If society itself normalises the act of men abusing or raping their wives, then misogynistic minds are bound to breed. We need to legalise marital rape
The year 2018 was monumental for the development of civil rights in India. From ensuring that homosexuals are treated as equals, as mandated by the Constitution, to the symbolic grant of equality to women to enter the Sabarimala temple — the Supreme Court took huge steps towards making it certain that citizens of India are treated with equality and dignity.
In stark contrast to these prolific developments, marital rape continues to be sanctioned by criminal laws of the country that too in flagrant violation of Constitutional and moral principles. However, recently, a valiant effort was made by Congress leader Shashi Tharoor in the Lok Sabha wherein he introduced a private Bill titled, ‘Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018,’ which among other things, seeks to criminalise marital rape. Marital rape finds its mention and validation under Section 375 of the Indian Penal Code (IPC), wherein exception 2 of the Section reads as follows:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”
The inception of this exception under Section 375 of the IPC can be traced down to Sir Matthew Hale’s judgement in the 17th Century England which stated that the “husband cannot be alleged guilt-ridden of rape committed by himself upon his lawful wedded wife, for by their shared nuptial consent and contract, the wife gives herself to the husband which she cannot withdraw.” While the United Kingdom (UK) has made progressive changes to its laws to do away with this exception, India still stands stagnated with the 17th Century clause. It has failed to make marital rape a criminal offence.
The need to criminalise marital rape as expeditiously as possible arises from its widespread practice. The National Family Health Survey conducted in 2018 reported that more than 80 per cent of the married women experienced sexual violence at the hands of their spouses. A 2014 survey of around 10,000 men reported that almost one-third of them had sexually assaulted their wives.
What’s more astonishing than these numbers is the fact that due to its widespread and continuous existence, people of this country have normalised their behaviour towards marital rape and most women have, unfortunately, accepted their fate. This can be seen in a report by the United Nations, which stated that 69 per cent of the Indian women agree that occasional domestic violence is acceptable, including the times when they refuse to have sex.
Despite this, attempts have not been made to criminalise this inhumane act. The Justice Verma Committee, formed to strengthen anti-rape laws in India post the Nirbhaya rape incident, had suggested deleting the exception of marital rape. However, the panel’s suggestion could never find its way into the law. The Committee had cited the recommendation made by the UN Committee on the Elimination of Discrimination against Women (CEDAW) to India, where it was suggested that India should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…”
The legality of marital rape isn’t just a sanction to a moral crime but also a fraud on the Constitution because it violates both, the right to equality of women as well as their right to life and personal liberty. Article 14 of the Constitution ensures that everybody be treated equally by the law. Therefore, any classification that is made in an arbitrary or unreasonable manner, is outside the purview of the Constitution.
Further, Section 375 of the Constitution essentially ensures safety and security of the women against immoral sexual assaults and illustrates the responsibility of the state in guaranteeing the same. However, the exception of marital rape creates a class difference between women on the basis of their marital status.
Marital rape also stands in flagrant violation of Article 21 of the Constitution that guarantees the right to life and personal liberty to every person. It is to be noted that the fundamental right to live with human dignity is one of the most vital characteristics of the right to life due to its acknowledgment of the independence of an individual. The Supreme Court has held this in a number of cases that the crime of committing rape infringes the rape victim’s right to live with human dignity.
Therefore, marital rape as such is unconstitutional as it takes away the victim’s right to a dignified life.
Moreover, it also stands in violation of Article 21 as the doctrine of marital exemption infringes the right to good health of a victim. This is due to the grave psychosomatic effect that it has on the mind and body of the victim. It impedes the cognitive ability of a woman and causes a deep emotional stress in her. Thus, the marital rape exception does not stand the mandate of the right to life as guaranteed in the Constitution.
It is pertinent to note that in foreign jurisdictions, marital rape has been criminalised with strict penal action. Countries like the UK, Canada, South Africa and Australia have criminalised marital rape. The European Commission of Human Rights in the landmark case of CR vs UK had concluded that a rapist remains a rapist regardless of his relationship with the victim. In fact, certain jurists are now of the opinion that marital rape should be punished on a different scale than alien rape. The reason behind this is that women who are raped by their husbands are less likely to reach out for aid and, therefore, require as much aid as the law can offer them such that they meet the ends of justice.
Today, India as a country is fast progressing in terms of realising the rights of its citizens. This cannot be achieved by turning a blind eye to social evils like marital rape that surprisingly continue to exist in our democracy. Therefore, there is an immediate need to get rid of the heinous marital rape exemption. This can be achieved if the Government enacts a law (like the one being proposed by Tharoor) to delete the exemption from the IPC or if the Supreme Court declares the exemption to be unconstitutional.
It can also be done away with if purposive interpretation of the exception of marital rape is adopted. A close reading will make it clear that the wordings do not include “forceful” sexual intercourse while explaining the exception. Like any other reading of a criminal provision, this exception should also be taken at face value.
Therefore, if read in this manner, any forceful act by a man on his wife can constitute the offence of rape as the exception only allows for ‘sexual intercourse’ between spouses and not ‘forceful/involuntary sexual intercourse’. Marital rape as a concept resides in the shelters of patriarchy and sexism.
If society itself normalises the act of men abusing or raping their wives, then misogynistic minds are bound to breed, as from a very young age the children will be exposed to such adverse realities.
The need of the hour is to create a social structure wherein the least that could be offered to the citizens is a life of respect and dignity. The removal of the exception of marital rape is perhaps the best means of paving the way forward.
(Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai)