PublicationsIs non-consensual sex between a married couple a state-sanctioned rape?

January 27, 20211
+32
Introduction

Rape is defined as the act of sexual intercourse by a man without the woman’s consent or with a minor, as per Section 375 of the Indian Penal Code.[1]  Exception 2 of the same provision states that intercourse by a man with his wife not below the age of 15 years is not said to be rape and thus grants immunity to men forcing their wives to take part in sexual intercourse. However, the apex court ruled that sexual intercourse with anyone below the age of 18 is said to be rape irrespective of whether they are married or not.[2] The lacuna in this provision, still doesn’t recognize involuntary sexual intercourse to be rape, so as long as the couple is in wedlock. It is arbitrary to assume that consent to marriage by an individual implies lifelong consent to sex.

The Indian Penal Code was drafted in the 1860s, back when women were largely marginalized. A married woman was considered to be the property of her husband and did not have her own independent legal entity.[3] Which is why the code did not grant a married woman the right to file a complaint against another under her own identity.[4] Therefore Exception No. 2 (two) largely stems from the doctrine of merging a married woman’s identity with that of her husband. However, almost 2 (two) centuries down the line, now Indian law recognizes husbands and wives as two separate independent legal entities. The Indian State has actively emphasized the protection of women, and prevention of sexual assault. The legislature has codified acts like “The Protection of Women from Domestic Violence Act, 2005” (PWDVA) and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.” In spite of this, they have failed to understand the consequences of the Draconian exception of marital rape entails.

This paper attempts to highlight the prejudice, shortcomings, and weaknesses of the justice system in India concerning marital rape. It goes on to offer claims and explanations for criminalizing marital rape. The legal validity of the exception is also discussed by analyzing it with respect to Article 14[5] and 21[6] of The Constitution of India.

An analysis of the arguments in favour of marital rape being an exception

Various arguments have been made in supporting the exception of marital rape, that has been countered by courts of law and various national and international scholars. Many advocates have often used the following arguments in favour of the exception: ‘they say that women already have adequate remedies available through Section 498A of the IPC and the PWDVA.” The Law Commission of India[7], as well as other high-posted bureaucrats, have used cultural relativism to say that in the current context of Indian Culture, criminalizing marital rape is not viable. A large number of people have also actively said that marriage connotes consent, marital rape is uncommon and that women would misuse the law if marital rape was to be made a crime. These arguments all stem from stereotypes and notions of patriarchy and stigma against women that is deep-rooted in the Indian Society.

Unavailability of Adequate Legal Remedies:

The most widely used argument in favour of retaining the exception is that the Protection of Women from Domestic Violence Act, 2005, coupled with Section 498A of the IPC[8], and the Hindu Marriage Act,1955 provides enough remedies to safeguard the rights of a married woman. The domestic violence act includes sexual abuse within the ambit of domestic violence and grants remedies like restraining orders, judicial separation and monetary compensation.[9]

However, the problem is that the Domestic Violence Act only provides civil remedies, and doesn’t classify marital rape as a crime. Moreover, Section 122 of the Indian Evidence Act, 1872 restricts disclosure of communication between a married couple unless one spouse is being prosecuted for a crime by their spouse. As marital rape is not a crime and the domestic violence act only provides civil remedies, certain communication may be vital and relevant to ascertain the degree of assault, however, it is deemed inadmissible in the court, this essentially creates a loophole that is often exploited by most assaulters.[10] The HMA and PWDVA only grant women the right to seek for divorce on the grounds of cruelty, there is no literature by the legislation in place to bar the violent act or punish the husband for assaulting his wife. This essentially gives the perpetrator the freedom to walk away scot-free, marry another woman and subject her to the same abuse. The apex court also ruled that denial of conjugal relations in marriage amounts to “cruelty” and can be used as a ground for seeking a divorce.[11] This further shows that the judiciary is of the opinion that it is the woman’s duty to cater to her husband’s sexual needs, and if she fails to do so he can seek a divorce. Therefore, the laws that are in place don’t really benefit the women or truly punish the perpetrators. If the woman refuses to indulge in sexual relations, the husband can threaten to divorce her, and if she is assaulted or forced to conjugate, the maximum relief she can get is a judicial separation or monetary compensation, while the perpetrator still walks away.

