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Socanti jamayo yatra vinasyasu tat kulam.
Na socanti tu yatraita vardhate tad hi sarvada.
Where female of the family lives in grief or pain, that family soon wholly perishes.
Where female of the family is happy and satisfied, that family prospers. (Manu 3.57).
Introduction and definition
India’s ideal women are appreciated based on their characteristics like fidelity, chastity, honesty, non-fickle mind behavior, servitude towards husband, purity, and many more. This type of fascination and conditioning of women is a tumor for the society and has made domestic violence an entrenched problem in India. Domestic violence can be defined as relationship abuse or domestic abuse of physical, mental, or financial nature, even by parents, in-laws, husband, or other family members. According, to the National Crime Records Bureau’s (NCRB), Crime in India 2019 report, the crime rate registered per lakh women is 62.4% out of which majority of cases were registered under ‘cruelty by husband or his relatives’ . Violence against women has increased in the lockdown. According to Press Information Bureau’s report, 4,350 cases had been registered from March 2020 till 18 September 2020 under “Protection of women against domestic violence.” In contrast, the National Commission had registered a total of 13,410 complaints about Women (NCW) in the same time frame .
One such manifestation of Domestic violence is Marital Rape. Marital rape can be defined to be an act of forcing your spouse into having sexual intercourse without their proper consent. Marital rape is a type of domestic violence that is significantly undermined in India. It is a disgraceful offense that has scarred the trust and confidence in the institution of marriage. Even the position of law prevailing as on date in the country, is that a wife cannot proceed against her lawfully wedded husband for rape. Which is evident from sec 375 of the IPC where it clearly states that “sexual intercourse or acts by a man with his wife, the wife not being under fifteen years of age, is not rape.” However, a woman can move to the court under sec 498A of IPC “cruelty by husband or relatives of husband” and also under “The Protection of Women from Domestic Violence Act, 2005, which considers marital rape as local violence. Under which, a lady can move to the court to get a legal partition from her husband for marital rape.
Origin and Misconception
The origin of the concept of a marital exemption from rape laws is the misinterpretation of societal Stereotype idea of merging a woman’s identity with her husband and that by marriage, a woman gives irrevocable consent for her husband to have sex with her anytime he demands it. But why do we fail to recognize that IPC was drafted by ‘Lord Macaulay’ in 1861 and was primarily influenced British laws? It is also worthy to note that during 1860, when the IPC was being drafted, a married woman did not have an independent legal identity. Thus, this concept of marital exemption is based on Judeo-Christian moral and ethical standards as well as Victorian Patriarchal norms and ‘Doctrine of Coverture.’, which conceive of sex on purely functional terms, i.e., for procreation. They did not recognize men and women as equal, did not allow married women to own property, and merged the identity of husband and wife as a single legal entity. But the times have changed now, and the Indian legal system affords separate and independent legal identities to husband and wife. However, the exception to marital rape remains the same due to being defended by a misconception that, it is also part of Indian values and societal morals.
However, people fail to understand, or they don’t want to realize that, as far as India is concerned, marriage is a Sacramental union that is sacrosanct. Hindus conceive of their marriage as a union primarily meant for the performance of religious rites. It is stated in Skanda Purana 4.68 that “two worlds, viz., the visible and the other world, are won through wife. A man without a wife is not entitled to perform the rites of Yajna about gods, manes, and guests, etc.”. Though, Manu IX, 96 it is written that marriage is an essential samskaras (sacrament) for every Hindu, and every Hindu must marry as, “to be mothers were women created and to be father were men” . But the sacred texts also ordain that woman must be treated as equal and be respected, in Manu 3.56 it is written that “where women are worshipped (respected) there gods reside; where they are not respected there no ritual or yajna yields reward”. Mahabharat’s Adi Parva (1.74.50-51), also states that “no man, even in anger, should do something disagreeable to his wife.”. So, it can be seen that, in Hinduism, the wife is not only a Grihapatni but also Dharma Patni and Sah dharmini. Vishnu Purana (1.8.16-35) says that “if lord Vishnu is understanding then Lakshmi is intellect, if Vishnu is Creator, then Lakshmi is the creation and it goes on to say that in animals, humans, god’s, the male is lord Vishnu and Female is goddess Lakshmi.” These verses clearly shows that the sacred texts believe husband and wives are equal, and none is complete without the other.
Islamic teaching also preaches and advocates marriage to be a religious and pious duty. Prof. Abdur Rahman I. Doi, in his article “Women in the Quran and the Sunnah,”  says, that according to Prophet Muhammed, “marriage is most virtuous of acts.” Prophet Muhammad has said, “when a man marries, he has completed one half of his religion.” Prophet condemned cruelties to women and preached, “Fear Allah in respect of women; the best of you are they who behave best to their wives.” The teachings of Prophet Muhammed convey the actual status of the wife in Islam. Even in Christianity, marriage is Sacramental. It is believed that the Sacrament of Christian marriage involves the couple’s entire life as they journey together through the ups and downs of marriages and become abler to give to and receive from each other. Pope Paul VI has written in Human Vitae, N 25, that “by Sacrament of Matrimony husband and wife are strengthened and consecrated for the faithful accomplishment of their proper duties, for carrying out their proper vocation and even to perfection, and the Christian witness which is proper to them before the whole world.” Christianity believes abuse and neglect break the marriage covenant. In Malachi 2:14-15, the lord described the man’s companion as his wife by covenant and warned him not to deal treachery with her.
