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The impunity of marital rape

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As per Exception 2 to Section 375 (“the Exception”), Indian Penal Code, 1860 (“IPC”), any man who indulges in sexual activity with his own wife (the wife not being under eighteen years of age) will not be constituted as an offence of rape. This article gives an insight about the history of marriage and marital rape. It talks about the world wide status of marital rape. It further contains various case laws on marital rape along with the case of RIT Foundation v. Union of India & Ors. which is sub-judice before the Hon’ble Delhi High Court.

Introduction

The act of non-consensual sexual intercourse is abhorrent and violates the basic right of woman that is the Right to life and personal liberty which is guaranteed by the Article 21 of the Constitution. When a woman is forced to have sexual intercourse it is not merely a physical injury but the deep sense of some deathless shame. It also causes deep psychological, physical, and emotional trauma, thereby disregarding the very soul of the victim. It also violates the woman’s right to dignity and bodily integrity, sexual autonomy, bodily and decisional privacy, and the equality and equal status of all human beings. A rape is a rape and a rapist remains a rapist and no classification can change this reality. Thus, the Exception is egregious in as much as much as it denies a wife the ability to prosecute the husband for the act of rape whereas if the same act were done by any other male she would be entitled to do so.

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Section 375 of the IPC was amended in 2013 by the Criminal Law Amendment Act, 2013 which raises the age of consent of a woman for sexual activity to 18 years. On 10th August 2017, a writ petition was filed by an NGO, Independent Thought, before the Hon’ble Supreme Court of India before bench of Justice Deepak Gupta and Justice Madan B. Lokur. The petition challenged the constitutional validity of the Exception to the extent it does not criminalise the sexual intercourse by a husband upon his wife the wife being 15 to 18 years of age. The NGO also questioned and argued the classification between unmarried and married minor girls. It also highlighted that it is in violation of the rights of minor child, violating Article 14, 21 of the Indian Constitution, the provisions of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO’) and International Conventions. This case is discussed in detail in the article below. At present, there are only fifty-two countries which have recognised marital rape as a criminal offence. However, in India marital rape is not recognised as a crime. The justification given for non-recognition is that women were considered as chattel to their husbands and a husband cannot rape a wife. As he is the master to the wife and have rights to enjoy the privileges over her body. Hence, law did not give an independent personality to a married woman. However, with the revolutions, these clarifications were not accepted in the society. The feminist revolution is one such revolution which brought the concept of equality amongst men and women.

The decriminalisation of an act by a husband, when that act would otherwise constitute rape under the IPC is based on the belief that the very act of institution of the marriage contemplated consent by the wife for sexual intercourse with the husband for all the times to come. The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife has given herself up in this kind unto her husband which she cannot retract.

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At present, marital rape has not been criminalised under law but a specific form is criminalised under Section 376B of the IPC. The section is explained as –

Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.” Therefore, sexual intercourse without consent will constitute an offence when wife and husband are living separately due to judicial separation or otherwise. So, this section indicates that consent is not presumed here since the husband and wife are not living together. While living together provides presumption that wife has given the consent to involve in sexual activity with the husband.

The impunity of marital rape

In the year 2016, an affidavit was filed and the Central Government stated that if marital rape is criminalised then it would “destabilise the institution of marriage and become a tool for harassment of husbands”.

Constitution and Marital rape

The exception to Section 375 is violative of Articles 14 and 21 of the Indian Constitution. The provision of Section 375 allows women to complain against rape offenders. However, the exception creates a difference between married and other women. So, it violates their right of equality and privacy.

The Hon’ble Supreme Court in the case State of West Bengal v. Anwar Ali Sarkar, emphasised that under Article 14, the classification should be based on intelligible differentia. Such difference should be rational and having nexus with the object to be achieved. However, when we talk about the exception which is excluding married women from getting the protection under Section 375, it is not based on intelligible differentia but differentiates on the basis of marital status of the woman. Classification based on marital status creates an anomalous situation giving women lesser protection against non-consensual sexual intercourse by their own husbands as against strangers. The classification based on marital status cannot justify retention of the Exception.

Under Article 21 of the Constitution, the right to life is not mere animal existence” but it includes the right to live with dignity and also includes the right to privacy. In the landmark case titled “Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., it was held that the right to make sexual decisions is included in right to privacy. This right does not eliminate the married women above fifteen years of age from its purview.

Criminalisation of Marital Rape in other countries

Australia was the first common law country to criminalise marital rape in the year 1976. Two years before that there were several other Scandinavian countries passing laws on criminalisation of spousal rape. The countries were- Norway, Sweden, Denmark and former Soviet Union. In 1932, Poland was the first to make a law on criminalisation.

Also Read: Sexual Harassment Matters

Since then many countries have criminalised- Ireland, Canada, the United States, New Zealand, Ghana, Malaysia and South Africa. Several nations- Germany, France, Netherland, Belgium and Luxembourg also called for the criminalisation in the year 1986 due to the Europeans Parliament’s resolution on violence against women. In 1991, UK struck down the common law principle. This principle said that a marriage contract gives implied consent of a woman for sexual activity. It is stated that “Marital rape is a serious and frequently occurring form of domestic violence”. In Ghana, spousal rape became a crime around the year 2017 under Section 42(g) of Ghana’s criminal code. The explanation was that sexual abuse namely forceful engagement whether married or not is humiliating and degrading and also violates another person’s sexual integrity.

In the year 2002, Nepal struck down the exception as the Hon’ble Court held that it is against the constitutional rights- the equal protection and right to privacy of women. The Court said that the classification is based on unmarried girl and married women. If it is an offence against unmarried girl then why not against married women. Hence, it should be struck down not being a reasonable classification.

But these arguments will not have bearing on the present case before the Delhi High Court (RIT Foundation v. Union of India & Ors.) as these countries have criminalised marital rape based on legal position of their own country. Same way, India has its own sets of precedents, principles and constitution so the issue has to be decided on the basis of the legal position of our own country.

International decisions in favour of striking down Exception 2 to Section 375, IPC, 1860

  1. In United Kingdom- R v. Regina, [1992] 1 AC 599, which has been followed and approved by the European Court of Human Rights in the case of CR v. United Kingdom, (1995) 21 EHRR 363.
  2. In United States of America (Court of Appeals of New York) – People v. Liberta (1984) 64 N.Y. 2d 152.
  3. In Philippines- People of the Philippines v. Edgar Jumawan [G.R. No. 187495 of 21.04.2014].
  4. In Nepal – Forum for Women, Law & Development v. His Majesty’s Government of Nepal & Ors. [Writ No. 55 of 2001 (2058 BS)]; Jit Kumari & Ors. v. Prime Minister and office of council of ministers & Ors. [Writ No. 064-0035 of 2008 (2063 BS)].

Countries where Marital Rape is not criminalised

Almost 32 countries have not criminalised marital rape and most of them are developing nations. Some of them are- China, Pakistan, Bangladesh, Laos, Afghanistan. In Afghanistan, the Article 132(4) of the Shia Personal Status Law states – “It is the duty of the wife to defer to her husband’s inclination for sexual enjoyment and the man is expected not to postpone sexual intercourse with his wife for more than four months.”. The laws made in China do not protect same-sex couples or victims from marital rape.

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Cases on Marital Rape

Independent Thought v. Union of India

As per Section 375 (sixthly) if a woman is under 18 years of age, then sexual intercourse with her with or without her consent is rape. However, the Exception provides that sexual intercourse done by a man upon his own wife, the wife being not below the age of 15 years is not rape. In other words, if a man commits sexual intercourse upon his own wife above the age of 15 years is not rape.

Therefore, it can be seen that Section 375 provides for 3 different circumstances relating to rape:

  1. The sexual intercourse done by a man upon a girl, the girl being below the age of 18 will constitute the offence of rape.
  2. The sexual intercourse done by a man upon his wife, the wife being between the age of 15-18 years is not rape, irrespective of her consent.
  3. The sexual intercourse done by a man upon a girl above the age of 18 years if the case falls in any category of seven descriptions provided in Section 375.

Thus, it can be concluded from the above three cases that the husband of a girl child between the age of 15-18 years is having full liberty and freedom to have sexual intercourse with her without even having the consent of his wife.

