Marital Rape Law in India : The Exigent Need For Transformation
MARITAL RAPE LAW IN INDIA: THE EXIGENT NEED FOR TRANSFORMATION
- Tanmay Gupta, NALSAR, Hyderabad
Rape is considered to be the most reprehensible of all offences as it leads to the defilement of the dignity and self-esteem of the victim. It has been appositely characterized by the Supreme Court of India as a ‘deathless shame and the gravest crime against human dignity’. Moreover, when this heinous offence is committed within the confines of the four walls of a matrimonial home, it relegates the status of a woman from a human to a mere object for sexual gratification.
The National Family Health Survey of India (2005-2006) in its study of over 1.25 lakhs women in 29 states observed that 40 percent of married women in the age group of 15-49, at least once, had experienced physical, sexual or emotional violence perpetrated by spouses. In 2011, a study conducted by the International Center for Research on Women revealed that one in every five Indian mensurveyed admitted to forcing their wives into sex. In light of these abysmal statistics, there appears to be an exigent need for the legislature to recognize marital rape as a punishable offence.
In 2015, the then Union Minister of State for Home Affairs Haribhai Chaudhary remarked, on the floor of the Parliament, that marital rape cannot be brought within the ambit of the law on rape as marriage is deemed to be a sacred institution in India, thus making an inane attempt at concealing the most common and repugnant form of masochism in the Indian society behind the iron curtain of marriage. However, the comment seems to utterly disregard the fact that while Muslim marriages have always been contractual, Hindu marriages also ceased to be sacramental following the passage of the Hindu Marriage Act in 1955.
Although the hegemonic principles of not touching marital institutions have their roots in the Manusmriti, they are amplified by the beliefs and doctrines that came into being during the Victorian era. Numerous orthodox religious beliefs and personal law codes hold that denial of sex to husband goes against the paradigm of obligations of an ‘ideal wife’. This rationale is tremendously fallacious as it not only fails to recognize how an extreme form of sexual violence like marital rape violates the trust and sanctity in a relationship but it also infringes upon the fundamental principle of respecting a women’s bodily integrity.
Sec. 375 of the Indian Penal Code (hereinafter, referred to as IPC), which defines and delineates the ambit of the offence of rape has an exception clause resounding of archaic sentiments that states- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape”.
As per Sec. 376 of the IPC, which provides for the punishment of the offence of rape, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:
1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment upto 2 years or fine, or both.
2. When the wife is below 12 years of age, offence punishable 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.
3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and fine.
4. Rape of wife of above 15 years in age is not punishable.
Certain proclamations made by Matthew Hale, the Chief Justice in 17th century England, appear to be the underpinning of the exemption from punishment on account of committing marital rape. According to Lord Hale:
“The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract.”
What is even more appalling is that no case law or legal rationale was proffered by Lord Hale for his avowals. In fact, he is also responsible for the introduction of the conception of implied consent within the institution of marriage. As per this common law of coverture, once married, the husband has the tacit consent of his wife to engage in sexual intercourse, and this consent is deemed to be irrevocable and subsistent for the entire course of the marriage.
In spite of the egregious judicial pronouncement in Harvinder Kaur v. Harmender Singh wherein the Court ruled that there is no room for the application of constitutional law within the confines of a home, it is paramount to scrutinize §375 and §376 of the IPC from the perspective of the fundamental rights mentioned in the Indian Constitution.
Article 14 of the Indian Constitution guarantees a fundamental right of equality before the law and equal protection of laws to every citizen of India. It is important to note that it provides that equals should be treated equally and unequals unequally. According to a 1952 judgement of the Supreme Court, the classification that distinguishes those that are grouped together from others must be based on an intelligible differentia.
Sec. 375 of the IPC depicts the State’s interest in prosecuting those who violate the bodily autonomy of women by sexual assaulting them. Therefore, it is safe to assume that the primary endeavor of the provision is to protect the right of choice of women as autonomous individuals who are capable of self-expression. However, the IPC makes a classification between married and unmarried women who are victims of rape and this differential treatment of married women seems to imply married women, unlike their unmarried counterparts, do not need security from sexual assault, and the State does not have a duty of ensuring the same. Therefore, it is believed that this classification is not founded upon an intelligible differentia, thus violating Article 14 of the Constitution.
The right to life and personal liberty is enshrined under Article 21 of the Indian Constitution. The term ‘life’ has been interpreted in an expansive manner but can be condensed suitably in the words of Field J. in the celebrated judgement of Munn v. Illinois wherein he held ‘life’ to mean “something more than mere animal existence”. The same interpretation has been reaffirmed in the Indian jurisprudence as well in Bandhua Mukti Morcha v. Union of India.
The right to live with dignity and all that goes along with it are considered to be well within the scope of the right to life under Article 21 of the Constitution. As the Supreme Court has declared that the offence of rape violates the right to live with human dignity and consequently, the right to life of the victim, any provision that legitimizes the non-consensual intercourse of a husband with his wife shall be held unconstitutional.
Although not mentioned explicitly in the Constitution, the right to privacy has been recognized as a constitutionally protected right by the Supreme Court in a catena of cases. The existence of a right to sexual privacy of a woman has also been acknowledged by the apex court. Therefore, it is believed that the doctrine of exemption of marital rape also violates the right to sexual privacy of a married woman. In addition to this, the right to good health, which has been identified as a part of the right to life under Article 21, is also violated by the doctrine of exemption to marital rape as the gruesome act of rape adversely affects the psychological and physical health of the victim.
Unfortunately, the hope for any progress in this scenario seems bleak as the recommendations of penalizing marital rape made by the Justice Verma Committee Report were rejected by the government and hence not included in the Criminal Law Amendment Act 2013 as well.
References :-
1. Bodhisattwa Gautam v. Subhra Chakraborty AIR [1996] SC 922.
2. Sunita Kishor and Kamla Gupta, ‘National Family Health Survey (NFHS-3) India, 2005-06: Gender Equality and Women’s Empowerment in India’, www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf accessed April 2020
3. Flavia Agnes, ‘Section 498A, Marital Rape and Adverse Propaganda’ [2015] EPW 12
4. Dr Mukesh Garg, ‘Marital Rape under Indian Law: A Study’ [2013] IJMSS 59
5. The Indian Penal Code 1860, s 375
6.The Indian Penal Code 1860, s 376
7. Matthew Hale, History of the Pleas of the Crown (first published 1736, London Professional Books 1972) 629
8. William Blackstone, Commentaries on the Laws of England (Collins & Hanay 1830) 31
9. AIR [1986] Delhi 66.
10. State of West Bengal v. Anwar Ali Sarkar AIR [1952] SC 75.
11. 94 US 113 [1877].
12.AIR [1984] SC 802.
13. Francis Corallie Muin v. Union Territory of Delhi AIR [1981] SC 802.
14.The Chairman, Railway Board v. Chandrima Das AIR [2000] SC 988.
15. Kharak Singh v. State of U.P. AIR [1963] SC 1295; Govind v. State of Madhya Pradesh AIR [1975] SC 1378; Neera Mathur v. LIC [1992] 1 SCC 286.
16. State of Maharashtra v. Madhkar Narayan AIR [1991] SC 207.
17. CESC Ltd. v. Subhash Chandra [1992] 1 SCC 441; Regional Director, ESI Corpn. v. Francis de Costa[1993] Supp (4) SCC 100.
