Criminalisation of Marital Rape in India: A Distinct Dream
The author, Akshita Sharma, is a first year law student at Symbiosis Law School, Pune.
In the 21st century where technological evolutions have peaked, globalization has resulted in the massive interconnectedness of all and the broad interrogation of the old age patriarchal structures have resulted in a change yet some deep stereotypical practices are still prevalent. There still exist certain grey notions of draconian or inequitable practices that contradict the basic fundamental rights of the oppressed group of the society which are women. Section 375 of the Indian Penal Code, identifies and dictates provisions and criteria of rape but nowhere does the act mention Marital Rape. In the recent judgment of the Delhi High Court, where there was a split verdict regarding the claim of decriminalization of marital rape where Justice Rajiv Shakhder was of the opinion that this is an instance of marital rape but on the other hand Justice Hari Shankar stated that the husband did not violate any laws or any constitutional provision thus it is not marital rape. Marital rape is an immanent socio-legal topic as there are multiple precedents that either support or contradict the claim of marital rape. This complexity is beyond the legality of the concept, it dives deep into the orthodox societal mindset where women are viewed as an object of sexual desire by men.
Judicial and Legislative analysis of Marital Rape
Looking at the history of the British colonies and the enactment of the Indian Penal Code in 1860, it can be seen that there were various conventions and patriarchal values embedded in the society such as the “Doctrine of Coverture”that stated that husband and the wife were one single unit. As a consequence of being termed a single entity, women had suspended individual rights and thus could not deny the wishes or in this context forced sexual coercion from the other side. In “Hale’s Doctrine” dictated by Mathew Hale, Chief Justice of Court of England in his famous book corroborated the above fact by stating that in no circumstance the husband could be held liable for rape cause of the matrimonial consent and contract that the wife cannot rescind. In terms of a legislative act in India, marital rape has been mentioned in the Protection of Women from Domestic Violence Act 2005, only for civil remedies and not criminal proceedings.
A statement of former Minister of State for Home Affairs, Haribhai Parathibhai Choudhary stated that “Marriage Sacred in India, so marital rape does not apply” received massive backlash as being insensitive towards the rights of women and owing to the fact that being part of the legislature endows one with certain duties towards its citizens. But it is not a surprise that the ministers of the largest democracy have passed such heinous comments as seen in the comment passed by Mulayam Singh Yadav, “Boys will be boys, they make mistakes”. To the absolute astonishment of the author, female politicians have also passed comments such as “Rapes happen because men and women interact freely” – Mamata Banerjee.The statement made by Maneka Gandhi “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.” received massive backlash from the public.
There are numerous judgements that dictate various fundamental rights and bodily autonomy rights to women but has never till date directed to protection from marital rape. In the case of State of Maharashtra v. Madhukar Narayanwhich held that every woman is entitled to her sexual privacy and in the landmark judgement of Vishakha v. State of Rajasthan, the court has protected the rights of women to a safe working environment. As seen in the case of NimeshBhai Bharatbhai Desai vs the State of Gujarat which stated that the husband does not have a license on the body of the wife and the wife’s consent and respect should be maintained but on the other hand, there are multiple judgments that discredit the claim of marital rape. Judgements such as FranisCorallie Muin v. Union Territory of Delhi and The Chairman, Railway Board v. Chandrima Das both focus on the right to live with dignity and the latter focusing primarily on the right to life of the victim of the crime of rape. Theemphasis of all the above-mentioned judgments is on the protection of fundamental rights of the individuals but each of them fails to recognise criminalisation of marital rape which is leading to the violation of right to equality and right to dignity guaranteed under the Constitution of India.
Analysis and Interpretation of the problem relating to Marital Rape
From the lens of my analysis there is a dire need to incorporate the provision of marital rape in the Indian Penal Code, 1860 and criminalise the offence. There are layers of dichotomy and complexity in criminalising the offence especially noted from the side of government legislatures. The defence stating that marriage being an absolute sacrament and a sacred union in the Hindu Law would be subject to destabilization due to inclusion of marital rape. Also encompassing the rise of false rape allegations against husband if the provision is criminalised, it would lead to infringement of rights of men. A prominent argument dictated by conservatives on the issue of marital rape is the obstacle of proving consent, when two individuals are living together and consummating regularly, how would one decipher grant of consent one day and deny of consent the other day? Adding to it the mechanism of proving evidence beyond reasonable doubt in such situations becomes an arduous if not impossible and the futile efforts of judiciary since the legislature only has sufficient mandate to make laws on such issue. The above opposition or arguments appear acutely patriarchal and misogynistic and do not contemplate the predicament at hand which is the prejudiced stance on the offence of marital rape. To be utterly straightforward, one that supports the claim of marital rape just rebuts the idea of rape being an offence as a whole. The claim that the husband has the eternal right on the wife thus objectification and treating women like property substantiates the societal misogyny. A question that one needs to ask themselves ‘Is maintaining the stability of marriage as a social institution more important than protecting one’s fundamental right’?
