Marital Rape in India – Issues and Way Forward

While the debate over criminalizing marital rape in India is the news of the hour, the Government of India has informed the Delhi high court that marital rape cannot be made into a criminal offence until the Government’s consultation with all stakeholders is complete. The Government’s stand not only highlights how sensitive the issue is but also its ramifications for Indian society in the long run.

Marital rape – Definition

“Marital rape” or “spousal rape” can be defined as having sexual intercourse with one’s spouse without the latter’s assent or consent forcefully. It is unwanted sexual intercourse that usually involves a man using force, the threat of force or physical violence on his wife when she does not give consent to have it. 

Types of marital rape

• Battering rape
  • In this type of rape, women have to undergo both physical and sexual violence in their marital relationship.
  • Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will.
  • It is the most common form of marital rape found in India and a majority of marital rapes fall in this category.
  • More than 45% of marital rapes in India are battering rapes.
• Force-only rape
  • This type of marital rape involves the usage of necessary force by the husband to coerce their wives into sexual intercourse.
  • These assaults are typically inflicted on spouses (wives) who have refused sexual intercourse.
  • It does not involve battering or physical violence.
• Obsessive rape/sadistic rape
  • This type of marital rape involves torture or perverse sexual acts.
  • It tends to be very violent and may result in physical injuries.

Current status

• Around 70% of women in India are victims of domestic violence.
• As per the National Crime Records Bureau’s ‘Crime in India’ 2019 report, every 16 minutes a woman is raped in India and every four minutes, she experiences cruelty at the hands of her in-laws.
• The National Family Health Survey (NFHS) 2015-16 data analysis indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
  • The report also says that 5.4 per cent of women, aged 15-49 years who were surveyed were forced to have sex against their will by their husbands at some point.
  • As per the survey, a very small percentage of women seek any kind of help for the violence they have experienced. 
  • Data suggests that only 10 per cent of married victims of sexual violence seek help.
• Marital rape is considered to be a crime in more than 100 countries all over the world including Nepal and Thailand.
• However, marital rape is not a crime in India and it is one of the only 36 countries where marital rape is still not criminalized.
• Since it is not a crime to rape a wife in India, the National Crime Records Bureau (NCRB) does not maintain any separate statistics on marital rape.
• However, the latest report of the National Family Health Survey (NFHS-5) indicates that over 24% of Indian women report facing either domestic or sexual violence; this is likely to be an underestimate, given that much of it goes unreported.

Legal provisions

• As marital rape in India is not an offence, there is no specific legal provision in India to deal with it. It is entirely dependent on the understanding of courts how they interpret the existing laws to counter this social malaise.
• Under Section 375 of the Indian Penal Code (IPC),1860 which deals with “rape”, “marital rape” is defined as an exceptional clause where it is said – “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”  The Indian judiciary has raised the age from 15 to 18. Thus, marital rape is viewed as rape only when the spouse is below the age of 18 years and it is not a crime when the wife is above this age.
• Under Section 376 of the Indian Penal Code (IPC) which has provisions for punishment for rape, it is said that those who commit crimes such as rape should be punished with not less than 7 years reaching up to 10 years or life imprisonment which may often include fine. 
  • However, if the lady raped is a man’s own particular spouse and is not under 12 years old, then he may be detained for a term which may reach out to 2 years with a fine or with both.
  • This shows that even if there is a provision for punishment for marital rape in Indian law, it is milder as compared to other rape cases.
• As per the provisions of the Protection of Women from Domestic Violence Act, 2005 (POCSO Act), marital rape is a type of domestic or local violence. Under this Act, a lady can go to court and get a legal partition from her husband for marital rape.
• However, women in India can file cases against marital rape on the grounds of cruelty or domestic violence and obtain judicial separation from their husbands (divorce).
• In 1993, it was declared that any violence against women, including marital rape, was recognized as violative of women’s Fundamental Human Rights provided to her under international laws in the U.N Declaration on Elimination of Violence Against Women (DEVAW).

