Arguments against criminalizing marital rape in India

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This part (The first part of the article could be found at https://thatmate.com/2016/11/04/marital-rape-in-india/) would give a “point by point rebuttal of arguments against criminalizing marital rape.” 

The Minister for women and child welfare, Ms. Maneka Gandhi recently told Parliament that a lack of education along with poverty, religious beliefs and societal norms, among other reasons, make such a law out of the question. Mrs Gandhi later reversed her position, saying this was now under consideration.

“This is one of the most complicated places to intervene because you are intervening in the bedroom,” she explained to reporters earlier this month. “How to do it with grace and with firmness is something we need to negotiate.”

Many theories and arguments have time and again been put forth to advance the justification given for the marital rape exemption.

1) Consent Theory

This age old doctrine in effect states that by marriage a woman gives irrevocable consent for her husband to have sex with her at any time he demands it.

The New Jersey Supreme Court in the matter of State v Smith[1] stated that, “this implied consent rationale, besides being offensive to our valued ideals of personal liberty is not sound where the marriage itself is not irrevocable. If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage ‘contract,’ may she not also revoke a ‘term’ of that contract, namely, consent to intercourse?

Two submissions are put forth:

1) Divorce law recognizes that marriage is revocable. How can then one justify irrevocable consent to sexual intercourse?

2) Under the law of contracts (Marriage is regarded a contract under which a woman here is deemed to have consented to sex by her consent to marriage), no specific performance can be claimed of contracts based on personal skills or personal services. Why is then a marriage contract an exception to such rule?

Moreover, by no stretch of imagination can it be said that a person consents to harm or violence by marriage.

2) Unities Doctrine- Property Rights of husband

Also known as doctrine of coverture, this doctrine states that a woman’s legal rights and obligations are subsumed by those of her husband on their marriage. Accordingly, as she has become the property of her husband, how can an act committed on her be a violation of any legislation. This age old doctrine has been supported to some extent by the practice of kanyadan in India. However, it is submitted that this notion has now become archaic and preposterous.

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3) The “sacred” institution of Family

India boasts of having one of the lowest divorce rates in world. But she doesn’t realize that divorce option is available mostly to only those women who have a supporting family or are financially independent. Both these conditions are not prevalent in India.As India considers marriage a sacrament and doesn’t believe in interfering with this institution as it would undermine the same, she, by providing the marital rape exemption, has been violating the constitutional rights of married women.

Brave women who come out to report such cases are demonized and are tagged as an evil woman, sinner, family breaker etc. because of the belief of her disrupting this sacred institution.

It is pertinent to note here that legislations and subsequent prosecutions for crimes like adultery and cruelty have already been undermining this sacred institution and this utopian representation therefore has been shattered with increasing domestic violence, incest, molestation and brutal violation cases within families.

 A marriage in which a husband rapes his wife is already destroyed. Most importantly, we as a country ignore the fact that it is the husband’s act of rape and not the wife’s subsequent attempts to seek legal remedy that disrupt a marriage.

4) Interference in private space- public-private divide

Another principle which has been put forth is that the State cannot enter the private domain of a married couple.

Unfortunately even the Supreme Court once remarked[2] “In the privacy of the home and married life, neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of cold principles of Constitutional Law will have effect on weakening of marriage bond”.

It is humbly submitted that attempt to hold together marriages may be one of the goals of matrimonial laws, but it cannot override the elementary principle of serving justice in general and of protecting and preserving the bodily integrity of a human being in particular.Moreover, the State has enacted provisions against domestic violence, cruelty, divorce and dowry demands. More importantly, it has legislated on restitution of conjugal rights, abortion and unnatural Acts. By doing so, the State has already entered the realm of home. Why not must then marital rape, which is as heinous as these crimes, be criminalized?

5) Remedies available already

This view holds that women have alternative ways of approaching the courts and it is not necessary to charge a man with marital rape.It has already been submitted that the provisions of IPC, DVC and the Indian Evidence Act are inadequate to deal with this menace.Besides, arguments have been put forth that such remedy is not required as women have an option to have recourse to divorce. This principle ignores the fact that excusing such a savage and allowing him to marry another woman will not change his behaviour, but would rather cause more trouble to his new wife in particular, and to the society in general.

6) Difficulty to prove

The Supreme Court held[3] that the character or reputation of the victim has no bearing or relevance in the matter of adjudging the guilt of the accused. This principle should also be allowed for marital rape victims. The notion that a married woman cannot be raped because of her sexual history with her husband would then be redundant.

It is submitted that difficulty of proving something shouldn’t come in way of criminalizing an act which has been made an offence by more than 100 countries. The best practices of these countries could be looked into to provide mechanisms for solving this difficulty.

7) Abuse of provision

It must be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult.

The criminal justice system in India, with its inherent safeguards, is not quick, easy or cheap. Moreover, the stigma attached with rape trials would ensure that women would not impose frivolous charges out of sheer spite.

Besides, by raising this argument, the system degrades women by portraying them as sinners, fabricators and deranged complainants and at the same time casts aspersions on our belief and trust in the legal and judicial machinery of our country

A victim should not be denied protection simply because someone might be at risk of a fabricated case. If there is a concern, then safeguards should be provided against it rather than not criminalising marital rape.

Reports of Law Commission and other Committees:-

The Law Commission of India has, for a period of seven decades, been changing its position on marital rape. However, two other recently submitted reports need to be mentioned here.

The Justice Verma Committee Report of 2013 stated: “The IPC differentiates between rape within marriage and outside marriage.  Under the IPC sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.  The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.  Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.”

More recently, in April 2016, by a report[4] which has not been made public yet, the 14 member Pam Rajput Committee criticized the government by stating that “The Act (the Criminal Amendment Act, 2013) is silent on the issue of marital rape, making it an offence only in cases where the wife is less than 15 years of age. The Verma committee had, however, recommended that marital rape should be made an offence irrespective of the age of the wife. This shows the legislature’s failure to appreciate the growing menace of this crime wherein the victim has to suffer on a daily basis,”

State’s responsibility:

Criminalizing marital rape would act as a powerful deterrent and go a long way towards protecting women in their own homes. This would help the victims get justice and ensure that the roof over their head stays theirs.

The State is duty bound to protect its citizens. All other institutions are to be prioritized after them. The legislature must delete the exception to Section 375 of IPC and must adopt the recommendations given by NCW, Justice Verma Committee and the Pam Rajput Committee. If need be, the Canadian model (of just defining sexual assault in an inclusive manner) should be looked into.

But, mere declaration of a conduct as an offence is not enough. Systemic social and political transformations must also take place including provisions for economic and social independence for women. The police and judiciary need to be sensitized. There is also a need to increase awareness among the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if our country acknowledges that rape by one’s spouse is a rape.

It’s high time that the jurisdiction, which the husband has been exercising over his wife, be taken away from him by the state & both men and women, whether married or unmarried, be brought back under the state’s jurisdiction.

P.S This is a 3 part series article. This one being the second. The first part of the article can be accessed at https://thatmate.com/2016/11/04/marital-rape-in-india/

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Avani Kashyap

[1] 554 A.2d 713 (Conn. 1989)
[2] Harvinder Kaur v Harmender Singh AIR 1984 Delhi 66
[3] Haryana V Prem Chand. 1990 SCC  (1) 249
[4] http://indianexpress.com/article/india/india-news-india/legislature-slammed-for-not-criminalizing-marital-rape-2761529/

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