By Dr Swati Jindal Garg
“It doesn’t matter how rich or poor a person is, what gender or social class, or how much fame or education she possesses. Verbal, mental, and physical abuse can happen to anyone. It doesn’t matter what a woman’s ethnicity is because the only distinguishing color of abuse is black-and-blue.”
—La Toya Jackson, an American singer
Domestic violence is an inherent part of the lives of most women in India. As per a National Crime Records Bureau report—Crime in India—about 70 percent of women in India are victims of domestic violence. One of the biggest forms of this is marital rape.
Even though the power to say “no” has been given to Indian women in matters of consensual sex, yet as per Exception 2 of Section 375—sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years—is not rape. It decriminalises marital rape in India.
This is an unpleasant surprise as marital rape has been impeached in more than 100 countries and despite various leaps and bounds that Indian society has made in the past decade or so, especially after the 13th Criminal Law Amendment Act, 2013, the non-criminalisation of marital rape in India undermines the dignity and human rights of women.
The impunity provided to the husband under law from the offence of marital rape stems from Exception 2 of Section 375 on the grounds that there is an “implied consent” between a husband and a wife after marriage. This implies that both have consented to sexual intercourse and it cannot be otherwise. In other words, it is presumed that a wife delivers perpetual consent to have sex with her husband after marrying him.
This marital exception, however, was drafted on the basis of Victorian norms that were mainly patriarchal and hence, did not recognise men and women as equal to each other. Such a concept in today’s world is totally archaic and outdated. It is not only violative of Article 14 of the Indian Constitution, but also makes possible the victimisation of married women for no reason other than their marital status while protecting unmarried women from the same acts.
Time and again it has been held by Indian courts that consent is the essence of every sexual act and if it is missing, then the said act cannot be held to be legal and would be termed as rape. Exception 2 to Section 375, however, defeats the very purpose of the Section as, while on the one hand, it was drafted to protect women and punish those who engage in the abhorrent act of rape, it gives a free ticket to all husbands who indulge in non-consensual sex with their wives merely based on the fact that they are married to them.
As per the International Men and Gender Equality Survey 2011, one in five men has forced his wife or partner to have sex. While over 100 countries have criminalised marital rape, India, Saudi Arabia, Pakistan and China have not. Even though the Indian law makes consent a mandatory part of sex, yet it fails to recognise the fact that a woman cannot be said to give perpetual implied consent on the mere pretext that she is married and the perpetrator is her husband. In other words, Indian law fails to understand that consent and respect are reciprocal. If you respect a woman, you must take her consent, and if you have taken her consent, you must respect her.
Indian courts have refused to decide whether marital rape is an offence or not. Ignoring the elephant in the room will not make it go away. It will have to be faced some day and the day is drawing near. Even though feminists and women’s rights groups have long demanded criminalising marital rape, unlike domestic violence, it is yet to be a part of mainstream discourse. It is discussed in hushed tones and soon forgotten.
With the landmark judgment in R vs R case 30 years ago, the UK determined that it was a crime for a husband to rape his wife. In that case, the husband argued that marriage provided irrevocable consent. However, the court refused to accept this and convicted him as the exception to marital rape is a “legal fiction under the common law”. The court observed that for a person to be penalised for rape, the relationship between parties is immaterial.
But in India, this remains a grey area. Multiple petitions have been filed across various courts in the country to criminalise marital rape. Unfortunately, none of them have reaped any benefits yet. A 2015 petition filed by a woman was dismissed by the Supreme Court, citing that “law shall not change for one woman”.
In Arnesh Kumar vs State of Bihar, the apex court held that criminalising marital rape will be the “collapse of the social and family systems”. And in a surprising order, the Chhattisgarh High Court recently discharged a 37-year-old man in a rape case filed against him by his wife. While hearing a criminal revision plea filed by the man facing trial for raping his wife, Justice NK Chandravanshi discharged him of the charge of rape (Section 376), but upheld charges under Sections 377 (unnatural offences), 498A (husband or relative of husband of a woman subjecting her to cruelty), and 34 (acts done by several persons in furtherance of common intention).
On the other hand, earlier this month, the Kerala High Court ruled that marital rape, though not recognised under the penal code, could still be considered grounds for divorce as a form of cruelty. It said: “Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.”
In 2018, the Gujarat High Court ruled that non-consensual intercourse by a husband would not be dubbed rape, though subjecting his married partner to have oral or unnatural sex was akin to cruelty. That year, the Delhi High Court observed that both man and woman had a right to say “no” to physical relations and that marriage did not mean that “the woman is all time ready, willing and consenting…the man will have to prove that she was a consenting party”.
Psychologists D Finkelhor and K Yllo rightly said: “When a stranger does it, he doesn’t know me, I don’t know him. He’s not doing it to me as a person, personally. With your husband, it becomes personal. You say, this man knows me. He knows my feelings. He knows me intimately and then to do this to me—it’s such a personal abuse.”
No one could have put this better and the reality when looked at from this perspective becomes even more shocking and stark. The fact that marital rape is perfectly legal in India is one of the most horrifying and repressive issues. In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government criminalise marital rape. The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the same.
Despite the intent of the people at large and various committees, rape laws in our country continue to be what they are—patriarchal and archaic, considering women to be the property of men post marriage, with no right or agency over their own bodies. Lawmakers have, for all intents and purposes, made marriage a license for a husband to forcibly rape his wife with impunity. Even though the apex court extended the age limit in Section 375 from 15 years to 18 years in a PIL filed in 2017, this is but a small step to the beginning of a long journey. The legislature should bring marital rape within the purview of rape laws by eliminating Section 375 Exception 2 of the IPC.
Even though most countries recognise that rape is rape, be it marital or otherwise, why is it that despite being a burgeoning superpower, India continues to be one of the 36 countries that does not criminalise marital rape? One of the biggest reasons for this is that it is contended that women often falsely accuse their husbands here. The same excuse was used even when various violence laws were enacted to protect women in India, including the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC, which criminalises physical and mental cruelty against a woman by her husband or his family.
Even though there has never been any direct empirical evidence for the misuse claim except the low rate of convictions in dowry and cruelty cases, what we do know is that two out of every five women in India are victims of physical, sexual or emotional domestic violence. Choosing the number of convictions as the parameter to gauge the reality of the situation is also problematic because low conviction rates in India are often because of poor investigations, improperly collected or no evidence and omissions of witness statements. It is not because women are out to get men.
When we have a scenario where disadvantaged women don’t use even those laws which are in their favour, what to speak of those that don’t exist, together with lack of resources and access to proper legal help, the argument that they are abusing the law against men is surely a far-fetched one.
In a PIL filed in 2018, the Delhi High Court retorted to people who said that there is no such thing as marital rape. A bench headed by J. Gita Mittal said: “A rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s a rape? … Force is not a precondition for rape.”
Marital rape cannot be allowed to exist as implied consent for the parties involved and marriage in no way can imply perpetual consent for a woman. A “no” is a no. It does not matter if your wife says it or somebody else and men and the Indian legal system need to stop at that.
—The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi