Marital Rape: Does Marriage Erodes Sexual Autonomy?
“It is time that we all see gender as a spectrum instead of two sets of opposing ideals.”
⁃ Emma Watson
Marital rape refers to the act of sexual intercourse with one’s spouse without or against the spouse’s consent.
The concept of Marital rape is based on the traditional, patriarchal, and outdated “Doctrine of Coverture”1 which believes that post marriage, the identities of husband and wife merge, and women are no longer entitled to have an independent legal entity.
International Recognition:
World Health Organisation (WHO) defines Sexual violence as:
Any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.
Thus, this definition covers in its ambit marital rape as it specifically mentions “regardless of the relationship”.
Marital rape is currently criminalised in all 50 states of United States of America.
In United Kingdom where the common law developed, Marital rape is recognised as an offence. In the landmark judgement of R v R, a husband defended the ‘conviction for attempted rape’ on the ground that marriage gave irrevocable consent, therefore a husband cannot rape his wife. The House of Lords refuting this contention stated that for a person to be penalised for rape the relationship between parties is immaterial. It was held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to sexual intercourse.
In South Asia, our neighour Nepal has set an example by criminalsing Marital Rape.
Presently, Marital rape has been criminalised in over 150 countries.
Provisions in Indian Law:
Section 375 of the Indian Penal Code criminalizes Rape and includes all forms of sexual assault involving non-consensual intercourse with a woman.
However, Exception 2 of the same section forms the basis of the non-criminalization of Marital Rape in India.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.2
Thus, a woman is considered to provide an “implied consent” in perpetuity to enter into a sexual relationship with her husband post marriage.
Arguments in favour of criminalizing Marital Rape:
- It is violative of Article 14 which provides the right to equality including gender equality. Further, the classification on the basis of marriage is not based on any intelligible differentia but on outdated patriarchal ideology.
- It is violative of Article 21 of the constitution which provides for the Right to life and personal liberty. It is the fundamental right of everyone in this country assured under Article 21 to live with human dignity, free from exploitation.3
- Various committees like J S Verma Committee (formed Post Delhi Gang Rape case) have recommended criminalizing Marital rape.
- Various International Conventions like the United Nations Declaration on the Elimination of Violence against Women have recommended criminalizing marital rape. Globally, 150 countries have already criminalised this heinous crime.
Arguments against Criminalising Marital Rape:
- Criminalising marital rape would be an attack to the holy sacrament of marriage
- Women can misuse the defence of marital rape with every disagreement they face with their husband
- Courts have no right to interfere in the personal relationship between husband and wife
Marital rape and Article 21:
In Maneka Gandhi v. Union of India4, The Supreme Court gave a new dimension to Art. 21. The Court held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity.
Further, the apex Court in Francis Coralie v. Union Territory of Delhi5 observed that the right to live includes the right to live with human dignity and all that goes along with it.
Thus, being subjected to sexual violence even in a marital relationship is a direct attack on dignity of the women and thus, against the Fundamental Rights enshrined in our constitution.
Marital rape and Right to Privacy:
In Justice K S Puttaswamy (Retd) vs Union of India6, the Honourable Supreme Court of India unanimously upheld the Right to privacy as an important and intrinsic part of Article 21 that is Right to Life and Personal Liberty.
Further in State of Maharashtra vs Madhakar Narayan7, the apex court observed that every women has right to sexual privacy. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.
Thus, Marital rape is also a direct attack on the privacy of the women.
Judicial Pronouncements:
In the landmark judgement of Independent Thought v. UOI8, the apex court by interpreting the provisions under the Juvenile Justice Act, The Prohibition of Child Marriage Act, The POCSO, and the IPC using the principles of harmonious and purposive construction read down the exception 2 of Section 375 holding that the marital rape exemption should only cover cases where the woman is 18 years or older. The apex court further observed that Exception 2 to Section 375 of the IPC is a “jarring note in (the) scheme of pro-child legislations…”.
In Joseph Shine v. UOI9, the apex court observed that a woman is not a “chattel” or property of men, and every woman, regardless of marital status, possesses the inalienable right of sexual autonomy. It further opined that sexual autonomy is an inviolable core of human dignity.
Recently, the Kerala HC held that Marital rape is a valid ground for divorce as it falls under cruelty. Further, the Karnataka HC observed, “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’.”
However, along with criminalsing marital rape, there is a need to provide adequate safeguards to avoid false and frivolous accusations and prosecution.
Suggested Safeguards to curb Misuse:
- Police should be allowed to conduct “preliminary enquiry” before lodging an FIR as allowed by the Honourable apex court in matrimonial cases in Lalita Kumari v. State of Uttar Pradesh10.
- In every district, a family welfare committee may be constituted to which all the complaints received by the police and the magistrate must be referred and no arrest should be made prior to the report of such a committee. The committee should submit its report within 10 days from the receipt of the case.
- The committee should comprise retired officers/social workers/ paralegal volunteers who must be trained to deal with such issues.
Conclusion:
It can be concluded that marriage is a “sacrament” and “union of souls”, but not a license to rape. Marriage as an institution is not so weak to get affected by criminalsing marital rape. It is the duty of both the husband and the wife to respect each other’s rights, especially the right to privacy.
As observed by the apex court in Chairman, Railway Board & Others v Chandrima Das & Others11, rape is not only a crime against the victim individual but it is also a crime against the society at large.
This is a high time that legislature explicitly criminalizes Marital rape by making a requisite amendment to Section 375 which makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband.
Footnote:
1. [1991] UKHL 12
2. The Indian Penal Code, 1860 (Act 45 of 1860), s.375 exception 2.
3. Bandhua Mukti Morcha vs Union Of India 1984 SCR (2) 67
4. 1978 AIR 597 1978 SCR (2) 621 197
5. 1981 AIR 746, 1981 SCR (2) 516
6. (2017) 10 SCC 1
7. AIR 1991 SC 207
8. (2017) 10 SCC 800
9. AIR 2018 SC 4898
10. Lalita Kumari v. Govt. of UP AIR 2012 SC 1515.
11. (2000) 2 SCC 465
Author: Akinchan Aggarwal,
Department of Laws, Panjab University - 3rd year
