By Advocate Salini T S
Section 375 of the Indian Penal Code (IPC) defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.” But it is interesting the same IPC exempts every legally married man to have forceful sexual encounters with his wife with absolute impunity, provided the wife is above fifteen years of age.
Forceful sexual intercourse or any other sexual act in one instance is a punishable criminal offence and in the other case, it is because Martial Rape comes under Exception 2 to of IPC Section 375.
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape needs to be considered a serious form of domestic violence and sexual abuse.
Not making marital rape a crime is violation of Article 14 of the Indian Constitution that guarantees equality to all. Article 14 of the Indian Constitution ensures that “(The) State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” But it is sad, Indian criminal law discriminates against unfortunate women who have been repeatedly raped by their own husbands. “Under the Indian law, a woman, whether she likes it or not, grants perpetual consent for cohabitation to her husband. In other words, Marriage gives a husband license to engage in sexual acts with his wife at his wills and wish.”
Do we need to presume, the body of a married women is private and personal property of her husband and the her right, her autonomy over her own body cease to exist, just for the simple reason that she is wedded to another human, a man. Does she need to surrender her physical body to the man till the wedlock is valid legally?
The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
According to Exception 2 of Section 375 unwilling sexual intercourse with ones wife, provided the wife over fifteen years of age, is not a criminal act. The definition of “rape” under IPC section 375 immunizes the husband from legal prosecution for sexual encounters without consent.
As per the existing law of the country, after entering into marital relations the lady is presumed to grant perpetual consent to her husband for sexual intercourse.
The concept of marital rape in India is the epitome of what we call an “implied consent” for rape from the husband. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise.
As of now, Marital Rape is a prosecutable criminal offence in more than 100 countries, but unfortunately, India is one of the 36 countries where marital rape is still not criminalized.
Even though many legal amendments have been brought in criminal law for the protection of the women, the non-criminalization of marital rape in India undermines the dignity and human rights of women.
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.
With this, Indian women sink into further uncertainty. Under section 375 of the Indian Penal Code (IPC), forced intercourse in marriages is considered to be a crime only if the wife is below the age of 15.
At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity. Rather, she was considered to be the chattel of her husband. As a result, she did not possess many of the rights now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity. Exception 2, which essentially exempts actions perpetrated by husbands against their wives from being considered acts of “rape,” is largely influenced by and derived from this already existing doctrine of merging the woman’s identity with that of her husband.
When a man, other than husband, whether father, son, brother, uncle, any relatives, friends, colleagues or any stranger sexually abuses, rapes a woman, it’s a crime to be tried under IPC Section 376 of IPC. But her husband can commit the same crime with impunity and the perpetrator cannot be booked under rape charges.
This kind of exemptions and exceptions in our legal system have to be taken out, if we are serious enough in reducing the degree of agony, pain and soreness she experience every day, every minute. As compared to the other states, Kerala can be considered a Model State in countering cases of Marital Rape. However there are many factors that dissuade women from not to reveal the same in public and ask advocates to find out other reasons for divorce such as cruelty.
I always wonder why the educated, employed women feel petrified to approach the court on sexual atrocities from their husbands. As an advocate dealing with legal issues relating to crime against women, I have experienced reluctance from wives to sue their husbands who sexually abuse and torture them with little mercy. They are hesitant to communicate on such crimes committed to them even to their parents, and the continuous horrendous sexual persecution will finally make them mentally ill. The girls between the ages of 20-30 often come to us seeking legal remedy, but in the petition they do not wish to narrate anything relating to marital rape. Instead, they ask us to include charges like domestic violence or cruelty. Of course in certain cases we layers sometimes succeed in educating the lady clients and make them sue the perpetrators.
Recently The Honorable High Court of Kerala have made a decisive observation that Marital rape can be treated as a strong ground for divorce and husband is not the owner of wife’s body. These significant observations were from Hon. Justice A Muhmed Mushtaq and Hon. Justice Kousar Edappakathu while considering an appeal from a husband against the order of Family Court. These observations are bound to make far reaching effect in legally dealing with Marital rape cases.
Majority of the offenders in marital rape are from upper middle class and having high social, economic status. They seldom physically assault the spouses. They don’t abuse or even shout at their wives and always present the face of well-mannered gentlemen in public.
