Author: Kumari Bhargavi Symbiosis Law School, Pune
The term ‘rape’ refers to any non-consensual sexual activity between a female and a male. Though laws have been implemented in India to criminalize rape yet the country is experiencing increasing number of rape cases each year. However, in India it is has been considered by a large majority of people that rape against a woman occurs only when she is raped by a person who is a stranger to her and not by her husband itself. Due to the existence of patriarchy which is deeply rooted in our society since ages, men and women have never been treated alike. Woman has always been objectified and treated as property owned by the men. The society holds a preconceived notion that once a woman is married to a man, her consent to sexual intercourse becomes irrevocable and therefore it has been believed by the society that marriage for man becomes a license to rape his wife. However due to less awareness among many sections of the society, people especially females do not know that if they are forced to have sexual intercourse with their husbands, then it constitutes the offence of martial rape.
What is Marital Rape?
Marital rape refers to a non-consensual sexual intercourse or any other non-consensual sexual activity against a man or a woman by their spouse. Alike females, males are also a victim of marital rape however it happens on a smaller scale as compared to the marital rape against females. The Indian Judiciary has provided rights and protection to women along with criminalizing almost all sorts of crime against them, however the non-criminalization of marital rape in India has a negative impact on a large number of victims of marital rape, especially females. The offence of Martial rape is one among the most inhuman crimes against women because they have to live their lives with their perpetrators, while the perpetrators are not punished under the criminal law for their inhuman offense, which in turn effects the physical and psychological health of the victim.
India through the legal provision of Section 375 of the Indian Penal Code has criminalised the offence of rape[i], along with the these the punishments for rape[ii] has been defined under Section 376 of the Indian Penal Code. However, the legislation fails to recognise the offence of marital rape against a person specially females in general as a crime of higher magnitude. The Exception 2 under Section 375 of the Indian Penal Code states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”[iii].
Although the legislation pertaining to criminal laws does not recognise marital rape as a crime in India, under the legal provision of the Protection of Women from Domestic Violence Act, 2005, the survivors or the victims of marital rape can file a civil suit against their perpetrators for the offence of marital rape[iv]. However, this Act being civil in nature does not impose criminal liabilities against the husband or the rapist, neither it acts as a well devised legislation to protect the victims of marital rape, who in turn are just provided with civil remedies and the right to file for judicial separation from their spouses.
Act of marital rape further violates Article 14 of the Indian Constitution which states “equality before the law”[v] along with Article 21 of the Indian Constitution which declares the “right to privacy of a person”[vi].
JUDGEMENTS RELATED TO MARITAL RAPE IN INDIA
The Supreme Court in the case of Independent Though. V. Union of India[vii], stated that the criminalization of marital rape cannot ruin the sacred institution of marriage.
In the case of Bodhisattwa Gautam. V. Subhra Chakraborty[viii], the court ruled that the act of marital rape has a negative impact on the psychological state of the victim, and thus a crime against humanity.
In the case of State of Karnataka. V. Krishnappa[ix], the Supreme Court stated that non-consensual sexual activities against a woman violates her right to privacy, further humiliating the victim, thereby violating article 21 of the Indian constitution.
In the case of Arnesh Kumar. V. State of Bihar[x], it was declared by the Supreme Court that many of the wives use the legal provision of section 489A of the Indian Penal Code to file fake cases of cruelty against their husbands. This leads to the misuse of the laws which are gender biased as believed by the society at large.
A large majority of people believe that criminalising marital rape would disintegrate and destabilised institution of marriage however, in the case of Nimesh Bhai Bharatbhai Desai. V. State of Gujrat[xi], the court declared that offences like marital rape dismantles the institution of marriage.
The Supreme Court in the case of State of Maharashtra. V. Madhukar Narayan Mardikar[xii], declared that even a prostitute has a right over their own body and can refuse to sexual intercourse, however when it comes to married women, they are left with no choices as they are solely considered to fulfil the desires of their husbands and perform household chores.
WHY MARITAL RAPE SHOULD NOT BE CRIMINALIZED IN INDIA?
