India: Law On Marital Rape – A Much Needed Reform In Our Legal System
Even as we celebrate our country's 70th anniversary of independence, women in our country are still not truly free and independent, and they continue to live in a state of darkness and fear. It is, indeed, a bleak reality in India.
It is concerning that, on the one hand, the country is celebrating some glorious legal decisions from the Hon'ble Supreme Court of India, such as landmark judgments in the 'Adhaar Card Case' and 'Aadhaar Card Case,' "On the one hand, the Central Government has stated that criminalizing marital rape would 'destabilize the institution of marriage,' much to the chagrin of the general public.
According to Justice Arjit Pasayat:
"Whereas a murderer destroys the victim's physical frame, a rapist degrades and defiles the soul of a helpless female."
Despite the growing number of cases of marital rape in our country, marital rape is not defined in any statutes or laws. It should be noted that, while the term "rape" is defined in Section 375 of the Indian Penal Code, there is no definition of "marital rape" as of yet, and there is no reorganisation of marital rape under Indian law. It is disheartening that such a sensitive issue as marital rape is being dismissed by India's highest courts on the grounds that "you are espousing a personal cause rather than a public cause... This is a one-of-a-kind case."
Marital rape exists in India de facto but not de jure. While in other countries, either the legislature or the judiciary has criminalised marital rape, the judiciary in India appears to be working at cross-purposes.
Despite the fact that marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. The Hon'ble Supreme Court of India, the country's last hope for reforming the outdated approach to marital rape after Parliament hung up its boots, stated that the country is not ready to accept marital rape as a crime. It can be seen that the law makers have a different perspective and believe that marital rape cannot be used in the Indian context due to factors such as "level of education and illiteracy, poverty, social customs, and religious beliefs."
Section 375 of the Indian Penal Code (IPC), the rape provision, echoes very archaic sentiments, citing as an exception clause- "Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape."
Rape is punishable under Section 376 of the IPC. According to the section, the rapist should be punished with imprisonment of either description for a term not less than 7 years but which may extend to life or for a term extending up to 10 years, as well as a fine, unless the woman raped is his own wife and is not under 12 years of age, in which case he should be punished with imprisonment of either description for a term not less than 2 years with fine or both.
"Rape" is defined in Section 375 of the Indian Penal Code.
The following is an excerpt from the said section's operational section: 375. — Rape. A man is said to have committed "rape" if—
under any of the seven conditions described below:
First and foremost,—against her will.
Second, — Without her permission.
Third, — With her consent, when her consent has been obtained by putting her or anyone in her care in fear of death or harm.
Fourth, with her consent, when the man knows he is not her husband and her consent is given because she believes he is another man to whom she is or believes she is lawfully married.
Fifth, — With her consent when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she consents due to unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance.
Sixth, — with or without her consent, when she is under the age of eighteen
Seventh, when she is unable to express consent.
Explanation I—The term "vagina" includes the labia majora for the purposes of this section.
Explanation 2—Consent is defined as an unequivocal voluntary agreement when a woman communicates her willingness to participate in a specific sexual act through words, gestures, or any other form of verbal or nonverbal communication:
Provided, however, that a woman who does not physically resist the act of penetration shall not be regarded as consenting to the sexual activity solely on the basis of that fact.
Exception I—A medical procedure or intervention is not rape.
Exception 2—Sexual intercourse or sexual acts by a man with his own wife, if the wife is not under the age of fifteen, are not rape.
The 2013 amendment's primary goal was to make much-needed changes to the definition of rape and to improve women's access to the legal system. The changes to the Criminal Penal Code and the Evidence Act were made to ensure that women are not re-victimized when they approach the legal system following a rape. The amendments sought to eliminate unnecessary medical examinations and questions asked of women during cross-examination, as well as to facilitate better investigation and trial in rape cases. Despite the changes in the law, lawmakers and governments have taken no action to create a law against marital rape.
Even the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which India is a signatory, has stated that discrimination against women violates the principles of equality of rights and human dignity. Furthermore, at its fifty-first session, the Commission on Human Rights recommended that marital rape be criminalised in Resolution No. 1995/85 of 8-3-1995 titled "The elimination of violence against women."
