law.

Contrary Arguments made against the criminalization of Marital Rape.

Some cons of criminalization of Marital Rape would be that it would be difficult to prove the occurrence of the rape. As the semen of the male cannot be used as evidence in the court, however, this is not a strong enough reason for road-blocking the criminalization of the crime that is Marital Rape. It is a common argument against the criminalization that, if marital rape would be criminalized it would hinder the institution of marriage and become an easier way for harassing spouses.

Criminalizing marital Rape is an important step towards protecting an individual’s right within marriage. Marital Rape is criminalized in over 100 countries. Institutions of marriage haven’t collapsed in those, nor are all men in jail. Contrary to fears, this legislation hasn’t led to the collapse of marriage or mass incarceration and justice within relationships.

Conclusion

While the law recognizes and makes provision for marital rape, cultural norms and pressure may in fact be the primary hurdle to aggrieved women seeking protection from the law. Public conversation, open discussion, and awareness-raising on the subject, therefore, are crucial as are legal education, legal preparation, and judicial training on the scope of the law governing rape.