Cultural Relativism:

A large number of people often compare India to the western countries, they are of the belief that Indian customs, values and religious beliefs, along with the notion of marriage being a sacrament coupled with the poor economic conditions, in terms of poverty and literacy creates an environment that is not conducive to criminalize marital rape. In India marriage is considered to be a sacred bond between two individuals and criminalizing marital rape is seen as an intrusion of the privacy of this “sacrament”.  They believe that criminalizing marital rape would destroy this institution of marriage. However, in the Independent through case[12] the Apex court ruled that “marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage.”[13]

The court was of the opinion that if divorce and judicial separation are not seen as weapons against the institution of marriage, neither should marital rape be seen as one. In the case of Nimseshbhai Desai v State, The Gujrat High court has also said that “the non-consensual act of marital rape violates the trust and confidence within a marriage and the prevalence of marital rape in India is what has damaged the institution of marriage.”[14] Moreover, the argument that Indian women are not financially independent or literate, and so would not be able to survive outside the framework of marriage is extremely flawed. It is the obligation of the State or to the Government to make provisions which will ensure that the women will have access to needed assistance in order to sustain themselves independently. Instead, not only the State is failing to do so but is also granting married men the right to rape their wives.

Implied consent:

The most common, yet most controversial argument in supporting this exception is that marriage leads to implied consent. The IPC itself defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”.[15]

If a voluntary agreement is a requirement which has been set by law, for two individuals to indulge in coitus, the same should be in place for a married couple as well. In India, arrange marriage is a prevalent practice, where the family members set up a marriage and more often than not the bride has no say, she is basically compelled to marry the groom her family has chosen for her. In cases like this, when the woman didn’t even consent to marry the said man, it is completely baseless to apply the concept of implied consent. Status quo, if the marriage was not said to be consensual, after wedlock this statute makes the woman’s consent insignificant, which essentially means she has no choice but to subject herself to her husband’s needs. However, many learned academics have gone on record to say the contrary. Sir Matthew Hale of England had declared that “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 up in this kind unto her husband which she cannot retract.”[16] The doctrine of coverture states that upon marriage, a woman’s legal rights and obligations were subsumed by those of her husband.[17] William Blackstone while defending this doctrine advocated that:

husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband”[18]

This doctrine was revoked in 1991 and was supported by the European Commission of Human Rights who attested that the relationship of the rapist with the victim doesn’t change the fact that he is still a rapist. Despite this, till date, the legislature is of the view that marriage leads to implied consent for life as can be seen in the Law Commission of India’s 172nd Report on Review of Rape Laws of 2000.[19] Not only does this undermine a woman’s consent but also completely disregard the woman’s freedom of choice to indulge in sexual relations. A woman’s role is limited to be the caretaker and to provide for her husband’s needs, be it emotional or sexual. This will be further discussed under the feminist argument.

The legality of Marital Rape: vis-à-vis Article 14 and 21 of the Constitution

Exception No. 2 (as discussed by the Author in the introductory para)  TO Section 375 of the IPC is not only ultra vires but also unconstitutional as it is in clear violation of Article 14, 15(3) and 21 of the Indian Constitution, 1950.

Article 14 of the Constitution mandates equality before the law, and also equal protection by the law, while prohibiting discrimination on the grounds of religion, sex, caste etc.[20] The preamble and Part IV of the Constitution put the burden on the state to bring about a more equal society. The Apex court has interpreted Article 14 to say “all persons similarly circumstanced shall be treated alike in privileges conferred and liabilities imposed.”[21] Therefore, the legislation that is unreasonable and discriminatory is clearly ultra vires of Article 14  and must be repealed. The marital rape exception is arbitrary as it discriminates between a married and unmarried woman, without any tangible or rational differentia as both groups are subjected to the same violence, but married women are denied equal protection. In fact, it is harder for married women to evade abusive conditions as they are financially dependent and legally bound to remain with their husband. Article 15(3) on the other hand grants the state the liberty to make special provisions for women and children, so long as it benefits them. However, the only outcome of the said exception, is that it puts married women at a grave disadvantage. It is extremely redundant as it frustrates the very purpose of Section 375, which is to safeguard women and punish those who commit the inhumane crime of rape. This law doesn’t really meet the requirement of Article 15(3), and therefore should be struck down.

Article 21 of the Constitution, on the other hand, grants individuals with the right to protection of life and personal liberty.[22] The Supreme Court affirmed that “the right to life is more than a mere animal existence”.[23] The Apex court also recognized that Article 21 guarantees the right to life with dignity, and that rape infringes the right to live with dignity.[24] Therefore, a clear exception that doesn’t recognize marital rape to be a crime, infringes the right affirmed by Article 21 of the Constitution. In the case of Kharak Singh[25], the Supreme Court acknowledged that although the Indian Constitution doesn’t explicitly grant the right to privacy as a fundamental right, it falls under the ambit of personal liberty, which is granted by Article 21. The Hon’ble Court went on to say that every woman must be entitled to sexual privacy.[26]