Article 21 of the Indian Constitution incorporates the right to live with human dignity and is one of the most fundamental components of the right to life that perceives a person's independence. The Supreme Court has ruled in a series of cases that the crime of rape violates the victim's right to life and the right to live with dignity.
According to Justice Arjit Pasayat:
"Whereas a murderer destroys the victim's physical frame, a rapist degrades and defiles the soul of a helpless female."
Despite the growing number of cases of marital rape in our country, marital rape is not defined in any statutes or laws. It should be noted that, while the term "rape" is defined in Section 375 of the Indian Penal Code, there is no definition of "marital rape" as of yet, and there is no reorganisation of marital rape under Indian law. It is disheartening that such a sensitive issue as marital rape is being dismissed by India's highest courts on the grounds that "you are espousing a personal cause rather than a public cause... This is a one-of-a-kind case."
Marital rape exists in India de facto but not de jure. While in other countries, either the legislature or the judiciary has criminalised marital rape, the judiciary in India appears to be working at cross-purposes.
Despite the fact that marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. The Hon'ble Supreme Court of India, the country's last hope for reforming the outdated approach to marital rape after Parliament hung up its boots, stated that the country is not ready to accept marital rape as a crime. It can be seen that the law makers have a different perspective and believe that marital rape cannot be used in the Indian context due to factors such as "level of education and illiteracy, poverty, social customs, and religious beliefs."
Section 375 of the Indian Penal Code (IPC), the rape provision, echoes very archaic sentiments, citing as an exception clause- "Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape."
Rape is punishable under Section 376 of the IPC. According to the section, the rapist should be punished with imprisonment of either description for a term not less than 7 years but which may extend to life or for a term extending up to 10 years, as well as a fine, unless the woman raped is his own wife and is not under 12 years of age, in which case he should be punished with imprisonment of either description for a term not less than 2 years with fine or both.
"Rape" is defined in Section 375 of the Indian Penal Code.
The following is an excerpt from the said section's operational section: 375. — Rape. A man is said to have committed "rape" if—
under any of the seven conditions described below:
First and foremost,—against her will.
Second, — Without her permission.
Third, — With her consent, when her consent has been obtained by putting her or anyone in her care in fear of death or harm.
Fourth, with her consent, when the man knows he is not her husband and her consent is given because she believes he is another man to whom she is or believes she is lawfully married.
Fifth, — With her consent when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she consents due to unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance.
Sixth, — with or without her consent, when she is under the age of eighteen
Seventh, when she is unable to express consent.
Explanation I—The term "vagina" includes the labia majora for the purposes of this section.
Explanation 2—Consent is defined as an unequivocal voluntary agreement when a woman communicates her willingness to participate in a specific sexual act through words, gestures, or any other form of verbal or nonverbal communication:
Provided, however, that a woman who does not physically resist the act of penetration shall not be regarded as consenting to the sexual activity solely on the basis of that fact.
Exception I—A medical procedure or intervention is not rape.
Exception 2—Sexual intercourse or sexual acts by a man with his own wife, if the wife is not under the age of fifteen, are not rape.
The 2013 amendment's primary goal was to make much-needed changes to the definition of rape and to improve women's access to the legal system. The changes to the Criminal Penal Code and the Evidence Act were made to ensure that women are not re-victimized when they approach the legal system following a rape. The amendments sought to eliminate unnecessary medical examinations and questions asked of women during cross-examination, as well as to facilitate better investigation and trial in rape cases. Despite the changes in the law, lawmakers and governments have taken no action to create a law against marital rape.
Even the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which India is a signatory, has stated that discrimination against women violates the principles of equality of rights and human dignity. Furthermore, at its fifty-first session, the Commission on Human Rights recommended that marital rape be criminalised in Resolution No. 1995/85 of 8-3-1995 titled "The elimination of violence against women."
Article 21 of the Indian Constitution incorporates the right to live with human dignity and is one of the most fundamental components of the right to life that perceives a person's independence. The Supreme Court has ruled in a series of cases that the crime of rape violates the victim's right to life and the right to live with dignity.
