Darshika Singh
ABSTRACT
Marital rape, once a hidden and taboo issue, has garnered increasing attention in recent years as societies and legal systems grapple with the complex dynamics surrounding intimate partner violence. This essay provides a comprehensive overview of the evolving landscape of marital rape jurisprudence, emphasizing the shifts in legal approaches and the persistent challenges associated with addressing this pressing concern. The essay commences by highlighting the suffering of victims of marital rape and poses a significant question as to the legality appended with this offence which compounds the existing social trauma experienced by the battered soul of the victim. Rape is a heinous offence as it directly targets the bodily autonomy of a person and leaves indelible scars on the victim's life narrative. These wounds only deepen when such gut-wrenching acts are rationalized by the mere presence of a marital relationship, perpetuating the injustice of erroneous attribution of blame to the victim. The author then highlights the legal arguments that have been put forth in support of the Marital Rape Exemption given under the Exception II of §375 of the Indian Penal Code ("IPC"), 1860 and further, counters the same. The author succinctly delineates the recent developments that have taken place in the realm of marital rape through major case laws and dedicated the ultimate portion of the essay to suggestions for legal reforms in this arena. The essay ends with a note of hope for the advancement of stricter legal and social changes concerning the issue.
“When I told them about the multiple rapes, they said, ‘he is your husband’.”
- One of the countless victims of Marital Rape (1) (emphasis is mine)
The aforementioned lines eloquently encapsulate the harrowing plight of women who have been subjected to non-consensual sexual activities within their marriage, their perpetrators shielded by the cloak of matrimony. How is it that marriage, which is called to be the union of two souls, sometimes ends up being a game of prey and predator with both the law and society joining the side of the said predator, encircling the prey, leaving nowhere but the unending abyss of despair posing the false identities of ‘legal legitimacy and ‘societal norms’ for the suffocated prey to jump into? Such is the grim consequence of labelling the heinous offence of marital rape as ‘legal’ as long as the husband and wife are not separated. (2) Marital rape has been described succinctly by J. Pardiwala as “unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.”(3)
This paradox raises another deep, unsettling question: Why does the society which vehemently condemns the heinous offence of rape grant a man the certificate to commit the same simply by virtue of being the women’s spouse? How can an act which was universally denounced just moments before marriage become acceptable post it and also succeed in obtaining legal immunity owing to Exception II of §375 of the Indian Penal Code (“Marital Rape Exemption”)?
The most probable answer to this question dates back to the 17th Century when Lord Hale wrote that "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract." (4) This argument supports the outdated notion that a wife is a man's property and also the ancient doctrine of coverture, according to which the woman's legal identity merged with that of her husband with all her legal rights and obligation being subsumed by him. (5) These opinions laid down the foundation of such an arbitrary exemption provision.
A famous British mathematician and Philosopher, Bertrand Russell has opined that “the total amount of undesired sex endured by women is probably greater than in prostitution.”(6) Around 150 countries had criminalized marital rape by the year 2019 and Poland was the first to do so in 1932. Some of the recent ones are Liberia, which removed the marital exemption in 2006;(7) Nepal in 2002 (8) and Kuwait, which criminalized violence by family members or husbands in 2020.(9) India remains one of the 32 countries where marital rape is not recognized as a criminal offence. (10) Back in 2013, the Justice Verma Committee had proposed that the said exception must be removed and that marital relationship or the like cannot be taken as a valid defence in the determination of the existence of consent or for the objective of ascertaning the sentence. (11) Unfortunately, such amendments were killed before they could have been born by giving flawed arguments ingrained in the deep-rooted societal attitudes that condone marital rape and prioritize marital privacy over individual rights.
The supporters of this exception justify its existence based on the archaic views that regard marriage as a sacrosanct institution and also try to pacify the outcries by stating that several other remedies are available for the suffering women, namely, §498A of the IPC, which defines the concept of cruelty and civil remedies under the Protection of Women from Domestic Violence Act, 2005. Also, the huge outcry by such defenders is regarding the possibility of concrete proof in such cases. They believe that it will be impossible to prove what happens within the four- walls of a married couple’s bedroom and thus, this exception should not be removed as it might be misused.
However, these arguments are spineless because of the following reasons: First, the punishment prescribed under the provision for cruelty (12) is far less than that given for rape as prescribed under §376 of the IPC and this would be an injustice as, merely because a victim is married to her violator, the pain that she suffers cannot be equated with anything less than that an unmarried victim of rape. Additionally, civil remedies like compensation given for an offence as serious as rape will be equivalent to insulting the victim and nothing less. Second, the mere fact that it would be difficult to prove a crime cannot make it an angelic or legal act. If such was the case, then the accused in cases of murder, robbery or accident who does not leave behind substantial proof must have been acquitted without a trial merely because it was difficult to prove their guilt. Third, for the latter argument, the Supreme Court has already established that the mere possibility of misuse of a provision is no ground to invalidate the legislation altogether. (13) It is the job of the lawmakers to ensure that some remedial provisions can be incorporated so that filing of false cases bears some consequences too.
The official war against the Marital Rape Exemption began in 2015 when the first petitions were filed against the same for which the Delhi High Court issued a notice to the Centre seeking its stand on the matter in 2016. The Centre, in response, filed a rather unsubstantiated affidavit rejecting the plea of the uncountable distressed women by giving baseless excuses like such a step towards criminalizing marital rape would give an easy tool in the hands of women to harass their husbands and may thus "destabilize the institution of marriage". (14)
Nevertheless, a ray of hope emerged when on 11th October, 2017, in the case of Independent Thought v. Union of India, the Apex Court opined that the age of the wife as mentioned in the Exception II of §375, which reads as “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”(15), shall be increased from 15 to 18, thus, criminalizing sexual acts by a husband towards his minor wife which will be regarded as ‘statutory rape’.(16) However, the court remained silent on the constitutionality of the provision’s core. Subsequently, on 6th November 2017, in response to the mounting pressure and public outcry, the judiciary took steps towards acknowledging marital rape as a criminal and “disgraceful offence”(17) through an order passed in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat (18). Even though the court did not specifically talk about the constitutionality of the Exception, it set the wheel of questions regarding this foundation- less and arbitrary provision in motion.
In the succeeding year, the Delhi government responded to the petitions regarding the criminalization of marital rape by NGO RIT Foundation, All India Democratic Women's Association and a marital rape victim by telling the High Court that Marital Rape is an offence which can easily come under the ambit of cruelty under §498A of the IPC and thus, there is no need for the creation of a new offence. Additionally, the government’s counsel submitted that the existing exception is not a violation of Article 21 as a woman always has the choice to not dwell with a sexually abusive spouse and can also file for divorce under all personal laws for the same.(19)
In early January 2022, the Delhi High Court began to hear the said petitions while the Centre filed an additional affidavit stating that it will be considering a more “constructive approach” towards the matter in question and has solicited inputs from various stakeholders such as the State governments and Union Territories and sought time from the High Court to state its stand.(20) However, after almost a month, the High Court ‘reserved its verdict’ and declined to extend the deadline given to the centre, citing the impracticality of adjourning an ongoing case due to the uncertainty concerning the date of presentation of the government’s already delayed stand.
While a battle of ‘justice for wives’ was being fought in Delhi, Karnataka came and joined sides with the voices that had been silenced till now and consequently, on March 23, 2023 the Karnataka High Court in the fateful case of Hrishikesha Sahoo v. State of Karnataka (21), on the ground of “regressive” nature of the Marital Rape Exemption which doesn’t conform with the equality clause of the Constitution of India rejected the petitioner- husband’s plea of dropping rape charges against him.(22) Justice M. Nagaprasanna opined quite eloquently that “[the] institution of marriage does not confer, cannot confer and should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast. If… [the act of committing rape] is punishable to a man, it should be punishable to a man albeit, the man being a husband.”(23) This decision was however challenged by the said petitioner in the Supreme Court by means of a Special Leave Petition on May 10, 2022 and unfortunately, an interim stay was passed against the High Court’s High Court's order by a 3-judge bench of the Supreme Court. However, the State of Karnataka, quite contrary to the actions of the Delhi government, filed an affidavit supporting the Karnataka High Court’s decision.(24)