Article 21 guarantees all citizens to good health, which includes both physical and mental well being. Article 21 also vests individuals with the right to decide on their body or matter associated with the body. Consent of sex is one such decision however in the marital rape husbands coerce her wives to have sex without her consent, and this is a clear violation of the Right to Self Determination of Body.[27] The lacuna of the exception leaves married women extremely vulnerable which can cause physical and psychological trauma. It is an undebatable fact that rape is one of the most gruesome crimes that can be committed which can lead to serious harm for the overall well-being of a victim. The Indian judiciary struck down the exception which left married women between the age of 15-18 vulnerable, as seen in the case of Independent Thought.[28]

On a concurrent reading of the POCSO[29], the Supreme Court established that sexual relations with any individual under the age of 18, would be deemed to be rape irrespective of whether they’re lawfully wedded. However, if the judiciary has acknowledged that the exception must be struck down for child brides, they can’t overlook the fact that rape affects adult victims just as much as it does to minors. Therefore, given that this exception is extremely controversial and clearly violates Article 14, 15(3) and 21 of the Constitution of India, it reasonably follows that the exception must be repealed at the earliest. This exception clearly contradicts the rights of married women and defies the intention and values of equality and justice that are enshrined in the Indian Constitution.

From the feminist Lens

Rape in marriage is a blatant abuse of power, by which the husbands attempt to exert his dominance. This is largely because of the patriarchal family structure that is engraved in the Indian society. Russel made the following statement, which sheds light on the aforementioned point:

The notion of a wife as a property is equally fundamental to an understanding of wife rape. Not only are wives commonly viewed as the property of their husbands, but more specifically, they are seen as the sexual property of their husbands. But the viewing of wives as a husband’s property is not inevitable; it is a part of our patriarchal heritage”.[30]

In the Indian context, because of the stereotypical gender roles, the division of labour has been such that men are seen as the bread-earners and women are considered to be caretakers, putting the women in a subordinate position, which strengthens the patriarchal setup. Husbands are vested with economic independence and power, whereas their wives are economically dependent on their husbands. Moreover, women are burdened with all the chores of the household, along with rearing and caring of the children.

The problem, however, is that the division of labour in a patriarchal setup both reflects and aids the husband’s power over his partner. This gives the husband a false notion of dominance and the dependence of the wife on the husband, asserts the belief that his wife is his property.  This is the context within which wife rape and wife-beating occurs, and often continues. Wife rape and wife-beating are two very serious and cruel forms of husbands` abuse of their power over their wives. They are both extreme acts of domination. The fundamental problem is not that husbands abuse their power, but that they have so much of it in the first place. Not everyone who has power in an unbalanced power situation abuses it, but in general, where there is a power imbalance, there is abuse.

Conclusion

In India, child marriage is extremely common. A study conducted in rural areas showed that a mere 18% of women had a vague idea about sex before marriage.[31] And a staggering 70% of women said that on a normal basis they could not resist their husband’s needs and submitted to his demands. They also said that they were subjected to domestic violence if they refused to submit to their husband’s sexual desires. Therefore, it is imperative that the state take certain steps to safeguard and protect the rights of Indian women. The State must promote awareness about reproductive knowledge and issues associated with child marriage while focusing the target on most rural areas. They must also implement measures to increase the accessibility of women to safe and effective contraceptives. The state must also deliberate on the cause and effect of the relationship between HIV and the vulnerability of marital rape victims.

However, in conclusion, along with all the above-mentioned measures, the need of the hour is still to do away with exception 2 of Section 375, IPC. India should follow the path taken by other colonial countries like Australia. Australia was the first common law country to have made reforms that criminalized marital rape. In the 1970s, the second wave of feminism had hit Australia, and the legislature was quick in amending the draconian law. Ever since, other common law countries like  South Africa, Ireland, Canada, New Zealand, Malaysia and Ghana have also abolished the marital rape immunity. Moreover, India has ratified the CEDAW[32] is obligated to “take all appropriate measures” to eliminate all forms of discrimination against women.

Therefore, it is about time this law be amended for a woman’s consent is essential irrespective of whether she is married to a man or not. By not criminalizing marital rape, non-consensual sex between a married couple is nothing but state-sanctioned rape. It is an absolute loophole which is based on prehistoric notions and patriarchal beliefs and if the country is to actually achieve true gender equality, it is imperative that women be recognized as separate legal entities even after marriage, and their role should not be understood to be limited to satisfy the husband’s needs.

References

[1] The Indian Penal Code 1860, s 375.

[2] Independent Thought v. Union of India, (2017) 382 SCC (India).

[3] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986).

[4] ibid

[5] The Constitution of India 1950, art 14.

[6] The Constitution of India 1950, art 21.

[7] Law Commission of India, report 172.

[8] The Indian Penal Code 1860, s 498A.