In India a matrimonial bond has been considered as sacred since ages where husbands have been considered as God like figures to their wives and therefore it has been believed that criminalising marital rapes will lead to the disintegration of the sacred concept of matrimony. Had marital rape been criminalised in India the country would have experienced a lot of divorce cases, because the society at large have the notion that empowering women would create disputes within the family. Another reason of going against the idea of criminalizing marital rape is that once married to a man, the consent of a female to have sexual intercourse becomes irrevocable. If a man will not have sexual intercourse with his wife, then with whom is he supposed to fulfil his sexual desire? A large number of people believe that if married individuals are not comfortable performing sexual activities without their consent with their spouses, then they should not have married.
Another biggest reason of not criminalising marital rape in India is that the females would use the legislation of marital rape to file fake cases against their husbands for ulterior purposes similar to the fake cases that are filed under the legal provisions of Section 498A of the Indian Penal Code and the Protection of Women from Domestic Violence Act, 2005. Gender stereotyping has been so deeply engraved in the society that men have always been considered as the perpetrators of rape against women and not the victims themselves and therefore such laws would turn out to be detrimental for the male society at large.
REASONS FOR CRIMINALIZATION OF MARITAL RAPES IN INDIA
With the change in the culture of India by the impact of westernization females have started fighting for their rights. Moreover, the Supreme Court of India has provided several rights to empower women which further boosted the confidence of the female section at large to stand against the injustice done to them. The most important argument in favour of the criminalization of marital rape in India is that consent of female to have sexual intercourse should not be taken for granted as it violates basic fundamental rights of bodily integrity[xiii] of the women provided under Article 21 of the Indian Constitution. Just in order to protect the holy sacrament of marriages in India, a grave crime of marital rape against the women in general cannot be justified. Further taking into consideration the idea of having a ‘burden of proof’ should not be a reason do not criminalize marital rape. Logically cases related to any crime or civil offence can be filed against a party by another irrespective of their gender, which again does not justify the reason for not recognising the inhuman crime of marital rape by the legislation against the woman. Lastly no matter who so ever the rapist is, it is the duty of the judiciary to treat and punish every citizen equally.
Marital rape being an inhuman crime against the society at large has not been criminalised by the Indian judiciary because a large majority of people does not regard marital rape as a crime. The institution of marriage has been considered as sacred since time in memorial in India where a man and woman live together as a family. However sometimes this sacred matrimonial bond turns out to be detrimental for the females since the patriarchal society fails to recognise the crimes committed against women. Why the victims of rape should be treated unequally merely because of their marital status?
A female upon marriage leaves her parental house to reside at her matrimonial house however when grave injustice is done to her by her own husband, by having forceful sexual intercourse with her then in such cases the institution of marriage cannot be considered as sacred. However, the offence of martial rape is gender neutral which violates the basic fundamental rights of the victim, holding such rights unconstitutional, that are provided by the Indian constitution. There is a need of well devised laws created by the legislature so that they can be enacted leaving no scope for flaws to occurs, which would subsequently lead to the betterment of the society at large.
[i] Section 375, Indian Penal Code, 1860.
[ii] Section 376, Indian Penal Code, 1860.
[iii] Section 375, Indian Penal Code, 1860.
[iv] The Protection of Women from Domestic Violence Act, 2005.
[v] The Constitution of India, Article 14.
[vi] The Constitution of India, Article 21.
[vii] Independent Though. V. Union of India, Writ Petition (Civil) No. 382 of 2013.
[viii] Bodhisattwa Gautam. V. Subhra Chakraborty, AIR 1996 SC 922.
[ix] State of Karnataka. V. Krishnappa, (2000) 4 SCC 75 (India).
[x] Arnesh Kumar. V. State of Bihar, (2014) 8 SCC 273 (India).
[xi] Nimesh Bhai Bharatbhai Desai. V. State of Gujrat, 2018 SCC Guj 732.
[xii] State of Maharashtra. V. Madhukar Narayan Mardikar, AIR 1991 SC 207.
[xiii] The Constitution of India, Article 21.