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Thus, a very important question which came to the limelight was whether the act of sexual intercourse done by a man upon his wife between the age of 15-18 years is rape or not? This question came before the Hon’ble Supreme Court in the case of Independent thought v. Union of India, 2017.

Laws inconsistent with POCSO Act

The court held that in the above scenario the law is in clear conflict with the POCSO Act. Section 42 of the POCSO Act states that when an offence is punishable under both POCSO and IPC, the accused is punished under the Act which provides for more stricter punishment. This was against the normal criminal jurisprudence but was still done to protect the interest of the children.

Another important Section is Section 42-A which states that POCSO Act is not above any law but it is in addition to any other law. Also, the second part of the same Section states that if there is any inconsistency between any two legislations the POCSO Act will have an overriding effect on the other Act.

Since under POCSO Act child means any child below the age of 18 years, this created an inconsistency between the Exception and the provisions of POCSO Act which punishes any sort of sexual assault, harassment and intercourse with any child below the age of 18 years.

Thus, the Supreme Court held that the POCSO Act will prevail over IPC and Exception 2 to Section 375 in so far as it relates to girl child below the age of 18 years.

Has the court created a new offence?

It is a well settled principle that creating a new offence is under the domain of the legislator and it cannot be done by a court of law. However, there is no doubt in the fact that the court by striking Exception 2 to Section 375 in so far as it relates to girl child below the age of 18 years, no new offence has been created. The offence was already there in Section 375 as well as under Section 3 and 5 of POCSO Act. The court has only read down Exception 2 to Section 375 to bring it in harmony with the POCSO Act and the Indian Constitution. 

Held

Thus, the court held that the Exception 2 to Section 375 in so far as it relates to girl child below the age of 18 years is unreasonable, unjust, unfair and arbitrary (violative of Article 14 and 21) so it should be read down to bring within the four corners of law and to make it in consonance with the POCSO Act and the Indian Constitution. Therefore, now the Exception 2 to Section 375 reads as follow:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

Nimeshbhai Bharatbhai Desai v. State Of Gujarat

The question which came before the Hon’ble Gujarat High Court was that whether a husband forcing his wife to indulge with her in oral sex would amount to rape under Section 375 or not?

Also Read: Redefining Sexual Assault

The court was of the view that since the wife was above the age of 18 years the husband is protected by the Exception 2 to Section 375 which makes it no offence for a husband to have sexual intercourse with his own wife, the wife not being below the age of 18 years. The court observed that marital rape has not been punished in India as it may destabilize the institution of marriage. A wife may use it as a tool to harass the husband by filing false complaints against him. But still there are some safeguards available to the wives in these regards such as she can file complaint under cruelty under 498A IPC, 1860.

R v. Regina

In the case of R vs Regina, 1991, R had been convicted for raping his wife. He pleaded that since he was married to the victim lawfully it is not possible for him to rape her as the wife has given irrevocable consent to her for sexual intercourse through the contract of marriage.

The House of Lords in England rejected the pleading and held that the exception of marital rape does not exists in England and thus, it is a crime for a husband to rape his wife. Thus, the accused was convicted accordingly. In the case of State of Karnataka v. Krishnappa, the court held that the sexual violence apart from being a dehumanizing act is an unlawful intrusion of the privacy and the sanctity of the women. The court also stated that non-consensual intercourse women. The court also stated that non-consensual intercourse amounts to physical and sexual violence.

In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court held that the right to make choice of sexual activity is guaranteed within the personal liberty, privacy, dignity, and integrity under the Article 21 of the constitution.

In the case of Justice KS Puttaswamy (Retd.) v. Union of India, the Supreme court recognized the right to privacy as a fundamental right of all citizens and considered that the right to privacy encompasses “vital privacy, reflected in the ability to make intimate choices, mainly of sexual or reproductive nature and choices intimate relationships”.

