MARITAL RAPE AND ITS LEGALITY IN INDIA
THIS ARTICLE WAS WRITTEN BY AGAM BANSAL, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PATIALA, PUNJAB
INTRODUCTION
Rape
Rape refers to an act of sexual intercourse which does not involve the consent of any one of the partners involved. It is sexual intercourse which usually takes place in a forceful manner in which one of the individuals is forced to indulge in the act.
Rape may be caused either by the use of force or by the threat of force. It comes under the much broader term of sexual assault. It is a crime in most of the jurisdictions across the globe. More often than not, it is used as a means to assert power by the culprit over the victim. The legal definition of rape has gone a whirlwind change since the advent of the 20th century. In earlier times, it was regarded as forceful sexual intercourse by a man with a woman, against her will. This is a pretty narrow definition of the term. Over the years, it has grown much broader. Now, both the rapist and the victim can be of any gender. Rape can be committed on a person who belongs to the same sex as well.[1]
In India, on an average, a woman reports a case of rape every 15 minutes. According to the National Crime Record Bureau (NCRB), in the year 2018, almost 34,000 cases of rape were reported by women. 27% of these cases led to conviction of the accused while in 85% cases, the accused were framed with charges.[2] The main problem, however, lies in the fact that a huge amount of rape incidents are not reported due to societal and family pressure. The stats on rape are highly undervalued in our nation.
Marital Rape
Marital rape refers to rape committed after marriage. It is sexual intercourse, indulged in by two married individuals, where consent of one is not involved or is obtained forcefully and against his/her will. It involves use of force, usually by the husband over the woman. Force can be exercised by threatening to harm her or her family members.
India is a patriarchal society. Marital rape in India, therefore, is used as a means to assert power and dominance by the husband over his wife. Reports have shown that husbands rape their wives to express anger and exercise control over them. Sex, in India, is considered as the wife’s duty in order to please her husband and keep marital relations intact.[3] Marital rape, in India, is used as a ground for filing divorce. However, it is not punishable, unless the wife is under 15 years of age.
LEGAL PROVISIONS RELATED TO MARITAL RAPE
Section 375 of the Indian Penal Code, 1860 explains the concepts of rape. Martial rape also forms a small part of Section 375.
“375. Rape.— A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[4]
Exception 2 of Section 375 talks about marital rape. It says that any sexual act by a man with his own wife is not rape, unless the wife is under fifteen years of age. The Law Commission in its 172nd report revised this age from 15 to 16 years.
Majority of the nations across the globe have criminalised marital rape. However, there are 36 countries where unwilling or forceful sexual contact between husband and wife has still not been criminalised. India is one of them. Section 375 assumes the wife to have given consent to sexual intercourse as soon as she gets married to her husband. There has been huge public outcry against this exception and has led to a number of writ petitions being filed in the Supreme Court and various High Courts.
Reference must be made in this regard to the landmark judgement of Independent Thought v. Union of India[5] in which the apex court revised exception 2 and criminalised sexual intercourse with a wife between the age of fifteen and eighteen years. The court held that this exception was violative of articles 14, 15 and 21 of the Constitution of India.
Exception 2 to Section 375 is a clear violation of Article 14 of the Constitution which guarantees to the citizens equality before the law and equal protection of laws. Exception 2 discriminates between female victims of rape based on their marital status. Rape by a stranger has been criminalised and is punishable however, rape by one’s own husband is not punishable in the Indian criminal law structure. The Indian Penal Code was drafted in the year 1860. During that period, a married woman was not considered as an independent and separate legal entity. She was considered as her husband’s property and hence, did not enjoy as much rights as she enjoys in the present-day world. Hence, exception 2 is largely a product of the doctrine of merging the identity of a married woman with her husband.[6]
According to the court, exception 2 is also violative of article 21 of the Constitution. Article 21 says that “no person shall be denied of his life and personal liberty except according to the procedure established by law.”[7] Over the past decade, courts have had the view that Article 21 also includes the right to abstain from sexual intercourse or any sort of sexual activity for that matter. It is a violation of a person’s right to personal liberty if he/she is forced to have unwanted or unwilling sexual contact with someone.
The Supreme Court in another case of State of Karnataka v. Krishnappa,[8] held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” Not only that, the court also held that sexual intercourse without consent is a form of sexual and physical violence.
CONCLUSION
Marital rape is one of the many sexual offences that women in this country have to face. The Indian Criminal Law system presupposes that marriage acts as consent for both the partners to engage in sexual intercourse. This leads to rapes being committed against the women in their own households. The illiterate ones even blame themselves for this heinous crime committed by their husbands as they feel that it’s their fault that they aren’t able to enjoy sexual intercourse.
Marital rape acts as a ground for divorce. However, it is not punishable. It must be made punishable as consent is the most important pre-requisite for an individual to engage in any kind of sexual activity. Marriage should not be the criteria to define whether a forceful sexual act comes under the garb of rape or not.
BIBLIOGRAPHY
Journal Article
Tan Cheng Han, Marital Rape – Removing the Husband’s Legal Immunity, 31 MALAYA L.R. 112, (1989).
[1] Anne L. Barstow, Rape, BRITANNICA (Apr. 11, 2019), https://www.britannica.com/topic/rape-crime.
[2] Akriti Anand, NCRB Data 2018: 1 Rape Reported Every 15 Minutes in India, INDIA TODAY (Jan. 16, 2020, 06:55 PM), https://www.indiatoday.in/india/story/ncrb-2018-woman-reports-rape-every-15-minutes-in-india-1635924-2020-01-11.
[3] RAINN, https://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Issues/Marital_Rape.pdf.
[4] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 2019.
[5] Independent Thought v. Union of India & Anr., (2017) 10 S.C.C. 800.
[6] Sarthak Makkar, Marital Rape: A Non-criminalized Crime in India, HARVARD HUMAN RIGHTS JOURNAL (Jan. 1, 2019), https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/#_ftn4.
[7] INDIA CONST. art. 21.
[8] State of Karnataka v. Krishnappa, (2000) 4 S.C.C. 75.
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