The wife of such a gentleman once told me in private, while explaining her miseries. “Madam, how can I reveal my maladies to anyone? My husband is a perfect gentleman to all others, except me. He behaves as a good brother in law, a loving son in law and a caring friend. To whom should I share my sordid saga? Who will believe his cruelty to me? On what ground I can approach court? Even if I approach the court for divorce, I will be cornered forever and the society will accuse me and try to depict me as a bad character. What should I do?” This is not any one-off story. Many wives have similar experiences, but they don’t dare to protest.
Multiple Commissions for Women and Human Right Commission generally will not entertain such matters. The compromises the women are compelled to make in their life are too terrible. As Bertrant Russal said, “sometimes Prostitutes having better sexual experience than a victim of Marital Rape.” In most of Marital Rape cases, the culprit husband gets absolved, and the victim wife left in the lurch, thanks to the existing legal system.
Marital Rape is not only savagery against wives but a grave infringement of a person’s basic ideals to life and individual freedom. Sexual intercourse with spouse can’t be and should not be treated the husband’s privilege, given to him by a social ceremony by the name and style called marriage. Marriage does not be taken as a license to commit sexual crimes on the spouse that could inflict physical and mental trauma on her.
Feminists and women’s rights groups have long demanded criminalising of marital rape. Unlike domestic violence, and rape, marital rape is not publicly debated, may be because India is still a patriarchal society.
Courts continue to differ in their views on Marital Rape. In 2018, the Hon. High Court of Gujarat had ruled that non-consensual intercourse by a husband with his wife did not amount to rape. The same year, the Delhi High Court observed that both men and women had the right to say “no” to sexual intercourse and marriage did not mean perpetual consent for the husband (for sexual brutality).
In 2021, Hon High Court of Chhattisghar ruled that sexual intercourse by a man with his wife is not rape- even if it is by force or against her wish.
Recently The Kerala High Court noted, “Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, and any disrespect or violation of bodily integrity is a violation of individual autonomy.”
Section 375, the provision of rape in the Indian Penal Code (IPC), mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” As per section 376 of IPC, which provides punishment for rape, the rapist ought to be rebuffed with detainment of either portrayal for a term which might not be under 7 years but rather which may stretch out to life or for a term reaching out up to 10 years and should likewise be at risk to fine unless the wife raped is his own particular spouse, and is not under 12 years old, in which case, he might be rebuffed with detainment of either depiction for a term which may reach out to 2 years with fine or with both. Hence marital rape is viewed as a rape just if the spouse is under 15 years old, and the seriousness of punishment is milder. There is no lawful security agreed to the spouse after the age of 15, which is against the prevailing Human Right standards accepted globally.
The cases wherein the spouse can be criminally arraigned for an offense of marital rape are:
1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment up to 2 years or fine, or both;
2. When the spouse is underneath 12 years old, offense culpable with detainment of either portrayal for a term which might not be under 7 years but rather which may reach out to life or for a term stretching out up to 10 years and should likewise be subject to fine;
3. Rape of a judicially isolated spouse, offense culpable with detainment up to 2 years and fine;
4. Rape of wife of above 15 years in age is not punishable.
In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which considers marital rape as a type of local violence. Under this Act, a wife can go to the court and get legal separation from her husband for marital rape. Marital rape needs to be treated as a punishable offence. Women cannot surrender her human rights to her husband the moment her marriage is solemnized or legally registered. The laws to secure and protect the interests of the victims of marital rape are to be enacted with urgency and enforced to save the hapless wives who are hapless victims of such “licensed” sexual brutality. It is unfortunate; under the existing laws of the land a wife can ensure her entitlement to life and freedom, but not her body within the wedlock. The very definition of rape under section 375 of IPC needs to be changed. The prime legal route for women so far is section 498-A of the IPC, to counter “unreasonable sexual direct by the spouse”.
Even after Right to Privacy became a Fundamental Right under Article 21, there is no scope for Right to live with Human Dignity or Right to Sexual Privacy or Right to bodily self determination to a wife?
However, we can foster a ray of hope in dealing with Marital Rape. Hon Supreme Court of India had about four years ago referred to Hon Justice J.S. Verma committee’s recommendation to make marital rape a crime, quoting from decisions of courts across the world that “a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist.”
*The author is practicing at Thiruvanathapuram Courts: She can be contacted @+919495959156