Should Marital Rape be Criminalised in India?
By Jyoti Singh
The notion of rape and sexual assault remains a taboo in India even in the 21st century, let alone marital rape. The definition of rape under the Indian Penal Code under section 375[i] , though stands amended, yet is rather limited in its scope. Rape refers to unwanted sexual intercourse or oral sex done without the consent or against the will of the woman. It is punishable under section 376 of IPC which provides whoever commits rape shall be punished with imprisonment of either description which may not be less than a term of seven years but may also extend to imprisonment for life or for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Marital is said to be committed when the perpetrator is the spouse of the victim[ii]. However, under the Indian Penal Code, Marital rape is an exception to the offence of rape. Thus, making one of the most deplorable and disgraceful acts of all, explicitly legal in India. It shows that India has certainly failed to recognize the importance of consent under all circumstances, whether in or outside marriage. It exhibits the dubious attitude of the legislature. Where, on one hand, rape of an unmarried woman is punishable with a term which shall not be less than seven years, rape of a married woman by her husband, on the other hand, is not punishable at all. The simple question that the legislatures chose to ignore is “Whether there can be two parameters to define as to what constitutes rape on a woman?” It is also the prima facie the violation of article 14, 15 and 21 of the constitution. The Indian rape law allows the perpetrator to get away with a heinous crime merely because he is the husband of the victim. In RTI Foundation v. Union of India[iii],the Central Government submitted before the Hon’ble High Court of Delhi that Criminalizing Marital Rape may destabilize institution of marriage. Central Government further submitted that that merely deleting Exception 2(which provides for marital rape as an exception to the offence rape) will in no way serve any useful purpose as a man is said to commit 'rape' as defined under Section 375 of IPC cannot be the same in the case of marital rape. If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his wife.
Further, the same law makes legal age for consent to marriage 18 years for a woman, but provides protection from sexual abuse with or without consent only up to the age of 16 years. Marriage in India is seen as pious institution. However, men exercising sexual superiority and making a woman a victim of sexual abuse in the “holy matrimony” does not amount to an offence under the Indian penal laws.
However, until and unless, such laws are amended full-fledged freedom of women cannot be assured. Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. In a study by Equality Now[iv], where the laws of over 80 countries were reviewed, it was found that in over 10 countries it was perfectly legal to rape your spouse, including India, China and all Middle Eastern countries except Qatar, Israel. In India, one third of men admit to forcing their wives into a sexual act[v]. Such laws allow the perpetrators to walk free by marrying the victims. In a recent study funded by National Institute of Justice, it was found that women who had been physically assaulted by an intimate partner, two-thirds of those women had also been sexually assaulted by that partner[vi].In addition to a victim’s physical and psychological injuries, her older children were also found to be at increased risk for depression. Therefore, these laws not only fail women but do unspeakable damage to the families of the victim. Researchers McFarlane and Malecha also found that the sexually assaulted women had worse mental and physical health than women who had been physically but not sexually abused. The women were prone post-traumatic stress disorder (PTSD) symptoms and more forced pregnancies resulting from rape[vii]. They were also found to have limited social support.
The very definition of rape under section 375 of IPC demands change. The narrow definition has been criticized by Indian and international women’s and children organizations. Even international law now says that rape includes “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” The Declaration of the Elimination of Violence against Women under Article 2 includes marital rape explicitly in the definition of violence against women.
The 172nd Law Commission report had made the following recommendations with regard to change in the rape laws.
The term ‘Rape’ should be replaced by the term ‘sexual assault’.
‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as finger/vaginal, finger/anal and object/vaginal penile/vaginal, penile/oral,
In the light of Sakshi v. Union of India and Others [viii], ‘sexual assault on any part of the body should be construed as rape.
Rape laws should be made gender neutral as custodial rape of young boys has been often neglected by law.
A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be included.
Section 509 of the Indian Penal Code was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
Explanation (2) of section 375 of IPC should be deleted and Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was also to be deleted.
Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume so.
Marital rape in India needs to be criminalized in India with immediate effect. Such criminalization will not only punish the perpetrators but will also protect women in abusive marriages. While criminalization of marital rape is complex issue involving numerous legal and socio-cultural complications, it will lay the foundations of a society where any form of sexual violence and assault is unacceptable. The legislature by such criminalization will send a strong message as to what is acceptable in the society and what isn’t, which will in turn lead to change in attitude of not only the public but also law enforcement personnel as all sexual predators , whether outside a marriage or otherwise can be held liable for their acts.
[i] 375. 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 ~ 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.
Third/y.—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.
Fourth/y.—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.
Fifth/y.—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 I.—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 I.—A medical procedure or intervention shall not onstitute 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.'.
[ii] Herein after perpetrator refers to the husband and victim refers to victim.
[iii] W.P. (C) No.284/2015 (India).
[vii] Twenty percent of the women in the sample had rape-related pregnancies, and 15 percent contracted sexually transmitted diseases.
[viii] [2004 (5) SCC 518]