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This article is written by Reema Jain, a first year student from Symbiosis Law School, Hyderabad. In this article she discusses about the contradictions within the legal framework of Section 354 and section 375 of Indian Penal Code, 1860.
The legal framework of our democratic nation is vast. Within that vastness, there are several contradictions that often reinforce difficulties for the marginalized sections. One such contradiction pertains to the law regarding marital rape. The stance of legislative organ of the state machinery is clear, they believe marriage is sacred and criminalization of marital rape would lead to the breakdown of the institution of marriage. The stance of judiciary is however blurry and this article seeks to shed light upon these hazy opinions.
Section 354 of the Indian Penal Code, 1860 (Hereinafter referred to as “The Code”) shows that use of criminal force upon a woman with the intent of outraging her modesty is a punishable offence. With that contention, subjecting a woman to non-consensual sexual intercourse is a form of outraging her modesty. In section 375 of the Code, “Rape” is a punishable offence. However, the controversy and contradictions stem from the exception of this provision, where a husband who commits rape on his own wife would be exempted from the category of rapists. Whether a man is the husband of a woman or not, criminal force is employed and therefore the exception in section 375 echoes patriarchy and injustice.
WHAT CONSTITUTES THE MODESTY OF A WOMAN?
In order to understand how the criminalization of outraging the modesty of a woman is in sharp contrast to silence on marital rape by the judiciary, it is imperative to understand what constitutes the modesty of a woman. In the case of Major Singh v. State of Punjabthe modesty of a woman was defined as:
“The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty capable of being outraged.”
Another important definition of modesty was given by the Supreme Court in Tarkeshwar Sahu v. State of Bihar, which is as follows:
“The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.”
These definitions clearly show that if criminal force has been employed against a woman with sexual intentions, the modesty of a woman is outraged. The reproductive and sexual choices of a woman are intimate choices and denying her the right to make such choice is taking her right away from bodily autonomy that is guaranteed under Article 21 of the Constitution. This privacy is relevant in this context because female human beings as a class possess modesty and forcefully subjecting them to sexual intercourse outrages and shocks their sense of decency. This act of shocking a woman’s sense of decency does not solely outrage her modesty but also violates her right to privacy and right to life under Article 21 of the Constitution.
CAN A HUSBAND OUTRAGE THE MODESTY OF HIS WIFE?
In order to outrage the modesty of a woman under section 354 of The Code, certain essential elements have to be satisfied. These elements are: (1) Use of assault or criminal force on her (2) Knowledge that the assault or criminal force can outrage her modesty.  Under section 350 of The Code, Criminal force is defined as the force that is used against the victim against their consent with the knowledge that it would cause injury to the victim. Therefore it is instrumental to also understand what “injury” and “force” mean. Under section 44 of The Code, injury is harm that is illegally caused to person, mind, body or reputation of a person. Therefore, forced acts of sexual nature do cause injury as they cause harm to person, body, mind and even reputation in some cases. Section 349 of The Code includes all those acts that cause motion, change in motion or cessation of motion of another, in order to define force. It can therefore be deduced that when a man forcefully subjects his wife to sexual acts, he employs force despite her resistance. The second essential is quite natural as criminal force is employed to enter into sexual acts and therefore husband is reasonably presumed to have knowledge of the same. This shows that husbands can outrage the modesty of their wife. However, it is a giant question mark when it comes to the cognizance of the courts. Do courts consider the fact that a husband can outrage his wife’s modesty?
The verbatim of Section 354 says “Assault or criminal force to a woman…”, which includes the class of all women including the wife of a man. Unlike section 375, no exception is given to the husband. Therefore, it can be said that as per the provision a man can outrage the modesty of a woman. Upon the analysis of the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat this moot point can be answered to some extent. In this case the wife lodged an FIR which said that the husband subjected her to sexual perversion. He forced her to indulge in the acts of oral sex and he also asked to have sexual relations with him in public places. She further complained that he forcefully took her clothes off and indulged in unnatural sex with her. Upon resisting and complaining, he threatened her. She was emotionally and physically tortured and broken.
An important observation was made by the court in this respect. If a man commits such acts that are not acceptable to a wife even in private and these acts are also not acceptable by the society, then such acts fall under the scope of section 354. It was further observed that in this age and time, no civil society would approve of perverted sexual acts in a spousal relation and therefore unnatural sexual acts are a ground to outrage the modesty of a wife. It was further held that acts like hugging by a husband in public will not outrage the modesty of a woman as such acts are not considered indecent by the society. However, such acts that go against public morality that are committed in public and not consented by the wife also become a ground for offence under section 354. It is now imperative to understand what acts can be considered as “unnatural” under section 377.