[9] The Protection of Women from Domestic Violence Act, No. 43 of 2005.

[10] Indian Evidence Act 1872, s 122.

[11] Manish Raj / TNN / Updated: Sep 26 2014, “Denial of Sex by Spouse Is Cruelty: Supreme Court: India News – Times of India” (The Times of India) <https://timesofindia.indiatimes.com/india/Denial-of-sex-by-spouse-is-cruelty-Supreme-Court/articleshow/43470243.cms> accessed December 12, 2020

[12] Independent Thought (n 2).

[13] ibid

[14] Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2017) No. 26957

[15] The Indian Penal Code, s 375.

[16] SIR WILLIAM BLACKSTONE, 1 COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS, 442 (1893)

[17] “Coverture” (Encyclopædia Britannica) <https://www.britannica.com/topic/coverture> accessed December 12, 2020

[18] Blackstone (n 13).

[19] LAW COMMISSION OF INDIA, 172ND REPORT ON REVIEW OF RAPE LAWS (2000)

[20] The Indian Constitution, art 14.

[21] Re: Special Courts Bill v. Unknown, (1978) 380 SCC (India).

[22] Maneka Gandhi v. Union of India, (1978) SCR 621

[23] Bandhua Mukti Morcha v. Union of India, (1984) SCR (India)

[24] Independent Thought (n 2).

[25] Kharak Singh v. State of U.P., AIR 1963 SC 1295

[26] Madhukar Narayan Mardikar, AIR 1991 SC 207

[27] Admin AY, “CRIMINALIZATION OF MARITAL RAPE LAW IN INDIA-NEED OF THE HOUR: AAYUSH AKAR & SHUBHANK SUMAN” (ILSJCCLApril 16, 2020) <https://journal.indianlegalsolution.com/2020/04/15/criminalization-of-marital-rape-law-in-india-need-of-the-hour-aayush-akar-shubhank-suman/> accessed December 12, 2020

[28] Independent Thought (n 2).

[29] Protection of Children Against Sexual Offences, 2012.

[30] Russell, Diana (1990) Rape in Marriage.  Newbury Park, CA: Sage .

[31] Khan M.E., J.W. Townsend, R.Sinha and S. Lakhanpal (): Sexual Violence within Marriage  Reproductive Health, Vol: 1

[32]  Convention on the Elimination of All Forms of Discrimination Against Women, art 22.

AUTHOR DETAILS
https://i0.wp.com/www.legalmaxim.in/wp-content/uploads/2021/01/received_897601800343961-1.jpeg?resize=160%2C160&ssl=1

Author: Shourya Pratap Singh Tomar

Designation: 3rd-year law candidate, Jindal Global Law School

CITE THIS WORK

Legal Maxim (September 20, 2021) Is non-consensual sex between a married couple a state-sanctioned rape?. Retrieved from https://www.legalmaxim.in/is-non-consensual-sex-between-a-married-couple-a-state-sanctioned-rape/.
Is non-consensual sex between a married couple a state-sanctioned rape?.” Legal Maxim – September 20, 2021, https://www.legalmaxim.in/is-non-consensual-sex-between-a-married-couple-a-state-sanctioned-rape/
Legal Maxim January 27, 2021 Is non-consensual sex between a married couple a state-sanctioned rape?., viewed September 20, 2021,<https://www.legalmaxim.in/is-non-consensual-sex-between-a-married-couple-a-state-sanctioned-rape/>
Legal Maxim – Is non-consensual sex between a married couple a state-sanctioned rape?. [Internet]. [Accessed September 20, 2021]. Available from: https://www.legalmaxim.in/is-non-consensual-sex-between-a-married-couple-a-state-sanctioned-rape/
Is non-consensual sex between a married couple a state-sanctioned rape?.” Legal Maxim – Accessed September 20, 2021. https://www.legalmaxim.in/is-non-consensual-sex-between-a-married-couple-a-state-sanctioned-rape/
Is non-consensual sex between a married couple a state-sanctioned rape?.” Legal Maxim [Online]. Available: https://www.legalmaxim.in/is-non-consensual-sex-between-a-married-couple-a-state-sanctioned-rape/. [Accessed: September 20, 2021]
+32
Subscribe
Notify of
guest
1 Comment
Newest Oldest
Inline Feedbacks
View all comments
Shivam Bathija
0

This is very insightful! Well done!

https://i0.wp.com/www.legalmaxim.in/wp-content/uploads/2020/06/lexim-logo.png?fit=1421%2C346&ssl=1
68 Shantipally, Rajdanga Main Rd, Kolkata, West Bengal, India
official@legalmaxim.in

Follow us:

Copyright © Legal Maxim 2020

error: Content is protected !!