India: Law On Marital Rape – A Much Needed Reform In Our Legal System

Even as we celebrate 70 years of Independence, the women in our country are still not truly free and independent and continue to live under the realm of darkness and fear. It is indeed a somber reality of India.

It is a matter of concern, that while on one hand the country is celebrating some glorious decisions in the legal arena from the Hon'ble Supreme Court of India like landmark judgments in the matter of 'Adhaar Card Case' and '"Triple Talaq' creating new cornerstones for the judiciary; on the other hand, to the general disappointment, the Central Government has given its view against criminalizing marital rape, saying doing so would 'destabilize the institution of marriage'.

As observed by Justice Arjit Pasayat:

"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."

However, despite the increasing number of cases of marital rapes in our country, marital rape is not defined in any statue/ laws. It is to be noted that while 'Rape'" is defined under section 375 of the Indian Penal Code, there is no definition of 'Marital Rape' till now and there is no reorganization of marital rape under the ambit of Indian Law. It is disheartening that such a sensitive issue like marital rape is being dismissed by the highest courts of India by giving the view that "You are espousing a personal cause and not a public cause...This is an individual case."

In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes.

Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. The Hon'ble Supreme Court of India, the last hope for reforms in outdated approach towards marital rape after Parliament had hung up its boots, said that country isn't ready to accept marital rape as a crime. It can be seen that the law makers have a different view and believe marital rape cannot be applied in the Indian context because of factors like "level of education and illiteracy, poverty, social customs and religious beliefs".

Section 375, the provision of rape in the Indian Penal Code (IPC), echoes very archaic sentiments, mentioned as its exception clause- "Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape."

Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

Section 375 of the Indian Penal Code defines "Rape",

Operative part of the said section is reproduced herein below: 375. Rape.—A man is said to commit "rape" if he-—

  1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
  2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
  3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

Firstly,— Against her will.

Secondly, — Without her consent.

Thirdly, — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly, — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly, — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly, — with or without her consent, when she is under eighteen years of age

Seventhly, — When she is unable to communicate consent.

Explanation I—For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception I—A medical procedure or intervention shall not constitute rape.

Exception 2—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The primary aim of the 2013 amendment was to make much needed changes to the definition of rape and to improve women's access to the legal system. The amendments to the Criminal Penal Code and the Evidence Act were aimed at ensuring that women are not re-victimized when they approach the legal system after an act of rape against them. The amendments sought to remove irrelevant medical examinations and unnecessary questions that women were asked during cross-examination, and to facilitate better investigation and trial in rape cases. However, despite the changes in law, the law makers and the governments have taken no step regarding framing of law for Marital Rape.

Even the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 titled "The elimination of violence against women", recommended that marital rape should be criminalized.

That Article 21of the Indian Constitution, incorporates the right to live with human dignity and is a standout amongst the most fundamental components of the right to life which perceives the independence of a person. The Supreme Court has held in a catena of cases that the offense of rape abuses the right to life and the right to live with human dignity of the victim of the crime of rape

In Bodhisattwa Gautam v. SubhraChakraborty28the court held that rape is a crime against the basic human right and violation of the right to life enshrined in Article 21 of the Constitution and provided certain guidelines for awarding compensation to the rape victim.

In the landmark case of The Chairman, Railway Board v. Chandrima Das29, the Hon'ble Court held that rape is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Rape is a crime not only against the person of a woman, it is a crime against the entire society. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.

That a reading of the aforesaid cases as well various other catena of the judgments and cases,it is ample clear that such an exception as "marital rape: us violative of the basic fundamental concepts on which our entire legal system is bases and such an except damages the entitlement of women to live with dignity and encourages the society to commit crime against the women, which in itself is unacceptable and against the principle and corner stones of the Constitution of India..

That the case of State of Maharashtra v. Madhkar Narayan30 the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished.

In the landmark case of Vishakha v. State of Rajasthan31 the Supreme Court extended this right of privacy in working environments also. Further, along a similar line we can translate that there exists a right of privacy to get into a sexual relationship even inside a marriage.

In Sree Kumar vs. Pearly Karun32, the Kerala High Court watched that the offense under Section 376A, IPC won't be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. For this situation, the spouse was subjected to sex without her will by her husband when she went to live with her husband for 2 days as a result of settlement of separation procedures which was going on between the two parties. Subsequently the spouse was held not liable of raping his wife even though he had done so.

The judiciary appears to have totally consigned to the fact that rape inside marriage is impractical or that the disgrace of assault of a lady can be erased by getting her married to the attacker.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence.33 Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband. However, the same doesn't entirely protect the women from the crime has undergone.

The whole legal system relating to rape is in a mess, replete with paradoxes. The major legal lacunae that come in the way of empowering women against marital rape are:

  • The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and "right to live with human dignity" is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
  • Article 14 of the Constitution guarantees the fundamental right that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860, discriminates with a wife when it comes to protection from rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860, is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.

That it is pertinent to state that in the absence of a law, there is no data on the number of cases of marital rapes being reported. It is pertinent to note that the criminal law is in the Concurrent List and is implemented by the States. There is a vast diversity in the cultures of the states. And hence, in view of the same it is necessary for the State Government to take stringent steps in this regard. That in the era of legal reforms and revolutions, it is of utmost importance to take steps towards criminalizing marital rape so that we can move a step forward towards the road of progress in real sense. In a country like India, such a reform is far from the reality as neither the lawmakers of this country nor the Indian judicial systems are prepared to bridge the gap between marital rape and rape as they are both heinous crimes which could scar the victim for life.

Footnotes

28. AIR 1996 SC 922

29. MANU/SC/0046/2000

30. AIR 1991 SC 207

31. AIR 1997 SC 3011.

32. 1999 (2) ALT Cri 77

33. The Protection of Women from Domestic Violence Act, 2005

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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