1. Penetrates his penis to any extent into a woman's vagina, mouth, urethra, or anus, or induces her to do so with him or another person; or
2. inserts, to any extent, any object or part of the body, other than the penis, into a woman's vagina, urethra, or anus, or forces her to do so with him or any other person; or
3. manipulates any part of a woman's body in order to cause penetration into her vagina, urethra, anus, or any other part of her body, or forces her to do so with him or another person; or
4. applies his mouth to a woman's vagina, anus, or urethra, or forces her to do so with him or another person,
In Bodhisattwa Gautam v. SubhraChakraborty28, the court held that rape is a violation of the right to life enshrined in Article 21 of the Constitution and established certain guidelines for compensating rape victims.
In the landmark case of The Chairman, Railway Board v. Chandrima Das29, the Hon'ble Court held that rape is a violation of Fundamental Rights, not just a violation of an ordinary right of a person. Rape is a crime not only against the person of a woman, but also against society as a whole. It is a violation of the victims' most cherished right, namely the right to life, which includes the right to live with human dignity, as enshrined in Article 21.
That a reading of the aforementioned cases, as well as various other catena of the judgments and cases, it is abundantly clear that such an exception as "marital rape: us violative of the basic fundamental concepts on which our entire legal system is based, and such an exception damages the entitlement of women to live with dignity and encourages society to commit crime against women, which in itself is unacceptable and against the principle and corner stones of the Constitution of the United States of America."
That in the case of State of Maharashtra v. MadhkarNarayan30, the Supreme Court ruled that every woman is entitled to her sexual privacy and that no one has the right to violate her privacy whenever he wants.
The Supreme Court extended this right to privacy in working environments in the landmark case of Vishakha v. State of Rajasthan31. Along the same lines, we can translate that there is a right to privacy to engage in a sexual relationship even within the confines of a marriage.
The Kerala High Court observed in Sree Kumar vs. Pearly Karun32 that the offence under Section 376A, IPC will not be drawn in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. In this case, the spouse was subjected to sex against her will by her husband when she went to live with him for two days as part of the settlement of separation procedures between the two parties. As a result, the spouse was found not guilty of raping his wife, despite the fact that he had done so.
The judiciary appears to have completely abandoned the notion that rape within marriage is impractical or that a woman's shame of being assaulted can be erased by marrying the attacker.
The Protection of Women from Domestic Violence Act of 2005 was passed in 2005, and while it did not consider marital rape a crime, it did consider it a form of domestic violence.
33 If a woman has been subjected to marital rape, she can seek judicial separation from her husband under this Act. However, this does not completely protect the women from the crime.
The entire legal system surrounding rape is a shambles, riddled with contradictions. The following are the major legal gaps that prevent women from being empowered against marital rape:
The judicial interpretation has greatly expanded the scope of Article 21 of the Indian Constitution, and the "right to live with human dignity" now falls under the purview of this article. Marital rape clearly violates a woman's right to live with dignity, and it is argued that the exception provided under Section 375 of the Indian Penal Code, 1860 violates Article 21 of the Constitution.
The fundamental right guaranteed by Article 14 of the Constitution is that "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India."
As a result, Article 14 protects a person from discrimination by the state. However, the exception under Section 375 of the Indian Penal Code, 1860, discriminates against a wife when it comes to rape protection. As a result, it is argued that the exception provided under Section 375 of the Indian Penal Code, 1860, is not a reasonable classification and thus violates the protection guaranteed by Article 14 of the Constitution.
It is important to note that in the absence of a law, there is no data on the number of reported cases of marital rapes. It is worth noting that criminal law is on the Concurrent List and is enforced by the states. The cultures of the states are extremely diverse. As a result, in light of this, the State Government must take stringent measures in this regard. That in an era of legal reforms and revolutions, it is critical to take steps toward criminalising marital rape so that we can take a genuine step forward on the road to progress.
In a country like India, such a reform is a long way off because neither the country's lawmakers nor the Indian judicial systems are prepared to bridge the gap between marital rape and rape, both of which are heinous crimes that can leave the victim scarred for life.