Despite how consistent and common marital rape in India is, the idea of gender equality falls flat on its face when marital rape is given a subtle nudge from law, society and customs. The immunity to marital rape, too, like many other parts of the Indian code, is a British legacy, which can be traced back to the Jurist Mathew Hale, who laid the grounds for ‘marital immunity’. From the eighteenth to the twentieth century, we are still trying to claim a woman’s body and her implicit consent. Aeshita Singh understands the recent Kerala High Court Judgment, which treats marital rape as a ground for divorce and then traces back to laws and social morality. She also makes a strong case for criminalising marital rape from privacy and autonomy.
By Aeshita Singh, a third-year law student at Symbiosis Law School, Pune and member of Lawctopus Writers Club. Aeshita is currently interning at Academike.
Early in August this year, the Kerala High Court upheld marital rape as a ground for divorce and created quite a stir. Given the Indian jurisprudence on marital rape and continuous demands for its criminalisation, this judgment marks a break from the usual.
Despite repeated calls for the criminalisation of marital rape, it continues to persist without penalisation. The issue with marital rape is that there isn’t any law to proscribe it. Hence, apart from internal and external pressure, this is also why many women refrain from reporting it.
According to the National Crime Report Bureau (NCRB) report, 157 out of 1,00,000 women reported being sexually assaulted by men who were not their husbands. However, 6590 out of 1,00,000 women reported being raped by their husbands.Evidently, marital rape acquires a majority number, only one per cent of which is reported. This disparity in reporting cases can be attributed to the fact that marital rape is not criminalised. Hence it is reported under provisions of cruelty.
Marital Rape in India: (Not) A ground for Divorce
While cases of marital rapes commonly appear in courtrooms, they might not be spelt as they are. Since parties often demand either criminalising marital rape or plead the court to grant a divorce based on it.
In April 2019, a rape accused pleaded against punishment because he had married the victim. The accused claimed against a penalty by proving his marriage and going scot-free under the second exception of Section 375.
Another failed attempt occurred in July 2019. When the petitioner Anuja Kapoor filed a PIL in the Delhi High Court to make marital rape a ground for divorce. The HC, however, rejected her petition, reasoning that the court couldn’t give directions to the legislature to make laws or by-laws on a specific matter.
What is the Significance of the Recent Kerala High Court Judgment on Marital Rape?
The recent judgment by the Kerala High Court marks a break from marital rape jurisprudence in India. On August 7, 2021, Kerala HC pronounced a judgment for the wife who had alleged marital rape and mental cruelty by her husband of 12 years.
In this case, the husband had appealed against the divorce. The court decided that even though marital rape isn’t recognised under the penal laws, it can act as a justifiable ground for divorce. The judgment by Justice A Muhamed Mustaque and Dr Kauser Edappagath stated:
“In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant divorce.”
The court considered marital rape under the ambit of cruelty. Cruelty is a pre-established ground of divorce under Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act. Hence the husband’s appeal was dismissed, and the divorce was granted.
The judgment was conscious of the spouse’s choice, which is fundamental to autonomy ensured by the constitution. Therefore, no law can force a person to suffer by the denial of divorce.
The court relied upon Samar Ghosh v. Jaya Ghosh, which had laid certain parameters to evaluate mental cruelty. However, these parameters were only illustrative and not exhaustive. Two of these parameters include:
“(v)A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.”
In this case, the wife was subjected to sexual perversions against her will. Therefore, the bench considered all the sexual abuse as cruelty as the husband disregarded her body autonomy.
Marital Rape in India and Privacy
In 2014, the decision of Arnesh Kumar v. State of Bihar & Anr was a setback for voices demanding criminalisation of marital rapes. The court decided in this case that criminalising marital rape would rupture the social and family system. Subsequently, a petition filed in the court in 2015 also got dismissed, citing that the law cannot change for only one woman.
However, there is a need to look at marital rapes from the privacy point of view.
In Justice K.S. Puttaswamy (Retd.) v. Union of India, the right to privacy was discussed at length. In this landmark judgment, a nine-judge bench decided that ‘privacy’ may not be explicitly mentioned in the constitution but can be derived from Article 21 of the Constitution of India.
Article 21 stipulates that human existence does not mean mere animal existence but demands a life with dignity. Justice Nariman stated in this judgment that privacy could include non-interference with the individual body and autonomy over personal choices.
Furthermore, Justice DY Chandrachud said:
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”
In the same judgment, Justice Kaul said:
“Privacy is about respecting an individual, and it is undesirable to ignore a person’s wishes without a compelling reason to do so. In the end, it is an individual choice.”
Even in a 2009 case, Suchita Srivastava v. Chandigarh Administration, the SC decided that the right to make choices about sexual activity is within the scope of rights to personal liberty, privacy, dignity and bodily integrity under Article 21 of the Constitution.
This is not it. We did take a step ahead in criminalising marital rape in 2017. In Independent Thought v. Union of India, the court incriminated non-consensual sexual contact with girls below 18 years. However, adult women still have to resort to Section 498A of IPC, subjecting women or the wife to cruelty or provision under the Protection of Women from Domestic Violence Act, 2005.