From this, it is clear that all religions abhor and dissuade violence in marriage, thereby condemning marital rape. However, the excess patriarchal dominancy in the medieval period, ignored the concept of marital rape altogether. With due time, this cruelty became part of the present society giving birth to the misconception that provides immunity to husbands in marital rape. In the current Indian community, where women are already on equal footing with men and are given legal rights and identities, it is appalling for such discriminatory practices of misconception to continue. This derogatory practice violates numerous rights of women throughout India.
Violation of rights and marital rape
- Infringing right to equality
article 14 of the Constitution of India states that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.” The underlying object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in the Preamble to our Constitution. This doctrine of equality before the law is a necessary result of the rule of law which pervades the Indian Constitution. The immunity provided in Sec 375 of IPC to husbands violates Article 14 of the Constitution. The case of John Vallamattom v. UOI  has stated that “all persons in similar circumstance shall be treated alike both in privilege and liabilities imposed.” However, the immunization of marital rape under IPC separates and discriminates between the same class of women. On the one hand, this procedural law provides for the punishment for rape if it is done by someone else to a woman, but on the other, it immunizes the rape when the woman’s husband does it. It is high time that we understand that “a rape is a rape.” There is no distinction in this offense. Justice Arijit Pasayat  has rightly said that “while a murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female.” The Supreme court has laid down that the guarantee of equality is regarding substantive laws and procedural laws within its ambit. In Meenakshi mills ltd., Madhurai v. A.V. Visvanatha Sastri , the Supreme court held that “all litigants similarly situated are entitled to the same procedural rights for relief for defense.” But, still, in the case of rape happening to someone, they have a legal discourse to turn to; however, for the women whose husbands have forced themselves on them, they can do nothing but be a silent witness to the mockery of their rights. Merely because the husband of the woman commits this atrocity does not mean that the wife or woman with whom it happens does not suffer from physical and psychological traumas. The ignorance of the dilemma and psyche of the woman with whom such incidents happen is a grave social and legal injustice. The special provision of immunity under sec 375 of IPC does not provide any rational differentia nor has any sensible nexus as marital rape is not only savagery against women but also a violation of rights and a breach of trust in the institution of marriage. Any connection or relation among casualty and culprit does not make any offence less derogatory. So why should marital rape be any different?
- Infringement of right to life and personal liberty.
Article 21 states, “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” However, the Supreme court has interpreted this article beyond the purely literal sense. It now incorporates rights like the right to health, safe living conditions, a secure environment, privacy, and dignity. Thus, the right to life includes aspects that make life meaningful, complete, and worth living. The cultural stereotype that the girl has given lifetime consent for a sexual relationship is appalling and a clear violation of Article 21. Has anyone asked the girl whether she has given such consent or not? She is the one who is going to be a part of the relationship. And if that person forces himself on her, she has to bear with it as it is her duty as a wife. The girl with whom such incidents happen would she not suffer from phycological disorders. Would living in fear, anxiety, depression, and nightmares constitute the true meaning of the right to life and personal liberty to a married woman. A study conducted by Jennifer A. Bennie, Patricia A. Resick, and Millie Astin on “The relative effects of intimate partner physical and sexual violence on post-traumatic stress disorder symptomology” found that there is no significant difference between marital rape and stranger rape victims in terms of psychiatric disorders (e.g., major depression, obsessive-compulsive disorder, social phobia, and sexual dysfunctioning). In Bodhisattwa Gautam v. Subhra Chakraborty  the court has stated that “rape is not only a crime against a person of a woman, but it is also a crime against society. It is a crime against human rights and is violative of the victims most cherished right, namely right to live with human dignity contained in Article 21”. In this manner, is the marital exception principle not violative of the spouse’s right to live with human dignity, her privacy and other rights associated with Article 21.
In independent thought Union v. Union of India , the Supreme Court has held that “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not”. In the same case, the court held that “exception 2 of sec 375 IPC creates an unnecessary and artificial distinction between a married girl child and unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. This artificial distinction is contrary to philosophy and ethos of Article 15(3) as well as contrary to article 21 of Constitution”. The highest court of the land itself believes that the exception of marital rape is unjust but has the court not done gross injustice to the same class of people by excluding the women above 18 years of age? The court in the same case says that “this exception is contrary to the philosophy of some statutes, bodily integrity of the girl child and her reproductive choice.” But, do women above 18 years of age not have the right to bodily integrity and reproductive choice. The Supreme court has in Justice K.S. Puttuswamy (retd.) v. UOI  held that the “right to privacy includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” This ruling of the SC also does not distinguish between a married and unmarried woman. There is no contrary ruling stating ‘individuals right to privacy is lost by marital association.’ But sadly, the Defender of Rights (Judiciary) still differentiates between the rights of same class of women’s and they have to bear witness the failure of Judicial Machinery.
