-By Raja Reeshav Roy* and Bhavya Kansara**
Every man has the right to life, to bodily integrity – Pope John XXIII
Recently, The Ministry of Home Affairs appointed a five-member committee for reforms in criminal laws. The committee is slated to resume its meetings soon and it is expected that Marital Rape will be one of the issues of contention along with other necessary areas of criminal law that will be deliberated by the committee. In the past few years starting from the Justice JS Verma committee report followed by the Hon’ble Supreme Court’s judgement in the case of Independent Thought vs Union of India and a writ petition by RIT Foundation which is pending before the Delhi High Court there has been quite a controversy surrounding the issue of marital rape. Therefore, in this two-part article, we attempt to analyse the concept of “Marital Rape” and argue that there is a need for some sort of recognition of Marital Rape as an offence in India.
Marital rape (often called spousal rape) is non-consensual sex in which the perpetrator is the spouse (husband) of the victim. It is an act where the bodily integrity of an individual is exploited inside the four walls of her own home by her husband. Rape in itself is a very heinous crime irrespective of the relationship between the perpetrator and the victim. An act of non-consensual sexual intercourse that too by someone whom you expect to protect you at all times can be a completely shattering experience for a woman. It doesn’t only physically affect a person but a crime like rape shakes the self-respect and dignity of a woman from the very core. Some of the effects of Marital Rape can be seen in form of injury from Physical Violence, Sexual Diseases and Unwanted Pregnancy, Psychological Trauma, Post-Traumatic Stress Disorder, Self-Doubts, Social Stigma and Negative impact on Child Psychology.
Undoubtedly, marital rape is a grave form of violence against women in India. According to national family health survey 4 (2015-2016), around 29 per cent of women between the age of 15 – 49 said that they had faced physical or sexual violence at the hands of their husband. The movement against the non-recognition of marital rape in India is relatively new but is witnessing some strong voices raised in this regard recently. In law, there are stringent provisions for rape but the same act, when committed by the spouse, is not even a crime.
Rape laws in India:
Section 375 of the Indian Penal Code deals with “Rape”. However, it largely excludes “Marital Rape” from its purview. Only Exception 2 to it talks about marital rape in any way, where it states that if the wife is aged above 15 then any sort of sexual encounter within the institution of marriage will not amount to rape. The law in itself is quite contradictory as the minimum legal age to get married for a girl is 18 years. However, another bright area in this regard came in the form of the landmark judgement of Independent thought vs Union of India, where the Hon’ble Supreme Court said that non-consensual sexual intercourse with a wife who is more than fifteen years but less than eighteen years will be a criminal act. In furtherance to it, some more writ petitions are being filed with the most prominent one being the RIT Foundation vs Union of India which is pending before the Delhi High Court.
The aftermath of the Nirbhaya Rape case in 2012, the Justice J.S. Verma Committee recommended that it should be made a crime. But the failure to cover marital rape in the 2013 amendment of the Indian criminal laws in India, had rendered it as a heinous but an undefined crime.
Marital rape and the Indian Constitution
The Constitution of India is the supreme law of our country and all the other laws derive their validity from it. Thus, if any law fails to pass through the realm of the constitution it is struck down as unconstitutional. The doctrine of marital exemption to rape stands in stark contrast with the principles and ideas enshrined in the Constitution of India as it violates certain fundamental rights of a married woman.
Article 14 provides equality before the law and equal protection of law to every individual within the territory of India. It also allows for reasonable classification provided that the classification must be founded on an intelligible differentia and should have rational nexus with the object sought to be achieved. Section 375 of IPC seeks to safeguard the bodily autonomy of a woman by criminalizing the offence of rape. However, ironically, Exception 2 of the same section exempts the act of forceful sexual intercourse within a marriage from being considered as “rape”. Exempting husbands from being punished for such an act is entirely contradictory to the objective sought to be achieved by section 375. This shows that the exception tries to classify women into two categories- married and unmarried, and in doing so, it violates article 14. Any sort of forced sex against a woman, whether she is married or unmarried, deserve the same treatment in the eyes of law.
Marital rape is unconstitutional and is violative of the Right to Life as per article 21 of the Indian constitution. This right goes beyond mere survival. It also includes the right to bodily integrity and right to privacy including sexual autonomy within itself. In KS Puttuswamy the Hon’ble Supreme court held that Right to Privacy is a fundamental right and held that right to make choices regarding sexual relations and right to abstain from unwanted and forceful sexual activities are also included within the ambit of Right to privacy. The Supreme Court has also recognized that a woman’s right to privacy and to abstain from sexual activity is not lost by her marital association. Therefore, the marital exemption to rape violates a married woman’s right to privacy by forcing her to enter into a sexual relationship with her husband against her wishes.
Additionally, exception 2 violates the victim’s right to live with human dignity which is an important right enshrined under Art 21. In Bodhisattwa Gautam vs Subhra Chakraborty, the Supreme Court held that a sexual offence like rape not only degrades and violates the dignity of a woman but also it is a crime against the entire society. Rape, whether marital or non-marital, is devastating and traumatizing and it pushes a woman into deep emotional crisis and societal mockery. Thus, the marital exemption to rape, which doesn’t penalize a husband for engaging in the acts of forced sexual intercourse with their wives, goes against the very essence of the right to life under Article 21 and is therefore unconstitutional. Moreover, it also deprives a married woman of her right to good health and bodily self-determination and therefore such an exception is unconstitutional.
In the second part, we will be discussing the Arguments that are given against the idea of criminalisation of marital rape. We will also be analysing how the jurisprudence of Martial rape has evolved in other jurisdictions and will subsequently conclude our arguments.
The author* and the co-author** are 5th year and 2nd year students respectively at National Law University, Jodhpur.