The term unnatural is defined as acts that are contrary to the forces of nature and are abnormal. Therefore, carnal intercourse with a woman against the order of nature is an unnatural act. Unnatural offence hints towards “Sexual perversion”. Upon the reading of section 377 it can seen that the carnal intercourse between heterosexuals even when done voluntarily was considered unnatural and punishable. However with the subsequent declaration of section 377, it is not punishable. However, the term “Voluntarily” in this provision still holds substance. Indulging in any carnal acts without the consent of the wife would be considered unnatural and would make it punishable. It was also held that even if husband and wife intend to have a healthy conjugal life, one-sided forceful demand for unnatural sexual practices like oral sex under the garb of marriage will not be considered by the court.
Lastly, in the case of R. v. Miller, husband was not held liable for the rape of his wife but he was still punished for committing bodily assault. Therefore, it can be understood that a man is capable of outraging the modesty of his wife and that is a punishable offence. However, if this is a punishable offence, then why is marital rape not a punishable offence? Why does marriage amount to irrevocable consent of a wife to establish a sexual relationship between them, especially in Indian context where most marriages in India are either arranged by the family or are forced?
When a man has a sexual intercourse with a woman against her will and consent it is termed as rape under section 375 of The Code. When a man commits rape against his wife who is older than fifteen years of age, it is considered as marital rape. Every woman is protected against the crime of rape, however married women are not given the protection of law. Under Article 14 of the Constitution, every person is given equal protection of law. There can be classification between groups, but those classifications must be based on intelligible differentia. Separating the class of wives from that of the class of other women is arbitrary. It was contended in the case of Independent Thought v. Union of Indiathat this distinction is discriminatory and does not have a rational nexus with the objective sought behind this exception. In Suchita Srivastava v. Chandigarh Administration, Supreme Court held that Right to make choices with respect to sexual activity was associated to Right to liberty, Right to bodily integrity and Right to Privacy, which are guaranteed under Article 21. Married women should not be exempted from this bracket of protection by the virtue of their marriage, especially when a fair share of marriages are forced.
Under Child Marriage Restraint Act 1929, marriage is prohibited when the girl is below the age of eighteen years. However, sexual intercourse with a wife would not be considered a rape if she between the age of fifteen and Eighteen, whether consensual or otherwise. This anomaly has to be corrected and sexual intercourse with a woman until she is eighteen years of age should be considered a rape. This was reflected in the 84th Law Commission Report of India.
Under section 2(d) of the Protection of Children from Sexual Offences Act 2012, any individual below the age of eighteen years would be considered a child. By decriminalization of non-consensual rape of a child between the age of fifteen and eighteen years of age, girl child is being subject to violence which the statute seeks to protect. Under Article 34 of the Convention on Rights of Child, Government of India is obligated to undertake all such steps that prevent the child from engaging in coercive and illegal sexual activity. By decriminalizing such heinous offence under the garb of marriage, the state is sanctioning a child and human rights violation.
Under Article 21 a girl child is entitled to bodily dignity and reproductive choices which are often violated when the wife gets pregnant as a result of marital rape. Under Article 15(3), the state is allowed to make legislation for the welfare of women and children. Therefore, the legislation of POCSO has an overriding effect. Therefore the legislation of POCSO should be considered over the exception to section 375.
The exception under section 375 further propagates rape culture where a man is given free license to rape his wife and the society would consider it an “Internal matter”. The libido of man is given precedence over the fundamental rights of a woman. Even when the Judiciary has acknowledged that rape outrages the modesty of a woman and all the elements of rape are present, it exempts husbands from such punishment. Under section 498A, marital rape can even be considered as cruelty, but it still doesn’t constitute a punishable offence. This arbitrary and discriminatory provision, robs a woman off her dignity, autonomy and prevents her from getting an equal protection of laws. This exception cuts through the skin of pseudo notion of protecting the institution of marriage and reveals the bare bones of internalized patriarchy, oppression and discrimination.
Author: Reema Jain, Symbiosis Law School, Hyderabad.
 Major Singh v. State of Punjab, (1966) 2 SCR 286.
 Tarkeshwar Sahu v. The state of Bihar, (2006) 8 SCC 560.
 Ramkripal Singh v. State of Madhya Pradesh, (2007) 11 SCC 265.
 Raju Pandurang Mahale v. State of Maharashtra, (2004) 4 SCC 371.
 Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCCOnLine Guj 732.
 R. v. Miller, (1888), 22 QBD 23.
 Independent Thought v. Union of India, (2017) 10 SCC 800.
 Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989.
 Law Commission of India, Rape and Allied Offences: Some Questions of Substantive Law, Evidence and Procedure, Report No.84 (May, 1980).