Marital rape and international Human rights violation
India is obligated to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination against women under Sec 2f of CEDAW (Convention on the Elimination of Discrimination Against Women). General Recommendation (GR) – 35 of CEDAW, which updated GR -19, added, among other things, that marital rape is rape based on lack of freely given consent and take account of coercive measures. This recognition of elements of marital rape highlights the infringement of the fundamental freedoms of women. The GR – 19 also notes that violence on physical and mental integrity deprives women of the equal exercise of human rights and fundamental freedoms. The direct relationship between violence and liberty elucidates that rape is harmful to the physical and mental health of a woman, whether the perpetrator is their spouse or not, and thereby violates women’s human rights and fundamental freedoms.
In addition to CEDAW, India’s non-recognition of marital rape also violates ICCPR (International Covenant on Civil and Political Rights) and the UDHR (Universal Declaration of Human Rights), which India is a party to. Article 26 of ICCPR requires that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth, or another status” and Article 1 of UDHR ordains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. Thus, the non-recognition of marital rape amounts to the violation of these articles as well. Even the United Nations conventions on the Elimination of all Forms of Discrimination against Women has proposed in its resolution that Marital rape should be criminalized and that this sort of discrimination is an apparent infringement of the law of equality and human dignity.
Recourse available in India for marital rape
After the incident of Nirbhaya rape in December 2012, Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. 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. However, Criminal Law Amendment Act, 2013 did not incorporated this recommendation. But Sec 376B was added in IPC which made Sexual intercourse without the wife’s consent by the husband during separation punishable by the punishment of not less than two years but which may extend to seven years, with a fine. Even though this section addresses the concerns and fears of women living separately, it did not help women who suffer daily sexual indignities in legally valid marriages. For, such concerns can be taken into the ambit of Protection of Women from Domestic Violence Act, 2005 and sec 498A of IPC, which provide recourse for the cruelty done by the husband or any member of the family. But the exclusion remains the same, and the woman could get a divorce from her husband under these sections. However, is the primary purpose of criminal law not defeated here by this exclusion. Is the recourse of divorce capable of doing justice to the women whose right is violated?
Positive legal change for women, in general, is happening in India. However, it is still a fact that women who are raped by their husband are more prone to multiple assaults and often suffer long-term psychological problems. UK, from where this exception to marital rape was codified for India in 1860, has made marital rape an offense punishable for 4 to 19 years of imprisonment in 2003. So, it is time we brood over the continuance of a practice that is not only contrary to our religious beliefs but has also occupied the social trust due to misconceptions. In the present modern world, where women are capable and active members of working society, the social stigmas of marital rape are violation of many rights. This social stigma is a joke to women empowerment and the vision of Constitution framers who envisioned for equality before law and equal protection of law.
It must be understood that the perpetrators’ identity or the victim’s age or habit doe not change the fact that they were raped; giving the color of marriage and justifying it only leaves a more horrific memory and experience for the victim. The judiciary needs to change its stand and make a solid stand to justify the violation of women’s rights as it has done in many other cases. The lawmakers must condemn this abhorring practice of marital rape and make laws to safeguard the rights of all women equally, irrespective of their marital status. A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. Making marital rape illegal or an offence will remove the destructive attitudes that promote wife rape. Such an action will raise a moral boundary that will inform the society that a punishment results if the boundary is transgressed. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that marital rape is not husband’s privilege, but rather a violent act and an injustice that must be criminalized.
Education also plays an essential role in disciplining and improving society. India must also focus on educating all sections of society to overcome their social stigmas and respect the other person’s privacy and choices. Educating children is the cornerstone to building a wholesome, lawful nation that is deprived of abhorring social traditions such as marital rape.
 National Crime Records Bureau, Crime in India 2019 Statistics Vol. 1, (Ministry of Home Affairs)
 Press Information Bureau, Increase in Domestic violence against Women, (Ministry of Women and Child Development), 22 Sep 2020 report.
 Dr. Paras Diwan, Modern Hindu Law page no. 64, (Allahabad Law Agency, Faridabad), 23rd edition, 2017,2018.
 Prof. Abdur Rahman I. Doi, “Women in the Quran and the Sunnah”, iium.edu
 John Vallamattom v. UOI, (2003) 6 SCC 611: AIR 2003 SC 2902
 Tulsidas Kanolkar vs. The State Of Goa, AIR 2003 SC 1
 Meenakshi Mills Ltd. V. UOI, AIR 1955 SC 13: (1955) 1 SCR 787
 Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR 922, 1996 SCC (1) 490
 Writ Petition (Civil) No. 382 of 2013 decided by SC on 11 October 2017
 Justice K.S. Puttuswamy (retd.) v. UOI (2017) 10 SCC 1
Author: Harsh Raj Singh, Amity University
Editor: Kanishka Vaish, Senior Editor, LexLife India.Advertisements