Overview: MARITAL RAPE AND ITS EXISTENCE IN INDIA

Profile of the Author: Rishika Jain, a 2nd-year student pursuing law from Amity University, Rajasthan who has a great inclination towards criminal law.

Introduction

Domestic violence has emerged as the leading offence against women. As per the Thomson Reuters establishment, India is the riskiest nation for women. In 2013, the National Crime Records Bureau (NCRB) declared more than 118,000 instances of domestic violence, which accounted for a third of all offences against women, way ahead of offences like molestation (70,739) and rape (33,707). [i] Sexual violence, including rape, falls within the ambit of domestic violence, however, rape by husband in marital relationships is a grey area in India, so it is difficult to assess the numbers accurately. As indicated by NCRB, 98% of all rapes include offenders acquainted with survivors. [ii] These offenders usually comprise of companions, associates, partners and family members but not husbands. The confidence that men are qualified for sex even without a partner’s assent is a good incentive for the crime. Most of these men met with no legal consequences.

Legal Status of Marital Rape in India

The argument that adducing evidence in marital rape is arduous is acceptable as married couples frequently indulge in intercourse, thus, making it difficult to prove that on one occasion it was non-consensual. Distinct factors affect women’s choices regarding sexual intercourse in the modern social environment. Desire is frequently misunderstood as consent among high school girls who settle for sex for various reasons other than sexual want as their characters have not yet fully developed. [iv] It is accepted in India that the husband is not liable for the offence of rape due to the assent that is inherent in the contract of marriage. Marital rape is only considered rape if the spouses are below 18 years of age [v] and the seriousness of punishment is not as stringent as the offence of rape. There is no legal protection provided to the wife after the age of 18, thus, violating basic human rights.

According to the Indian Penal Code, the cases where the husband can be criminally prosecuted for an offence of marital rape are as follows:

1. It is punishable with imprisonment up to 2 years or fine or both when the wife is between 12 to 18 years of age; [vi]
2. The offence is punishable with imprisonment not less than 7 years which may extend to life or for a term upto 10 years and shall also be liable for a fine when the wife is below 12 years of age.
3. Rape of a judicially separated wife, the offence punishable is with imprisonment upto 2 years and fine; [vii]
4. The rape of a wife above 18 years of age is not punishable.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence. Section 5(n) of The Protection of Children from Sexual Offences (POCSO) Act penalizes the rape of a child by anyone related to the child through marriage.

Right to Sexual Privacy

The right to privacy has been recognised as a fundamental right under Article 21 of the Constitution. [viii] The exemption of marital rape violates a married woman’s right to privacy by forcing her to enter into a sexual relationship against her wishes. The Supreme Court in State of Maharashtra v. Madhkar Narayan [ix] held that ‘every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased’.

The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Section 375. [x] The Joint Committee that worked on this suggestion recommended the exclusion of the same. The Committee asserted that the husband couldn’t be liable for the rape of his wife of any age. It was based on the fact that sexual intercourse is an integral part of marriage.

For a long time, marital rape was not an offence in England. Nevertheless, with changing times, the House of Lords accepted that marital rape is a harsh reality of society and struck down the exception in R. v. R. [xi], even before Parliament enacted a suitable law punishing marital rape.

Conclusion

Society finds premarital sexual intercourse unacceptable while it helps establish the connection between the partners as the absence of this generally causes conjugal pressure. The individuals are forced to have kids without their opinion or consent over the matter. The offence of rape requires stringent laws in India even today. [xii] It is difficult to produce evidence of marital rape when consent cannot be proved. This argument is disturbing and appalling. It is not easy to adduce evidence in any rape as the survivor and offender are already familiar with each other. There will always be evidential difficulties, but this should not stop reform in the law and prevent convictions where the evidence is apparent. The classification based on marriage is unacceptable and offensive to women’s right to privacy, dignity and choice.

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FAQs

Q1. Does any international convention deliberate on marital rape?

A1. The UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended in 2013 that India should criminalize marital rape. However, it was just a suggestion.

References

[i] Namita Bhandare, ‘Behind closed doors: Marital rape in India’ (Livemint 25 May 2015, 2:50 AM) <https://www.livemint.com/Politics/b6HcnmMqYadNzWAP05FbEO/Behind-closed-doors-Marital-rape-in-India.html> accessed in 2020.

[ii] Ibid.

[iii] Supra Note 1.

[iv] Michelle Oberman, ‘Turning Girls into Women: Re-Evaluating Modern Statutory Rape Law’, 85 J. Crim. L. & Criminology 15, 18-19 (1994), <http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf> accessed in 2020.

[v] Indian Penal Code 1860, Sec 375 (d) Exception Sixth, No. 45, Acts of Parliament (1860).

[vi] Indian Penal Code 1860, Section 376 (1), No. 45, Acts of Parliament (1860).

[vii] Indian Penal Code 1860, Section 376 A, No. 45, Acts of Parliament (1860).

[viii] Justice K. S. Puttaswamy (Retd.) v. Union of India and Ors, (2017) 10 SCC 1.

[ix] AIR 1991 SC 207.

[x] Law Commission of India, 42nd Report, 1977, Penal Code, 1860, para 16.115, p. 277.

[xi] [1992] 1 A.C. 599: [1991] 2 WLR 1065: (1991) 2 All ER 257.

[xii] Jed Rubenfeld, ‘The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy’, 122 Yale L.J. 1372, 1392 (2013).