The privacy argument affirms that, which is already known, that marital rape outrages the modesty of women. Furthermore, marriage does not mean surrendering one’s consent before their partner. Hence, marital rape must be criminalised as, under Article 21, a woman has autonomy over her body.
International laws and Marital Rape
The UK criminalised marital rape first time in 1991. In R v. R, Lord Lane decided:
“The idea that a wife consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable.”
This decision received a huge backlash. Many argued that this was a step too far and would always keep men fearing fabricated charges.
In 1993, the UN Declaration on Elimination of Violence Against Women (DEVAW) recognised any violence against women, including marital rape, violating her fundamental human rights. The Assembly also requested all the member countries to make their own legislation to ensure women’s safety.
In the United States, till 1970, couples needed to be living separately for the husband to be charged with marital rape. However, this got challenged in Oregon v. Rideout. Because of several such reforms, by 1993, all 50 states in the US had criminalised marital rape.
Arguments Against Criminalising Marital Rape in India
The 2014 report by the Delhi Commission Of Women report had mentioned that over 50 per cent of rape cases filed In Delhi were false.
This report is often used as an argument against criminalising marital rape in India. Many argue that if a law criminalises marital rape exclusively, men could be targeted as its charge could be complicated to defend.
However, this report is not a definitive source since it includes all the dropped cases,or the ones that did not reach the trial stage. Therefore, there is a need to understand that dropped charges cannot necessarily mean false charges.
In India, it is common for rape victims to drop charges because of threats from the accused and the fear of society. Even in the United Kingdom, 58 per cent of the rape accusations were withdrawn owing to the fear of disclosure and intense scrutiny by police and courts.
Even the low conviction rates under Section 498 A of the Domestic Violence Act doesn’t prove that women are targeting men. But it does suggest a general hesitance in reporting against the spouse, especially when women reside in the conjugal home with their husband.
It is already known that these charges are difficult to prove, and victims are often subjected to external pressure in the form of threats from the accused’s family and society in general.
On the other hand, the National Family Health Survey report claimed that one in three women is subject to sexual violence in a marriage. This proves that the situation is quite different from the popular belief that marital rape will victimise men. In reality, the criminalisation of marital rape will only help women to lead a life with dignity.
Another argument against this motion is that false cases will overburden the judiciary, making it difficult to separate false claims from genuine ones. This line of reasoning is faulty at its very core. The Indian judiciary is already overburdened with case laws, but it can’t be a justification to deter genuine complaints. Moreover, in Nimeshbhai Bharatbhai Desai v. State of Gujarat, Justice J.B. Padriwala had said:
“Let it be stressed that the safeguards in the criminal justice system are in place to spot and scrutinise fabricated or false marital complaints, and any person who institutes untrue and malicious charges, can be made answerable in accordance with the law.”
The judiciary’s task is clearly to make sure that the innocent aren’t found guilty, and the guilty go behind bars.
So then, why are women being refused to access the justice system on the premise of additional load or false charges?
A Long Wait
India remains one of the 36 countries where is it legal for the husband to rape his wife and call it sex.
Despite several petitions, reports by government agencies, uproar from feminist organisations and NGOs, courts still maintain they can’t infringe upon privacy within the bedrooms.
While the judiciary maintains this stance, we see husbands encroaching upon their wives bodies and justifying it as their right.
Suppose a husband physically abuses his wife in their bedroom, it will be considered a crime under Section 498A of IPC. Likewise, if a husband mentally tortures his wife in their bedroom, it will be considered a crime under the Domestic Violence Act for dowry. However, if a husband rapes his wife in the same bedroom, it will not be a crime under Section 375 of IPC.
While there has been an unprecedented delay in criminalising marital rape, things are looking up in the recent 2-3 years. And probably we could see criminalisation sometime in the future. For instance, in 2018, a Delhi High Court judgment questioned marital rape:
“Why is it ‘not rape’ when you’re married and ‘rape’ when you’re not? Force is not a pre-condition to rape.”
In rejecting a PIL by an NGO, Men Welfare Trust, the judiciary had questioned the notion of ‘rape’ after marriage even before the recent Kerala Judgment.
However, at the same time, former Chief Justice of India Deepak Mishra commented,
“In my personal view there is no necessity to criminalise marital rape. Our country is sustaining because of the family platform. We still have family values. This law will create absolute anarchy in our families”
His comment is also revealing of how there’s a conflict within the legal understanding of the concept. And also that most of the defence against criminalising marital rape flows from the notion of protecting the family institution. However, this reasoning is absolutely skewed as it aids familial, collective or social morality over individual rights and autonomy.
Like the Sabrimala and Navtej Singh Johar, many judgments have defied the social morality for constitutional morality and individual rights. Like them, the legal protection to marital rape also stems from the state’s hesitance to denounce patriarchal values.
In her piece, ‘Marital rape immunity in India: historical anomaly or cultural defence’, Kim Deborah debunks the argument often levelled against criminalising marital rape. She denounces the ‘real rape’ narrative, which believes that the ‘real rape’ is only one committed by strangers. Instead, Deborah proposes that there is innate ‘cultural tolerance’ for marital rape in India and other countries. While the countries she mentions, including the UK, have already criminalised marital rape, India is still struggling to find its defence to continue the practice.
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