Meanwhile, looking again at the ongoing war between the Delhi government and the Delhi High Court, the bench consisting of Justice Rajiv Shakdher and Justice C. Hari Shankar shot its final shot by handing down a split verdict on the abovementioned petitions in May 2022. Justice Rajiv Shakdher held this exception to be unconstitutional and specifically violative of fundamental rights enshrined under Articles 14, 15, 19(1)(a) and 21. He emphasized the distressing and bizarre reality that the existing societal norms “stigmatise the victim rather than the rapist”.(25) On the other hand, Justice C Hari Shanker countered the same by arguing that the basis of the exception is intelligible differentia(26) and also justified his stand by terming the sexual aspect between a husband and wife as the “bedrock… [on which] their marriage rests”, thus holding that the Marital Rape Exemption is legal in all regards.(27)
In the waning phase of 2022, a fresh petition was filed by a Dalit anti- caste and women’s rights activist against the Marital Rape Exemption and finally, Chief Justice D. Y. Chandrachud intervened in the ongoing war and clubbed all these petitions challenging the exception.(28) However, the matter stands ‘pending’ as of now.(29)
Most recently on 29th September, the Supreme Court, in all its glory acting again as the ‘Guardian of the Constitution’ exercised its parens patriae function as the protector of women's rights, and highlighted the right of reproductive autonomy and the right to dignity while passing a progressive judgement with regards to abortion rights of married and unmarried women and upheld marital rape to be understood as ‘rape’ as far as the Medical Termination of Pregnancy (MTP) Act, 1971 is concerned to prevent forceful pregnancy.(30)
It is evident from the instances highlighted above that the wives and the vigilant members
of the society are not ready to be considered as mere subalterns anymore and have started raising their voices against such arbitrary socio- legal rules. Thus, the war of change has been initiated and is going in full force. The recent developments represent a significant step forward in the journey towards the protection of individual rights within the institution of marriage. The recognition of marital rape as a criminal offence, the reinterpretation of outdated legal doctrines, and the acknowledgement of consent as paramount in intimate relationships all demonstrate a progressive shift in legal thinking.
India, however, still has a substantial distance to cover till it reaches its destination of criminalizing marital rape as it remains an “unfulfilled reverie”(31.) The commendable nature of these developments can be celebrated with the utmost vigour, joy and pride only when this war of marital rape victims is completely over and the victory is served on their plate. The nation is anxiously awaiting the Supreme Court’s forthcoming take on this crucial matter. However, it must be noted that positive legal changes will also lead to half- earned fruits if they are not accompanied by the changes in the people’s mindsets. Not just men, but even a myriad of women consider that non- consensual sexual relations are acceptable if they are made by the husband because such is the thought- process ingrained in their soul by the society. Complete change can only be brought about by social awareness and education regarding the need for consent, whether in marital relationships or outside it.
Some possible suggestions for the legal reforms to be made are: First, the Exception II of §375 of the IPC which exempts marital rape to be regarded as rape must be deleted.(32) Second, Marriage should not be considered a defence in rape cases.(33) Third, the sentencing policy for ‘Marital Rape’ must remain the same as that of rape as defined in §375 of the IPC. Fourth, required amendments must be made in §54 of the Evidence Act to include that the husband’s previous perverse conduct shall be treated as relevant while deciding marital rape cases and also to emphasize that consent should not be presumed merely because the accused and victim are married.(34) Fifth, §376B of the IPC shall be repealed as after the removal of §375’s Marital Rape Exception, there won’t be any need for a provision prescribing different punishment for the rape of a wife by formally or informally separated husband.(35) Additionally, the concern of men must also be addressed and such sexual offences must be made gender- neutral as cruel lust is not a trait enshrined merely in men’s brains and thus, such acts cannot be committed solely by a man on a woman.
I would like to end this essay with a quote that describes the view that shall be able to give justice to those unheard cries in the most captivating way:
“A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman ‘wife’.”
- Justice M. Nagaprasanna (36) (emphasis is mine)
(The author was placed second in the SACJ Essay Writing Competition.)
[1] Urmi Bhattacheryya, “I’m Your Husband, You Owe me Your Body”: Marital Rape Survivors on What Their Rapists Told Them”, January 26, 2022, available at https://mojostory.com/ground-reports/marital-rape-survivors/ (Last visited on September 30, 2023).
[2] Indian Penal Code, 1860, §376- B.
[3] Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2017 SCC OnLine Guj 1386, ¶3.
[4] Sir Matthew Hale. History of the Pleas of the Crown, 1 Hale PC (1736) 629.
[5] JUSTICE J. S. VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, 113 (January 23, 2013). (‘VERMA COMMITTEE’).