Issues

• Violation of the Right to Live with Human Dignity
  • Marital rape violates the right of a woman or wife to live her life with human dignity.
  • The right to live with human dignity forms a part of the right to life (a Fundamental Right) under Article 21 in the Constitution of India.
  • The Supreme Court of India held in many cases that the offence of rape abuses the right to life and the right to live with the human dignity of the victim of the crime of rape.
  • The Supreme Court of India in the landmark case of the Chairman, Railway Board v. Chandrima Das also held that rape is not merely an offence under the Indian Penal Code, but is a crime against society as a whole.
  • In Bodhisattwa Gautam v. Subhra Chakraborty, the Court held that rape is to a lesser degree a sexual offence than a demonstration of hostility gone for corrupting and mortifying the ladies. Therefore, the marital exception principle is violative of the spouse’s entitlement to live with human dignity.
  • The Court also observed that any law which damages ladies’ entitlement to live with dignity and gives spouses appropriate right to drive the wife to have sexual intercourse without their will is along these lines unlawful.
• Violation of the Right to Sexual Privacy
  • The right to privacy is not explicitly mentioned in the Indian constitution. However, the Supreme Court has perceived that a right to privacy is intrinsically ensured under the extent of Article 21.
  • In the case of the State of Maharashtra v. Madhukar Narayan, the Supreme Court held that every woman is entitled to her sexual privacy and it is not open to any and every person to violate her privacy as and whenever one wished.
• Violation of the Right to Bodily Self- Determination
  • Every person has the right to make decisions regarding his/her body. Similarly, the decision of a woman whether to have sex or not or to give consent is amongst the most individual decisions that a lady holds for herself. It comes as a right to self-expression.
  • Therefore, the concept of marital exclusion under Section 375 of the Indian Penal Code (IPC) when it comes to rape is a kind of interference in her right to decision-making thus violating the right of freedom to express oneself (Article 19).
• Violation of the Right to Equality
  • Similarly, the differential treatment of rape and marital rape in India under Section 375 of IPC and differential punishments awarded for both under Section 376 of IPC violates the right to equality before the law (Article 14).
• Definition of consent
  • Another crucial issue that has led to delay, debates and disagreements regarding marital rape is the issue of defining the term “consent.” 
  • It is a matter of intense debate and confusion when it comes to “implied consent” and “expectation of conjugal sexual relationship” in a marriage.
  • However, the point is that the mere fact of marriage cannot presume a spouse’s everlasting consent to sexual intercourse and on the contrary, sex without consent can be defined as rape under IPC.
  • Justice J S Verma Committee set up after Nirbhaya rape case to amend and strengthen the country’s laws against sexual violence suggested in its report (2013) that marital rape should be made an offence. It said that consent formed an integral part of sexual intercourse between intimate partners and that marital or other relationship between the perpetrator or victim cannot be a valid defence against the crimes of rape or sexual violation.

Criminalizing of marital rape

• Arguments for
  • Shortcomings in existing laws
    • It is often said that the Domestic Violence Act, 2005 deals with marital rape in India and thus there is no need to criminalize it under separate law. 
    • However, the Domestic Violence Act, 2005 is considered to be a civil law by the courts and thus the accused can get away without any jail term.
    • Another problem is that while the term “sexual abuse” is mentioned, the act doesn’t explicitly define “rape” as is defined in section 375 of the IPC.
    • Thus, the current law has no provision if a woman wants to file a criminal case against her husband if she is being raped by her husband.
  • Protection of fundamental rights of women
    • The criminalization of marital rape would help protect the basic rights of women such as the right to live with human dignity, right to sexual privacy, right to bodily self-determination and right to equality.
    • The UN Committee on Elimination of Discrimination against Women had twice (in 2007 and 2014) urged India to criminalise marital rape on similar grounds. It views marital rape as a sort of discrimination against women that violates the principles of equality of rights and respect for human dignity.
• Arguments against
  • Potential misuse of the law
    • There is a high possibility of misuse of this law since it is related to a very personal and sensitive subject like sex between a married couple.
    • Records say that around 85% of dowry cases turn out to be false while a majority of cases registered under 498A are false or a mistake of fact or law or a civil dispute.
    • Given such a state of affairs, making marital rape a criminal offence would prove to be a disaster harming social harmony.
  • Burden of proof
    • The concept of burden of proof is a complex issue.
    • When marital rape would be considered a crime, there will be a burden either on the wife to prove the offence or the husband to prove himself innocent and therefore it will be very difficult to apply.
  • Threat to the institution of marriage
    • Marriage is a concept that is built around the idea of love, trust and respect. However, many argue that criminalizing marital rape will make the parties in a relationship try to be “legally careful” in the normal course of affairs fearing the occurrence of such situations or coming up of such allegations.
    • Similarly, if wives accuse husbands falsely of committing such offences this may lead to the breakdown of the institution of marriage.
  • Against privacy
    • Some argue that making marital rape a crime would allow the State to interfere in the personal affairs of individuals.
    • This will be a violation of the right to privacy inherent in the Right to life guaranteed under Article 21 in the Indian Constitution.

Way forward

Marital rape is a complex issue that needs a deep and detailed discussion. Criminalizing marital rape will not merely help. Rather there is a need for rectifying and filling the gaps in existing laws and doing away with archaic ones that tend to function against the well-being of women and the society as a whole. Public consultation and discussion with all the stakeholders may be the way forward.

Practise Question

Q. Do you think that criminalization of marital rape in India will put an end to this menace? Comment.

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