By Sumit Kumar Suman, CNLU
A judge in India has officially confirmed that rape laws do not apply to married couples — once you’re legally wed, forced sex is no longer a crime.[i] Historically, “Raptus”, the generic term of rape was to imply violent theft, applied to both property and person. It was synonymous with abduction and a woman’s abduction or sexual molestation was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries.
The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for the elimination of the marital rape exemption clause and extension of guarantee of equal protection to women.
In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee.
Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women. Advancing well into the timeline, marital rape is not an offense in India. Despite amendments, law commissions and new legislation, one of the most humiliating and debilitating acts is not an offense in India.
A look at the options a woman has to protect herself in marriage tells us that the legislation has been either non-existent or obscure and everything has just depended on the interpretation by Courts.
Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape.
According to the section, the rapist should be punished 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 unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.
This section in dealing with sexual assault, in a very narrow purview, lays down that, an offense of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offense is committed, however, less serious, attracting milder punishment.
Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, the Soviet Union, Poland, and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation, and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behavior.
The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.
1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], sexual assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
5. A new offense, namely Section 376E with the title ‘unlawful sexual conduct’ should be created.
6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offense set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of Section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offense just as any physical violence by a husband against the wife is treated as an offense. On the same reasoning, Section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.[ii]
Position in India
In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played an active role in recognizing it as an offense, in India however, the judiciary seems to be operating at cross-purposes.
In Bodhisattwa Gautam v. Subhra Chakraborty,[iii]the Supreme Court said that “rape is a crime against basic human rights and a violation of the victim’s” most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing marital rape.[iv] Though there have been some advances in Indian legislation in relation to domestic violence, this has mainly been confined to physical rather than sexual abuse.
Women who experience and wish to challenge sexual violence from their husbands are currently denied State protection as the Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”[v]
This established the notion that once married, a woman does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “license to rape” their wives.
Only two groups of married women are covered by the rape legislation — those being under 15 years of age[vi] and those who are separated from their husbands.[vii] While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim.
Some progress towards criminalizing domestic violence against the wife took place in 1983 when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India.[viii] The Committee rejected the contention that marriage is a license to rape. Thus, a husband can now be indicted and imprisoned up to 2 years, if firstly, there is sexual intercourse with his wife, secondly, without her consent and thirdly, she is living separately from him, whether under decree or custom or any usage.
However, this is only piecemeal legislation and much more needs to be done by Parliament as regards the issue of marital rape. When the Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offense it was seen as a ray of hope.[ix] The Joint Committee that reviewed the proposal dismissed the recommendation. The Committee argued that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package.
Many women’s organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be a wider debate on this issue.
The mandate of the Task Force was to review all existing legislation and schemes pertaining to women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission’s proposed definition of “sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as “it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition. As of now, the law in India is wholly inadequate in providing supporting mechanisms for women to exercise bodily integrity and sexual autonomy.
Rebuttal of arguments against the criminalization of marital rape
The following are some of the common arguments given against the idea and proposal of criminalizing marital rape as an offense:
1. There is no need to give legislative attention to marital rape, as it is quite uncommon.
2. Due to the near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.
3. Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offense of marital rape.
4. There is an implied consent to have sexual intercourse when a woman marries a man.
5. Marital rape laws would destroy many marriages by preventing any possible reconciliation.
A perusal of these arguments would make it quite evident that these are mere fanciful, lame excuses of a male-dominated society that lack any sort of legal substance or moral force. A rebuttal of the abovementioned arguments is not very difficult.
Marital rape is a common but under-reported crime. A study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once.[x] They frequently do not report these rapes because the law does not support them.
As to the second argument, that marital rapes are difficult to prove, it may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offense and would have a deterrent effect on prospective rapist husbands. The mere fact that marital rape would be very difficult to prove is no reason for not recognizing it as a crime.
As regards the third argument of women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult. Because of the associated stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of sheer spite. Besides, the criminal justice system provides inherent safeguards such as the requirement of proof beyond any reasonable doubt. This is no justification to say that the victims should be denied protection simply because someone might be at risk of a fabricated case.
As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual intercourse with her husband after marriage, but the expression of love through sexual intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination can it be said that a person consents to harm or violence by marriage, and neither does the law permit any person to give such consent.
Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold together marriages may be one of the objectives of matrimonial laws. But it cannot override the fundamental objective of law in general and that of criminal law in particular, which is to protect and preserve the bodily integrity of a human being. Thus, withholding justice and denying equal protection for preserving marriages, at best, can be an improper goal of the law. The law should not encourage forced cohabitation and should not protect a raping husband.
Lacunae in Indian law
The whole legal system relating to rape is in a mess, replete with paradoxes. The major legal lacunae that come in the way of empowering women against marital rape are:
— The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and “right to live with human dignity”[xi] is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
— Article 14 of the Constitution guarantees the fundamental rights that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14, therefore, protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.
— Though protection of the dignity of women is a fundamental duty under the Constitution,[xii] casting a duty upon every citizen “to renounce practices derogatory to the dignity of a woman”; it seems that domestic violence and marital rape do not come under the definition of dignity.
— The “United Nations Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 entitled “The elimination of violence against women” recommended that marital rape should be criminalized.
— A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse. This implies that having sex anytime, anywhere and of any sort is an implied term of the contract of marriage, and the wife could not breach that term of the contract.
— The law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non-consensual sexual intercourse with a wife who is just 15 years of age.
— The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the man involved and is below 16, even if she consents.[xiii] But if she is a wife, not below 15 and does not consent, it is not rape.
— Another paradox is that according to the Indian Penal Code, 1860, it is rape if there is non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or imprisonment for a maximum term of 2 years or both,[xiv] which is quite less in comparison to the punishment provided for rape outside the marriage.
— Though the advocates of women’s rights secured a clause in 1983 under which it is unlawful for a man to have sexual intercourse with his separated wife pending divorce, the courts are reluctant to sentence husbands in spite of the law.
Suggestions for reform
In light of the above discussion following suggestions are made:
— Marital rape should be recognized by Parliament as an offense under the Indian Penal Code.
— The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
— The fact that the parties are married should not make the sentence lighter.
— It should not be a defense to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
— The wife should have an option of getting a decree of divorce if the charge of marital rape is proved against her husband. Though a case of marital rape may fall under “cruelty” or “rape” as a ground of divorce, it is advisable to have the legal position clarified.
— Demand for divorce may be an option for the wife, but if the wife does not want to resort to divorce and wants to continue with the marriage then the marriage should be allowed to continue.
— Corresponding changes in the matrimonial laws should be made.
It is conceded that changing the law on sexual offenses is a formidable and sensitive task, and more so, in a country like India, where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law.
Further, though, there is a need for substantial changes in the law on sexual offenses such as making them gender-neutral and eliminating the inequalities, a radical overhauling of the structure of sexual offenses is not advisable.[xv] The immediate need is the criminalization of marital rape under the Indian Penal Code. But, a mere declaration of conduct as an offense is not enough.
Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
Formatted on February 17th, 2019.
[i] Marital rape is officially legal in India; available at: http://www.globalpost.com/dispatch/news/regions/asia-pacific/india/140512/marital-rape-officially-legal-india
[ii] available at: http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html
[iii] (1996) 1 SCC 490
[iv]Tandon, N. & Oberoi, N., Marital Rape — A Question of Redefinition, Lawyer’s Collective, March 2000, p. 24.
[v] 1 Hale, History of the Pleas of the Crown 629 (1778).
[vi] Exception to Section 375 of the Indian Penal Code, 1860.
[vii] Section 376-A of the Indian Penal Code, 1860.
[viii] Law Commission of India, 42nd Report, 1977, Indian Penal Code, para 16.115, p. 277.
[x] Subsequent research finds that more women are raped by their husbands each year than by strangers, acquaintances, or other persons. Over a third of the women in our country’s battered women’s shelters report being sexually assaulted by their husbands.
[xi] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.
[xii] Article 51-A(e) of the Constitution of India.
[xiii] Section 375(6) of the Indian Penal Code.
[xiv] Section 376 of the Indian Penal Code.
[xv] Because radical restructuring in the United States, Canada and New South Wales has proved disappointing. See Nicolson, D. & Bibbings, L., Feminist Perspectives on Criminal Law (1st Edn., Cavendish Publishing Ltd. London, 2000), p. 185.