[1] By Aryan Sinha, BA LLB(H.) Student at Symbiosis Law School, Pune.
“a rapist not only violates the victim’s integrity but also leaves an indelible mark on her soul. It is a crime against the entire society and not just against an individual.”
Rightly said by Justice Sanjay Kumar Singh while denying bail to a rape accused in Allahabad High Court, this defines the true meaning and severity of probably one of the most heinous crimes known to mankind. Rape not only affects the body of the victim but tears her soul from within.
Under the Indian Penal Code that was passed in 1860, drafted under the chairmanship of Thomas Babington Macaulay, Section 375, defines rape as “A man is said to commit rape who has sexual intercourse with a woman against her will, without her consent or consent obtained by fraud, misrepresentation, or with a woman intoxicated, insane, a minor or when a woman is unable to communicate her consent”. This comprehensive definition of the offence of rape has stood the test of time therefore since 1860 we are still using the same definition of rape in deciding cases related to it. Although this definition extends to every female without any discrimination, an exception is mentioned with the definition of rape under section 375 i.e., exception (2) of the act that talks about marital rape. It states that “sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.” Through this essay, we will examine the reasoning for adding this exception to the IPC by Lord Macaulay. How far is this exception relevant in today’s world? We will critically examine the impacts of criminalizing “Martial Rape” and the impacts it might have on our judiciary and society.
In December 2012, after the Nirbhaya Gang Rape case, the J.S.Verma committee was constituted to recommend amendments to the Criminal Law to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. It suggested that marital rape should be recognized as a crime. But it was never recognized as a crime by the legislature. There are many reasons behind it but before looking at them we should try to understand why exception (2) was added to the IPC and in order to do it we must look at the reasoning and the principle on which this exception is based.
According to the British Jurist Sir Matthew Hale, “the husband cannot be held guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife has given up herself in this kind into her husband, which she cannot retreat”[1] The exception of marital rape is based on the Hale’s Principle. Hale did not support the concept of marital rape and he firmly believed that women could misuse this law and, file false accusations against their husbands. Many judgments and courts at that time took the support of this statement made by Hale and marital exemption was held. Hale did not mention any statute or law of any country to support his argument. It was rather held by jurists that it was no more than mere opinion[2]. Hale’s argument might sound very patriarchal in nature something that is morally and ethically wrong. Marital Rape is a very heinous crime, and it should not be justified in any way, but we should also try to look at the legal aspect of his argument. Marriage is seen as a legal contract in the modern era and Hale’s argument is based on this reasoning itself. If we look at marriage as a legal contract, then it can be said marriage itself can act as implied consent for sexual relations and it becomes a very complicated task for the court to find when and how the consent was withdrawn. The statutory definition of rape in India lays emphasis on the element of the absence of consent making it an important aspect[3].
It was submitted by the Union Government to the Delhi high court that “marital rape cannot be criminalized as it will destroy the institution of marriage in the society[4]”. The matter again comes to the factor of the burden of proof and consent. Justice C. Hari Shankar questioned the relevance of injuries on a partner during sex as he was of the view that it may not necessarily imply the absence of consent as “in the age of sexual liberation” injuries could be a sign of “passion“. Complicating the problem of the burden of proof even further. He further rejected the plea to criminalize marital rape stating that any change in the law must be carried out by the legislature since the issue requires consideration of various aspects, including social, cultural, and legal.
It was also submitted by the Union Government that before criminalizing marital rape, problems like literacy, lack of financial empowerment for females, the mindset of the society, poverty, etc. should be considered carefully. The threat that marital rape can be used as a mode of harassing husbands and in-laws is also a big issue. The conviction rate in India regarding crime against women stood at a mere 29.8% in 2020.[6] This highlights the issue of malicious prosecution that is initiated by women against their husbands and in-laws. A husband, suffering from venereal disease was prosecuted for having forced sex with his wife. The charges against him were unlawfully inflicting grievous bodily harm and assault. The conviction imposed was set aside by a Bench of 13 judges with four judges dissenting. Hale’s theory was accepted as sound and rational by the majority in the social context and healthy family relationships then prevailed in the UK.[7] Linskey J. accepted Hale’s theory of exemption for marriage and quashed the charge of rape.[8]
Rape is considered one of the most heinous crimes in India and strict punishment is given to the people who are convicted of such offenses under section 376 of the IPC but even after that India is one of the 32 countries in the world that has not yet recognized Marital Rape as a crime. As we have seen so far through this paper there are many reasons and legal complexities that prevent marital rape from being recognized as a separate crime in India. One of the biggest reasons for this is because of the presence of sections like 498A(cruelty), 304B (dowry death), 354(outraging the modesty of a woman), and the Protection of Women from Domestic Violence Act of 2005. All these legislations are there to protect women against any kind of cruelty, violence, or harassment (both mental and physical). Section 498A of the Indian Penal Code does not limit itself to mental and physical cruelty but it also extends to sexual cruelty. The supreme court while dealing with section 354 has interpreted the term ‘woman’ in the section as ‘woman’ belonging to any age[9]. Widening its scope even further. The supreme court in many of its previous judgments has upheld the existing definition of Rape upholding the validity of exception (2) under section 375 of IPC[10].
As rightly said by Justice JB Paardiwala “A wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent”. Indeed, marriage does not evade the right of the woman to have control and give consent for something related to her body. It would not be fair to say that a woman cannot be raped by her husband after marriage. But before criminalizing marital rape we must find answers to a lot of legal questions. Issues like the burden of proof, the concept of consent, the institution of family and marriage in India, the contractual nature of marriage itself, its vulnerability for been used as a weapon for malicious prosecution and if declared as a crime its implementation are few of the biggest hurdles that are preventing marital rape from been recognized as a crime in India. The judiciary and legislative shall work together to find answers to these complex questions. They must ensure that a proper legal framework is prepared so that criminalization of marital rape can be properly enforced and the purpose of empowering women in society is fulfilled. Therefore, we shall only criminalize marital rape after all these questions are answered so that we can prevent the criminalization of marital rape from being mere letters in the IPC.
[1] Martin, E. K., Taft, C. T., & Resick, P. A. (2007). A review of marital rape. Aggression and Violent Behavior, 12(3), 329-347.
[2] Brooks, R. (1989). Marital consent in rape. Criminal Law Review, 877-887.
[3] 42nd Law Commission (in the 84th Report)
[4] https://www.thehindu.com/news/national/criminalising-marital-rape-will-destabilise-marriage-govt-tells-hc/article19581512.ece
[6] Jain, B. (2022, February 2). Conviction rate for crimes against women improved to 29.8% in 2020 from 18.9% in 2016: MHA: India News – Times of India. The Times of India.
[7] R v. Clarence [(1882) 22 QBD 23, (1886-90) All.E.R Rep]
[8] R v. Miller [(1954) 2 All E.R. 529]
[9] State Of Punjab vs Major Singh on 28 April, 1966
[10] Sakshi V. UOI [(2004)]