Criminalisation of Marital Rape

WHY IN NEWS?

• Recently, a batch of petitions seeking criminalisation of marital rape, has been filled in the Delhi High Court.
• In response to it the Union government has replied that it is considering a “constructive approach” towards criminalising it and had sought suggestions from various stakeholders.
• The petition seeks to amend the criminal law, which includes Section 375 (rape) of the Indian Penal Code (IPC).

BACKGROUND:

• Rape represents any non-consensual sexual intercourse or consent gained by using any kind of fear, fraud or under situation of unsoundness of mind, intoxication etc.
• Such sexual intercourse or Rape between non-spouses is illegal but Marital Rape, i.e., the act of having non-consensual sexual intercourse with one’s own wife, is kept outside the definition of rape in many countries.
• In India also, under Section 375 of the Indian Penal Code (IPC), non-consensual sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is kept as exception outside the definition of rape. However;
  • Section 376-A criminalizes the rape of judicially separated wife.
  • In Independent Thought vs Union of India (2017), Supreme Court criminalized the marital rape with wife between 15-18 years of age.
  • Kerala High Court allowed Marital Rape as a valid ground for Divorce.
• Currently marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law [Shariat] Application Act, 1937 and Special Marriage Act, 1954 >> it cannot be used as a ground for divorce and cruelty against husband.
• Although Section 3 of the Protection of Women from Domestic Violence, 2005 contradicts the exception provided by section 375 and considers any physical, sexual, verbal, and emotional abuse as Domestic Violence.

STATISTICS:

• As per International Men and Gender Equality Survey 2011
  • 1 in 5 men has forced in wife to have sex
• As per UN population Fund
  • More than two-third of married women in India have been beaten or forced to provide sex.
• Over 104 countries have criminalized marital rape so far.

ISSUES WITH EXCEPTION OF MARITAL RAPE UNDER IPC

• Violates fundamental rights of women:
  • This exception clause violates the women’s fundamental right to equality (Article 14), freedom of speech and expression (Article 19), and most of all the right to life and personal liberty (Article 21).
  • It also denies the agency over their own bodies to women.
• Negative effect on relationship:
  • It indirectly makes husband the master of wife, which affects the behaviour, choices and thinking of wife as well as the sanctity of marriage
• Promotes sexual violence:
  • It increases the societal inequalities based on gender and weakens community sanctions against perpetrators.
  • Thus, creating an environment of tolerance towards sexual assault.
• State failed to assess the depth of such crimes:
  • There is a low reporting of marital rapes due to societal conditioning and low legal awareness.
  • Inaccurate method of collection of National Crime Records Bureau (NCRB) data and out of court settlements due to the lengthy process of justice/lack of admissible proof also makes such issues under the carpet.
• Lack of data:
  • Marital rape is not a crime in India and it is one of the only 36 countries where marital rape is still not criminalized.
  • Since it is not a crime to rape a wife in India, the National Crime Records Bureau (NCRB) does not maintain any separate statistics on marital rape.

ARGUMENTS FOR CRIMINALIZING MARITAL RAPE:

• Justice J. S. Verma Committee Recommendation:
  • The Justice J. S. Verma Committee, constituted in the aftermath of the horrific Nirbhaya gang rape in 2012, recommended for removal of this exception.
  • It pointed out that the acceptance for marital rape stems from the outdated notion of wives as property and goes against the institution of marriage in modern times as a partnership of equals.
• Consent in marriage is not “consent in perpetuity”:
  • Consent in marriage can’t be consent forever and at the cost of dignity of one individual
  • There is false assumption that >> on marriage a woman gives consent to her husband in perpetuity, which she cannot retract.
  • Since courts through many judgments have recognised that consent can be withdrawn even during/in-between a sexual act, the assumption of “consent in perpetuity” cannot be legally valid.
  • This concept in colonial-era law has roots in the antiquated idea that a woman is the property of her man >> which has no place in modern civilized society.
• International experiences:
  • Under the impact of the second wave of feminism in the 1970s, Australia became the first common law country to pass reforms in 1976 and after it, many Scandinavian and European countries made rape in marriage a criminal offence.
  • The marital rape exception was overturned by the House of Lords in 1991.
  • Canada (1983), South Africa (1993) also enacted laws that criminalise marital rape.
• Shortcomings in existing laws:
  • Even-though Domestic Violence Act, 2005 deals with sexual violence >> it is considered to be a civil law by the courts and thus the accused can get away without any jail term.
  • Another problem is that while the term “sexual abuse” is mentioned, the act doesn’t explicitly define “rape” as is defined in section 375 of the IPC.
  • Thus, the current law has no provision if a woman wants to file a criminal case against her husband if she is being raped by her husband.
• Protection of fundamental rights of women
  • The criminalization of marital rape would help protect the basic rights of women such as the right to live with human dignity, right to sexual privacy, right to bodily self-determination and right to equality.
  • The UN Committee on Elimination of Discrimination against Women had twice (in 2007 and 2014) urged India to criminalise marital rape on similar grounds.

ARGUMENT AGAINST

• De-stabilizing effect on institution of marriage:
  • Marriage is considered as a sacred bond in India by a large section of society.
  • It is an important institution for the survival of the family with living together at its foundation.
  • The government has taken a stand on multiple occasions that criminalising marital rape will threaten the institution of marriage as it may amount to excessive interference with the marital relationship.
  • 172nd Report of the Law Commission on Review of Rape Laws in 2000 upheld this position.
• Affect right to privacy:
  • Currently, state’s approach was largely of non-intervention in family life.
  • Some argue that criminalizing marital rape >> would allow the State to interfere in the personal affairs >> hence may impinge the right to privacy.
• Potential misuse of legal provisions:
  • There is a growing misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of IPC and the Protection of Women from Domestic Violence Act, 2005.
  • Criminalising marital rape could become an easy tool for harassing husbands.
• High subjectivity:
  • As it is difficult to prove in a court of law whether the sex was consensual or not.
  • When marital rape is considered a crime, there will be a burden either on the wife to prove the offence or the husband to prove himself innocent and therefore it will be very difficult to apply.
• Other legal recourses available:
  • Domestic Violence Act, 2005 deals with marital rape in India and thus there is no need to criminalize it under separate law.

WAY FORWARD

• Defining the crime:
  • There is an urgent for proper definition of marital rape under criminal laws in order to remove provisions which lead to inequality and allow wife to take up the issue as a criminal offense.
• Awareness generation:
  • Create awareness in society to change attitude towards women and modify the old socio-cultural practices which allow woman to be treated as property and lead to violence in private spaces.
• Multi-stakeholder Approach:
  • The sentencing could be decided by an expert committee consisting of medical personnel, family counsellors, judges and police on the basis of varied aspects like the couple’s sexual history, physical and psychological harm to the victim.

PRACTICE QUESTION:

Q. Examine the constitutional and moral validity of the immunity provided for ‘marital rape’ under the Indian Penal Code