-By Raja Reeshav Roy* and Bhavya Kansara**
In the first part of our article, we discussed the concept of marital rape along with Rape laws in India and how marital rape is against the ethos of Part III of the Constitution of India. In this second part, we will be looking at the arguments that are given against criminalising marital rape. We will also be analysing the laws against marital rape in other jurisdictions and will be concluding thereafter.
Arguments against criminalising Marital Rape
The defences supporting marital rape are manifold. Advocates defending the concept of criminalising marital rape have vehemently argued that marriage is a sacrosanct institution in India and any sort of interference within it will lead to the breakdown of marriages as the law cannot be allowed to enter into the confines of a bedroom. Proponents of this argument believe that the prevalent culture and the concept of marriage in India, unlike western countries, do not provide a conducive environment for the criminalization of marital rape. Also, since a majority of people in India are illiterate, conservative and lack social empowerment, it will take a long time to change the mindset of the society.
Another argument put forth against the criminalization of marital rape is that marriage provides an irrevocable license to the husband to engage in sexual activity with his wife as and when he desires. The rationale behind this argument is that marriage is considered to contract wherein two people agree to live together and impliedly consent to have sex with each other. Sexual intimacy between husband and wife can in no form be termed as rape as marriage indicates an implied consent in itself. Thus, even if a husband physically forces his wife to have sex it cannot be considered as rape and it comes under the scope of the functional perspective of marriage.
The government of India in the recent case of RIT Foundation vs The Union of India has submitted that marital rape is an undefined and vague term and if made a criminal offence will be highly misused by the wives to harass and falsely accuse their husbands. The Law Commission of India in its 172nd report has also stated that it won’t be feasible to make marital rape as a crime in India as it will destabilize the institution of marriage and will create a situation of anarchy in families.
It is also contended that the cases of marital rape in India are very few in number and their gravity and seriousness are very less as compared to the non-marital rapes. Supporters of the marital rape exemption believe that criminalising marital rape is too women-centric. Moreover, it will be very difficult and depressing for a woman to prove that she was physically forced to have sex with her husband. Lastly, it is even purported that women already have adequate legal recourse against marital rape as there exist many domestic violence laws for the protection of women such as Protection of Women from Violence Act, Section 498A of IPC and Section 13 of the Hindu Marriage Act.
Marital Rape in other Jurisdictions
In the case of R v R in 1991, the House of Lords had termed the “implied consent” theory as a regressive practice and hence abolished spousal rape exemption but India is still following the theory which treats women as chattel.
In 1984, The New York Court of appeals in the case of People vs Liberta said that A marriage which involves domestic violence and has reached a point where the sexual relationship between the spouses is not consensual but is, in fact, an act of abuse or violence then the state should not have any interest in protecting the marital privacy of the couple nor should it try to reconcile the marriage between the two. The court observed that marital privacy means the privacy which both husband and wife are agreeing to and are enjoying, and not a privacy which is, in fact, shielding abuse.
Australia was the first common law country to pass a law to bring reforms that made rape within the marriage a criminal offence, they did this way back in 1976 when the second wave of feminism was at its peak. During the Mid-1900s, many of the Scandinavian countries and the countries belonging to the communist bloc in Europe passed laws that criminalised rape by the spouse, these countries include the erstwhile Soviet Union, Denmark, Norway, Sweden and Czechoslovakia. Poland in 1932 made marital rape a criminal offence and they were the first country at that time to bring any such law. From the 1980s, Many of the common law countries such as South Africa, Ireland, Canada, Israel, Malaysia, Ghana, took the similar path and gradually abolished the immunity which was given to the spouse. The European Parliament in the year 1986 passed a resolution on Violence against Women which called for the criminalisation of marital rape and was soon followed by many nations including Germany, France, Belgium, Netherlands etc. In the United States of America, between the years 1970 and 1993, all the 50 states made marital rape a criminal offence.
In 2002, Nepal also got rid of marital rape when their Supreme Court in a landmark decision held that the exception of marital rape goes against the aspects such as the right to privacy and other constitutional rights that are granted to an individual. The court found the classification to be unreasonable where an act which is committed against an unmarried girl is a crime while the same act when done against a married girl by her spouse, does not attract any guilt.
Today when more than 70 countries of the world have criminalised marital rape why should India stick to the web of patriarchy. Almost all the progressive societies of the world recognise marital rape and India must follow the suit soon.
All these arguments are a clear indicator of the fact that the government is not ready to make marital rape as a “Penal” offence any time soon. We are in 2020 and being in a civilized society, it is high time we do away with such inordinate practices. And As long as the law continues to ignore women’s autonomy over her body her rights will remain violated.
At a time when so many countries have recognised Marital Rape as an offence in one way or another, it doesn’t reflect well on our country to carry forward without bringing any substantive reform in this regard.
Justice JS Verma committee has observed that “Rape or sexual assault is not a creep of passion but an expression of power and subordination. No relation, including marriage, supplement an irrevocable consent of sexual activity.”
The intent of the government at this given point of time doesn’t seem to be very enthusiastic towards bringing any change. In such a scenario the whole focus shifts towards the judiciary, The RIT foundation case is pending before the Delhi High Court for a long time.
It is said that every coin has two sides, similarly, there is a thin scope for any such law to be misused. Also, in a system where justice prevails and we have such a fine set of judges it is a wild assumption that criminalising marital rape will destroy the institution of the marriage. In a country where marriage is considered sacred and women are given the space of Devi (goddess), continuous exploitation of bodily integrity of such women is something which we as a society should be ashamed of. Our ultimate aim should be justice for all women, then only we can achieve women empowerment in the true sense and can progress as a society.
We would like to conclude by using Justice Arijit Pasayat’s words “while the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female.” Hence, a rape in any form should not be tolerated in modern Indian Society.
The author* and the co-author** are 5th year and 2nd year students respectively at National Law University, Jodhpur.