Baba's Explainer - Marital Rape

Governance, Social Issues

Baba’s Explainer – Marital Rape

Syllabus

GS-1: Issues relating to Women
GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation

Why In News: The Delhi High Court has recently delivered a split verdict on decriminalizing marital rape in the country.

Justice Rajiv Shakdher struck down Exception 2 of the Indian Penal Code’s Section 375 that decriminalized rape within marriage
Justice C. Hari Shankar upheld its validity.

What is marital rape?

Marital rape, the act of forcing your spouse into having sex without proper consent.
It is an unjust yet not uncommon way to degrade and disempower women.
The average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
Unfortunately, India does not recognize marital rape as an offence.

How does Indian Law regime deal with Marital Rape?

One of the most horrifying and repressive issues with the Indian legal regime is that marital rape is perfectly legal.
Section 375 of Indian Penal Code (IPC) defines the offence of rape with the help of six descriptions. One of the exceptions to this offence is “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age is not rape”.
- The IPC was implemented in India during British colonial rule in 1860, based on the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India.
- Under the first version of the rules, the marital rape exception was applicable to women over ten years of age. In 1940, this age was raised to 15.
- In 2017, the Supreme Court in Independent Thought v. Union of India, 2017 struck down the exception to marital rape for a minor wife below 18 years of age. However, it did not go full way in criminalising marital rape
The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736. It states that a husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.
The only punishable instances of rape committed within a marriage are: firstly, where the wife is a minor and secondly, when spouses are living separately under a decree of judicial separation.
Non recognition of marital rape means that women’s husband is her sexual master and his right to rape her is legally protected.

What is the history of the marital rape law in India?

The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship. However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
The Delhi High Court has been hearing arguments in the case since 2017. However, this is not the first time that the issue of marital rape has been raised in the country.
The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India’s laws on sexual violence.
Following the Nirbhaya gang rape and murder case in 2012, the Justice JS Verma Committee was tasked with proposing amendments to India’s rape laws. While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.
The issue has been brought up in Parliament as well. Dr Shashi Tharoor — a senior Congress leader and the Member of Parliament from Thiruvananthapuram — introduced a private member’s Bill to amend Section 375 of the Indian Penal Code and allow for criminalising Marital rape. However, the bill could not see the light of the day.

What are the criticisms of India’s Legal regime on Marital Rape?

Against Right to Life and Right to Equality: The Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article 14 and Article 21 of the Indian Constitution.
- The sexuality of a woman was part of her inviolable core and neither the state nor the institution of marriage could disparage it.
Patriarchal outlook of Laws: Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution.
Differentiates Married & Unmarried women: A married woman has the same right to control her own body as does an unmarried woman. Unfortunately, this principle is not upheld in Indian rape laws.
Marital Rape is more dangerous to Women’s life: Rape is rape, irrespective of the identity of the perpetrator, and age of the survivor. A woman who is raped by a stranger, lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist.
Not a threat to institution of Family: The country has adopted a domestic violence law that enables complaints against physical and sexual abuse. Therefore, making marital rape a criminal offence is unlikely to ruin the institution of marriage any more than a complaint of domestic violence or cruelty would.
Against International Norm: Today, it has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized
Concerns of Implied Consent: The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise. The Indian Penal Code, 1860, also communicates the same.
Outdated notion of Marriage: The exception given to marital rape harks back, as the report by the Justice J.S. Verma committee noted while recommending its removal, to an outdated notion of marriage that treated the wife as the husband’s property.
Against Autonomy of Married Women: Looking at marriage through the lens of ‘coverture’ — the view that the wife is under the husband’s authority always — should not be allowed to override the autonomy of married women over their person.
Inconsistent provisions: Other sexual offences make no such exemption for marriage. Thus, a husband may be tried for offences such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man.
- A husband may be charged and tried for non-consensual penetrative sexual interactions other than penile-vaginal penetration with his wife under Section 377 (before Navtej Singh Johar v. Union of India, 2018, consent was not relevant to Section 377, but it is now).
- In Joseph Shine v. Union of India (2018), SC held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage. Similar principle is not applied while recognising marital rape.
Colonial Hangover: Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence. But English laws have been amended and marital rape was criminalised way back in 1991. No Indian government has, however, so far shown an active interest in remedying this problem.
Violative of UN Convention: Section 375 (Exception) of IPC is inconsistent with and violative of these principles of United Nations Declaration on the Elimination of Violence against Women
Does not pass the test of “intelligible differentia”: Essentially, Section 375 (Exception) creates a classification not only between consent given by a married and unmarried woman, but also between married females below 15 years of age and over 15 years old. Such a classification does not pass the test of “intelligible differentia.
Legislature tone deaf to women’s voices: Even after the recent recommendations by the Justice J S Verma Committee in 2013 and Pam Rajput Committee in 2015, the lawmakers have taken no action against marital rape.
Economic costs: Women may suffer isolation, inability to work, loss of wages, lack of participation in regular activities and limited ability to care for themselves and their children. Women absent themselves from employment as a result of the injuries and stress.

What is government’s stand on marital rape?

Government is of the opinion that criminalising marital rape will destabilises the institution of marriage, given the immense significance the institution has in Indian Society.
Government also remarked in the Parliament that it would not be advisable to condemn every marriage as a violent one, and every man a rapist.
In 2016, the Government had rejected the concept of marital rape, saying it “cannot be applied to the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs and the mindset of the society to treat marriage as a sacrament”.
In 2017, the Government had opposed the removal of the exception in Section 375 of the IPC that deals with rape.

How is marital rape treated around the world?

According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation. In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
Ten countries namely Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.
While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions. About a dozen countries allow rapists to avoid prosecution by marrying their victims.
The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.

What is the broad takeaway from recent Delhi High Court’s split verdict?

Even though the court has delivered a split verdict, its intervention moves the needle in favour of doing away with the marital rape exemption in law.
Justice Shakdher’s opinion takes the conversation forward on the subject, and sets the stage for a larger constitutional intervention before the Supreme Court.
On May 10, 2022 the Supreme Court refused to stay the Karnataka High Court order that for the first time put a man on trial for marital rape. The SC’s refusal to stay the order indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.
- The accused man sought the quashing of the FIR, especially the charge of rape, since Section 375 specifically carves out an exception for marital rape.
- While the High Court did not explicitly strike down the marital rape exception, it allowed the married man to be put on trial on rape charges brought by his wife.

What happens when a split verdict is delivered?

In case of a split verdict, the case is heard by a larger Bench. This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches or Division Benches are not uncommon.
The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
The Delhi High Court has already granted a certificate of appeal to move the Supreme Court since the case involves substantial questions of law.

Mains Practice Question – Criminalising Marital Rape may destabilise the institution of marriage apart from being an easy tool for harassing the husbands. Critically comment.

Note: Write answers to this question in the comment section.

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decriminalized rape within marriage, history of the marital rape law in India, Indian Penal Code’s Section 375, Marital Rape, Marital Rape UPSC, Section 375

Governance, Social Issues