[6] BERTRAND RUSSEL, MARRIAGE AND MORALS 101-02 (1929).
[7] Outlook Sc's Observations 'Welcome' But Marital Rape Still Not Illegal In India, Here Are Countries Where It Is, September 30, 2022, available at https://www.outlookindia.com/national/sc-observations-welcome-but- omarital-rape-still-not-illegal-in-india-here-are-countries-where-it-is-news-226913. (Last visited on September 30, 2023).
[8] Heena Sharma, Marriage a license to rape? India's top court to hear pleas on marital rape; these countries criminalise it, March 28, 2023 https://www.wionews.com/india-news/marriage-a-license-to-rape-indias-top-court-to-hear-pleas-on-marital-rape-these-countries-criminalise-it-576588. (Last visited on September 30, 2023).
[9] Outlook, supra note 6.
[10] Id.
[11] VERMA COMMITTEE, supra note 5, 117.
[12] Indian Penal Code, 1860, §498A.
[13] Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281, ¶12.
[14] Outlook, Marital Rape in India: The History of Challenging the Exception, July 19, 2023, https://www.outlookindia.com/national/marital-rape-in-india-the-history-of-challenging-the-exception-news-304055#:~:text=In%201860%2C%20the%20IPC%20came,in%20the%20Delhi%20High%20Court. (Last visited on September 30, 2023).
[15] Indian Penal Code, 1860, §375.
[16] Independent Thought v. Union of India, (2017) 10 SCC 800, at 806.
[17] Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2017 SCC OnLine Guj 1386, ¶2.
[18] Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732.
[19] Soibam Rocky Singh, ‘Marital rape an offence under law’, January 19, 2018, https://www.thehindu.com/news/cities/Delhi/marital-rape-an-offence-under-law/article22467416.ece. (Last visited September 30, 2023).
[20] NDTV India, A Chronology of Marital Rape Exception Under Indian Law, May 11, 2022, https://www.ndtv.com/india-news/a-chronology-of-marital-rape-exception-under-indian-law-2965847. (Last visited on September 30, 2023).
[21] Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371.
[22] Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, ¶25.
[23] Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, ¶29 (per M. Nagaprasanna J.).
[24] SC Observer, Challenge to the Marital Rape Exception, https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/. (Last visited on September 30, 2023).
[25] RIT Foundation v. Union of India 2022 SCC, ¶256 (per Rajiv Shakdher J.).
[26] RIT Foundation v. Union of India 2022 SCC, ¶570 (per C. Hari Shankar J.); Nupur Thapliyal, Marital Rape, Mother's Choice In MTP Cases, POCSO Act & More: Important Rulings of Delhi High Court In 2022, December 29, 2022, https://www.livelaw.in/news-updates/important-rulings-delhi-high-court-in-2022-217679. (Last visited on September 30, 2023).
[27] RIT Foundation v. Union of India 2022 SCC, ¶547 (per C. Hari Shankar J.); Anup Semwal and Ishita Roy, How A Men’s Rights NGO Got The Delhi High Court To Hear Arguments To Keep Marital Rape Legal, March 20, 2023, https://article-14.com/post/how-a-men-s-rights-ngo-got-the-delhi-high-court-to-hear-arguments-to-keep-marital-rape-legal- 6417d5b090b6e (Last visited September 29, 2023).
[28] Ashish Tripathi, SC to form 3-judge bench to take up pleas for criminalising marital rape, July 19, 2023, https://www.deccanherald.com/india/sc-to-form-3-judge-bench-to-take-up-pleas-for-criminalising-marital-rape-1238542.html (Last visited on September 30, 2023).
[29] Hrishikesh Sahoo v. State of Karnataka and Ors., SLP(Crl) No. 4063-4064/2022 & Connected Matters (S.C.) (Pending).
[30] X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321, ¶78.
[31] Safa Navas, Marital Rape: A Hideous Countenance of India’s Criminal Justice System,. 4 (4) IJLMH PAGE 110- 118 (2021).
[32] VERMA COMMITTEE, supra note 5.
[33] Id.
[34] Raveena Rao Kallakuru & Pradyumna Soni, Criminalization of Marital Rape in India: Understanding its Constitutional , cultural and legal impact, 11 NUJS L. REV. 1 (2018).
[35] Id.
[36] Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371, ¶28 (per M. Nagaprasanna J.).