RIT Foundation v. Union of India & Ors., W.P. (Criminal) No. 284/2015 (Sub-judice before the Delhi High Court )

Petitions have been filed by two NGOs- All India Democratic Women’s Association and RIT Foundation challenging the Exception. In the year 2017, a woman aged 27 years, alleged that she was raped by her husband. The ongoing case RIT Foundation v. Union of India, is in the debate. The section exempts non-consensual sexual activity between a husband and a wife from the charges of the offence of rape. The counsel for Delhi Government, Nandita Rao argued that the Exception does not violated the woman’s right to bodily integrity or her right to say no. As per her submissions, if the couple is married then a complaint can be registered under Section 377 (Unnatural offences), Section 498A(cruelty to woman by her husband or in laws), Section 326 (Grievous hurt) of the IPC. Regarding the submission Justice C Hari Shankar stated that, “the thrust and rationale is that relationships cannot put the same offense on a different pedestal. The woman remains a woman.

Advocate Karuna Nundy has made her rebuttal submissions to criminalise marital rape before the Hon’ble bench of Justice C Hari Shankar and Justice Rajiv Shakdher. The arguments are that the objective of laws on rape are to make sure that women are not raped. But the exception to this section nullifies this objective. This exception is granting immunity to the husbands and thus the exception should be struck down. But Justice C Hari Shankar questioned that if this exception is struck down, would it not amount to creation of a new offence? In this regard the Supreme Court has said “that court cannot create a new offence because courts does not have the machinery of legislature”. Also, if western countries have criminalised, it does not mean that India should also do it blindly. The rebuttal given was that striking down of the exception will not create a new offence but will only create a new class of offenders.

The arguments continue that the right of a married woman to say not o sexual intercourse with her husband, violates her right to freedom of sexual expression and behaviour under Article 19(1)(a)of the Constitution. Another argument posed was that the right to consent is being given to sexual workers in a judgement so why married women does not have the right to consent.

It has been argued that the Constitutional Courts have a duty to strike down legislations that violate fundamental rights. Article 13 read with Article 226 empowers the High court to strike down the laws that are inconsistent with or in derogation of fundamental rights. This has been consistently interpreted as casting a positive obligation on constitutional courts to declare such laws as unconstitutional.

It has also been argued that striking down the Exception will not amount to creation of a new offence due to the following reasons:

  1. It will merely remove an exemption that has been created by way of legislative fiction, which it funds discriminatory and unconstitutional. The ‘acts’ that will become punishable as rape after removal are already punishable as other offences under the IPC and no new behaviour is being criminalised.
  2. Courts have previously expanded the application of existing offences by revoking exemptions granted to a class or by removing differences in sentences for different classes.
  3. There will be no violation of Article 20(1) as striking down operate prospectively. 

Also Read: The First Virtual “Gang Rape”?

Conclusion

The debate of marital rape to criminalise or not is still continued in other countries including India. Some countries have criminalised marital rape while others have not. The arguments posed from both sides seems to be valid. On one hand, if a woman is raped by her husband, she cannot complain under Section 375 which violates her rights guaranteed by the Constitution. The women are being differentiated on the basis their marital status. On the other hand, if marital rape is criminalised in India, chances of false complaints increases. It will be difficult for the Courts to determine the truth as it is a private matter and within the four walls of the bedroom. Same false complaints can be seen under the Domestic Violence Act, 2005 as well. These false complaints can be harmful for the husband or the person who himself is the victim of false complaint. Recently, the Minister of Women and Child Development Smriti Irani while answering a question posed by CPI Member of Parliament Binoy Viswam regarding inclusion of ‘marital rape’ as an offence under IPC, 1860 stated “that process for comprehensive amendments to criminal law in consultation with all the stakeholders has been initiated by the government”.

Consent is an essential ingredient whether it’s a man or a woman and non-consensual activities are detrimental to a woman. Consent deemed to be implied can be incorrect even in the institution of marriage. The Delhi High Court is currently in process of hearing the final arguments. There are various legal complexities as well as social and emotional impact. Now, since we are heading towards a gender neutral society, the existence of patriarchal society should come to an end where a woman is considered to be her husband‘s property, and they do not have an identity of their own. Therefore, it is rightly said that law should change with the changing needs of the society, time has arrived that these legal provisions should be amended.

The Karnataka High Court is the first one to criminalise rape in marriage, time will tell whether the same is legally tenable or not.


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