The Indian Penal Code (IPC) came into effect in 1860. The country (UK), whose drafters drafted our penal code, has criminalized marital rape in 1991.
In India, the offence of marital rape is not a criminal offence under the IPC. This is by virtue of an exception provided by the legislators under the definition of rape (Section 375 of IPC), which reads as follows: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
The Supreme Court had in 1992, held that “it is not possible to believe that when a married woman has sex with her husband in the privacy of their bed-room she would suffer abrasions on her body and the vaginal walls.”
Very recently, in 2015, the Supreme Court refused to entertain a woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person.
However, three groups of women are protected against marital rape in India in the following manner:
1) Rape on women below the age of 12 years (Exception 2 to Section 375 and Section 376 of IPC)- offence punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine
2) Women above the age of 12 years and below the age of 15 years (Section 376 of IPC)-offence punishable with imprisonment of either description for a term which may extend to two years or with fine or with both
3) Women living separately from husband under a decree of separation or under any custom or usage (Section 376A)- offence punishable with imprisonment of either description for a term which may extend to two years and shall also be liable to fine
Also, Section 498A of IPC has made cruelty to wife an offence. However, this provision has only protected them against “perverse sexual conduct by the husband”. The parameter for the same has not been discussed much by the courts.
Besides, the Domestic Violence Act, 2005 only provides for civil remedies for the criminal remedies already provided for in IPC. It also disregards sexual abuse only if it threatens life or is capable of causing grievous hurt, it doesn’t take consent into consideration.
Moreover, Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task
The provisions with respect to child marriage and marital rape are highly entangled. As per the Prohibition of Child Marriage Act, legal age to marry is 18 years for girls and 21 for boys. How can then one not consider non-consensual intercourse as a rape on a girl aged between 16-18 years?
Another anomaly is when the exemption is for only those cases of rape committed against women above the age of 15 years, why is there a lesser penalty of 2 years imprisonment as against 10 years imprisonment in other cases.
A panoramic view of the options a married woman has against rape committed on her exhibits that the legislations are abstruse and everything has been contingent on the interpretation by Courts.
Marital rape exemption vis-a-vis the Constitution of India
1) Article 14
Article 14 of the Constitution states 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.
In one case, while denying bail to a man accused of sodomizing his pregnant wife, a Delhi Court observed, “A victim of marital sexual abuse cannot be discriminated against only because she is the wife of the offender and has to be treated as any other rape victim,.”
The State can treat different persons in differently if circumstances justify such treatment. For that, the provision has to pass the test of reasonable classification and non-arbitrariness. The state, while providing an exemption in cases of marital rape, makes a classification between married and unmarried women ie. Differentiation on the basis of marital status. This differentiation is neither reasonable nor does it further the object of the given act (in this case, IPC). Moreover, it is arbitrary.
Hence, it is submitted that it violates Article 14 of the constitution.
2) Article 21
Article 21 of the Constitution provides that No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Supreme Court of India in Bodhisattwa Gautam v. Subhra Chakraborty 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.”
In State of Maharashtra vs. Madhukar Narayan Mandikar, the Supreme Court had dealt with the right of privacy over one’s body. It decided that a prostitute had the right to refuse sexual intercourse.
In The Chairman, Railway Board v. Chandrima Das, the Supreme Court again held that the offence of rape with any women (citizen or non-citizen) is attack on her dignity and hence violation of violates her right to life under Article 21.
In Suchita Srivastava v. Chandigarh Adminstration, the Supreme Court, while considering a case on abortion, held that “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. In view of this, woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.” The court also observed that rape can be equated with a `grave injury to the mental health’ of a woman.
Thus, article 21 has come to be seen as an article conferring right to life with dignity. Life doesn’t denote mere physical or animal existence. While rape has generally been stated to be violation of Article 21, it is bewildering to note that this right has been taken away from married women. Taking control over a married woman’s body and making her live a life of drudgery surely does amount to mere animal existence.
Even though the Article provides a way out for the state to take away this right by way of “procedure established by law”, such procedure, as per the interpretation by Supreme Court in various cases, must not be arbitrary, whimsical or fanciful. Surely, the marital rape exemption doesn’t pass the above-mentioned test.
Hence, it is submitted that this exemption is a blatant violation of right to live with human dignity, right to sexual privacy, right to bodily self-determination and right to health and thus of Article 21 of the Constitution.
3) Article 51
The Constitution of India also in its Article 51A (e) states that it is the fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women. By providing for the marital rape exemption, the state is promoting contrary practices.
The December 1993 Declaration on the Elimination of Violence Against Women by the United Nations High Commissioner For Human Rights states, “Increasing criminalisation of spousal rape is part of a worldwide reclassification of sexual crimes “from offenses against morality, the family, good customs, honour, or chastity… to offenses against liberty, self-determination, or physical integrity.”
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.
It is also important to note here that worldwide more than 100 countries have criminalized marital rape in one way or the other.
P.S This is the third and last part of the 3 part series article. The first one can be accessed at https://thatmate.com/2016/11/04/marital-rape-in-india/ and the second one at https://thatmate.com/2016/11/07/arguments-against-criminalizing-marital-rape-in-india/