As Justice Verma Committee had recommended the inclusion of marital rape under the ambit of criminal law in India, the government and the law-making body has an obligation to incorporate such provisions to protect the guaranteed rights of women. There is no denying that there has not been instance of false allegations in the past before but this does not denote that because of small section of false reporting the women at large suffer and do not avail their fundamental rights. If this weak excuse is resorted the question lies, why at the first place we have acts such as the Domestic Violence Act, 2005 which defines the offence but does not initiate criminal proceedings. It is strenuous for me to comprehend the reasoning of how polygamy and triple talaq are any more barbaric than the act of marital rape. It is nothing but the institutionalised belief that the dominant class which is the male ultimately decides the sexual intercourse and can commit the act without the consent or against the will of the wife. It is so presumed that the focal purpose of the marriage is consummation and the act of marriage alone grants the permission of sexual intercourse and not the consent of the other party. This echoes the old age patterns of oppression and suppression of women where women are perceived as second citizens and baby making machines where right to bodily autonomy and reproductive health are absolutely disregarded.
In a short Primary Research Closed-Ended Survey circulated to 20 married women aged between 35-45 aged they were asked three questions regarding marital rape and through analysis it was derived that there have been times when woman have had sexual intercourse without wilful consent. The mere fact that all women agreed to marriage being primary vehicle of consummation depicted the societal mind set of purpose of marriage and sexual role of women in it. (Survey questions attached in the annexure below).
Law Commission 2000 in its 172nd report highlighted the significance of criminalisation of marital rape, but it was later rejected by the central government. In one of the alarming sets of statistics highlighted by a study in the RICE Institute based on National Crime Records Bureau (NCRB ) data and National Family Health Surveys, it was noted that “the number of women who experienced sexual violence by husbands was forty times the number of women who experienced sexual violence by non-intimate perpetrators”. To have an international perspective on marital rape, the best example to fathom would be of Poland which became the first country to criminalise marital rape in 1932. Australia became the first common law country to pass legislations and made multiple changes to its marital law due to the mass criticism and revolutions by the feminists resulting in criminalisation of marital rape in 1976. Other countries such as USA, Canada, Ireland, France and many others have been dynamic and solicitous to incorporate laws based on justice and inclusion, making me deeply wonder the ineffectiveness and indolent acts of the Indian Legislature. The gripping fact in this comparative analysis is the position of Nepal in abolishing the spousal rape in the year 2002 to protect the privacy and protection of women, making the author wonder the primitive and regressive approach of the Indian law-making body. The common notion of revolting against your husband is a sin and would further tarnish one’s image in the society leading to women enduring the spine-chilling horrors of rape and there being no law on surface for the crime, thus no recourse of legal succour.
It is easy to converse and analyse the provisions of law related to marital rape but is extremely taxing and perplexing for women to live everyday through these petrifying incidents that seriously harm their physical and mental health. India has come a long way from decriminalising homosexuality to identifying third gender to ensuring guaranteed diverse fundamental rights under the ambit of Article 21 to launching various schemes and amendments for the protection of women. It would be unfair to not applaud the reforms and policy initiatives in India in context of women empowerment and protection but there is still massive scope of improvement and rectifications. There is not just a dire need for amelioration of certain laws and act but an out-and-out revolution of the orthodox patriarchal structures that are still strongly embedded in the minds of people. Passing of the Domestic Violence Act, 2005 was the pragmatic approach of the legislation in ensuring the rights of the married women against their husband and a stepping stone for undertaking the mere fact that a in the sacred union, there can be despicable crimes and one needs to be strictly punished for that. Thus, as the title suggests criminalisation of marital rape is a distinct dream and would require equal and exhaustive contribution of the shackles of the society and the law governing body. It isprogressive that at present there are multiple non-profitsorganisations and activists that contest the regressive and paradoxical patriarchal structures and struggle for protection of the rights of the women. On the positive note recently, court held that the meaning of rape must held to include ‘marital rape’ for the purpose of Medical Termination of Pregnancy Act and Rules. As CJI DY Chandrachud commented, “Does a woman or man lose their degree of sexual autonomy after marriage. According to me ‘NO’, “The right to say ‘NO’ (to sex) should be there after marriage also”.
In a short Primary Research Closed Ended Survey circulated to 20 married women via a google form over Whatsapp being the source of communication. Women aged between 35-45 aged were informed that their identity would be kept anonymous, while answering three questions regarding marital rape. Through further analysis it was derived that there have been times when woman have had sexual intercourse without wilful consent, no knowledge about certain acts for protection and victims of patriarchal domination. The mere fact that all women agreed to marriage being primary vehicle of consummation depicted the societal mind set of purpose of marriage and sexual role of women in it.
(Survey questions asked in the google form were)-
Please tick yes or no for the questions stated below-
1] Have you ever had sexual intercourse with your husband even without wilful consent or against your will?
2] Do you know there is an act called Protection of Women from Domestic Violence Act 2005, that protects women from marital rape in civil proceedings?
3] Do you think there still exists a patriarchal mind set which states that it’s the role of the woman to fulfil the sexual satisfaction of the husband or the role of marriage is mere consummation?
1] Murali Krishnan, Marital Rape Debate: Justice DY Chandrachud on Right to say “no” after marriage, BAR & BENCH, Aug 2 2018.
2] Nandini Singh, 5 times politicians have disgusted us with rape comments, INDIA TODAY, Dec 17, 2021.
3] Sumedha Choudhury, Why Criminalisation of marital rape is still a distant dream in India, BUSINESS STANDARD, Oct 29, 2018.
4] PRIME LEGAL https://primelegal.in/2022/05/31/marital-rape-in-india-can-it-be-criminalized/ (Last visited 26thSeptember 2022)
Criminalisation of Marital Rape in India: A Distinct Dream