Why It Is Time To Recognise Marital Rape As A Crime?
A recent Chhattisgarh High Court decision stating that sex without the consent of the wife cannot be considered rape sparked outrage but followed the law. Here are some of the reasons why arguments against criminalising marital rape—that it will be abused and sabotage the institution of marriage—are out of date and flawed.
New Delhi: On August 2021 Chhattisgarh High Court judgement, Dilip Pandey & Ors. vS State of Chhattisgarh, observing that sexual intercourse or any sexual act by a husband with their spouse would not constitute rape even if it was forcible or against the consent of a legally wedded wife, sparked outrage and criticism.
"I hope this is appealed in the Supreme Court," Trinamool Congress MP Mahua Moitra tweeted. The "time has come for the Parliament of India to extinguish the legal shield to marital rape," said Gaurav Gogoi, a two-term Congress party MP and deputy leader of the opposition in the Lok Sabha. He went on to say that married women cannot be forced "to have a sexual relationship by their husbands."
Dilip Pandey's wife claimed that within a few days of their marriage in June 2017, he and his family began harassing her for insufficient dowry. She claimed that her husband abused her and forced her to have unnatural sexual relations with him, including inserting his finger and a radish into her private parts against her will.
When reconciliation efforts failed, the wife filed a criminal complaint against her husband, alleging rape. The trial court agreed to charge the in-laws under sections 498A (a husband or relative of a husband subjecting a woman to cruelty), 34 (acts done by several persons in furtherance of common intention), 376 (punishment for rape), and 377 (unnatural offences) of the Indian Penal Code (IPC) 1860.
Pandey and his relatives filed a petition in the Chhattisgarh High Court after the charges were filed, claiming that Indian law does not recognise marital rape. The law on rape, according to Justice N.K. Chandravanshi, excludes marital rape under an exception that reads: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
In 2017, the Supreme Court partially read down this exception (Independent Thought vs Union of India), limiting it to wives aged 18 and up. As a result, rape against a minor wife would not be exempt from criminal prosecution under the marital-rape exception.
Section 376B of the IPC, which deals with rape when the husband and wife live apart, also provides limited recognition for marital rape as an offence. The penalty for the offence is two to seven years in prison, as opposed to ten years to life in prison for rape, with the fact of marriage treated as a mitigating factor.
The Chhattisgarh High Court decision comes just days after a two-judge bench of the Kerala High Court upheld a family court's decision to allow divorce on the grounds of marital rape as physical and mental cruelty.
According to the Kerala High Court, "in a married life, sex is a reflection of the intimacy of the spouse." "The woman's evidence establishes that she was subjected to all manner of perversion against her will." Marital rape occurs when the husband believes that his wife's body owes him."
Marriage as a "Sacrament"
In light of India's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women, one of the key recommendations of the Justice Verma Committee, which was formed in 2012 to reform criminal law, was to remove the marital-rape exception.
These recommendations, however, were not included in the Criminal Law (Amendment) Bill, 2012, and thus were not included in the Criminal Law Amendment Act, 2013. Parliament chose to keep the exception, instead advocating for extra-legal solutions such as reconciliation to resolve "problems" with the assistance of family members.
According to the 167th Parliamentary Standing Committee on Home Affairs Report on the Criminal Law (Amendment) Bill, 2012, "...if a woman is aggrieved by her husband's actions, there are other means of approaching the court... Family is capable of resolving issues, and there is also a provision in the law for cruelty to women. As a result, it was felt that if marital rape is made illegal, the entire family system will be stressed, and the committee may end up doing more harm than good."
Over the years that followed, the opposition to criminalising marital rape remained strong. In response to a question from DMK MP Kanimozhi in 2015, then-minister of state for home Haribhai Partibhai Chaudhary told Parliament that marriage is a "sacrament" and that the concept of marital rape does not apply in India.
According to The Leaflet, only 36 countries in the world had not criminalised marital rape as of November 2020. One of them is India.
The Evidence For Marital Rape
Because raping a wife is not a crime, the (NCRB) does not keep separate statistics on marital rape. However, data fragments have emerged like jigsaw puzzle pieces to paint a troubling picture.
According to the NCRB, 98 percent of all rapes are committed by people known to the survivor, which presumably includes husbands.
According to a Mint newspaper investigation in 2018, 99.1 percent of all sexual assaults went unreported, and in the majority of these cases, the perpetrator was the husband. According to the study, an Indian woman is "17 times more likely than others to face sexual violence from her husband."
Domestic violence is the most common type of crime against women. Data from the most recent National Family Health Survey (NFHS) released in December 2020 revealed that more than a quarter of the women surveyed in seven states had been subjected to domestic violence; in Karnataka, 44.4 percent of women surveyed said they had been subjected to it (up from 20.6 percent five years ago), while in Bihar, the figure had dropped to 40 percent from 43.7 percent.
According to a 2013 United Nations survey conducted in six countries, including India, one in every four men admitted to raping a female partner. Another study conducted by the United Nations Population Fund and the International Centerfor Research on Women discovered that masculinity for Indian men consists of "acting tough...controlling women." According to the findings of the study, 75% of men expected their partners to agree to sex, while 50% expected their partners to seek their permission before using contraception.
The Flaws Behind The Argument Against Criminalising Marital Rape
Ayushi Agarwal, assistant professor at Jindal Global Law School, wrote in the Economic and Political Weekly in August 2021 that the opposition to criminalising marital rape is based on four arguments.
First, when women marry, they give their irrevocable consent to sexual relations with their husbands. Second, legalising marital rape will undermine the institution of marriage. Third, women will use this law to target their husbands. Fourth, alternative legal remedies are already available.
All of these arguments are based on flawed assumptions.
The assumption of irrevocable consent stems from antiquated notions of women as property/chattel of their husbands and cannot withstand scrutiny under Articles 14 and 15 of the Constitution's right to equality and non-discrimination.
In Independent Thought (a case involving minor wives), Justice Madan Lokur stated in October 2017 that the wife "cannot be treated as a commodity with no say over her body," and that she had the right to refuse sexual intercourse with her husband. In the context of adultery, Justice D Y Chandrachud ruled in Joseph Shine vs Union of India in September 2018 that "marriage—whether a sacrament or contract—does not result in the ceding of one spouse's autonomy to another."
Justice Chandrachud emphasised the court's obligation to investigate the insidious infiltration of patriarchal values within the legal order by scrutinising provisions that entrench gender discrimination based on a regressive view of women's sexual agency.
In his concurring opinion in Navtej Johar vs Union of India, Justice Rohinton Nariman held in September 2018 that there is no presumption of constitutionality attached to a pre-constitutional statute like the IPC enacted during a colonial British regime. This raises concerns about the constitutionality of the marital rape exception.
However, when it comes to the second argument, that criminalising marital rape will undermine the institution of marriage, even the courts have been cautious.
The Delhi High Court upheld the constitutionality of the remedy of restitution of conjugal rights in Harvender Kaur vs Harmander Singh Choudhry in November 1983, noting that "in the privacy of the home and married life, neither Article 21 (right to life) nor Article 14 (right to equality) have any place... the cold principles of constitutional law will have the effect of weakening the marriage bond."
In Saroj Rani vs Sudarshan Kumar Chadha, the Supreme Court agreed with this formulation in August 1984, holding that the remedy for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 "serves a social purpose as an aid to the prevention of marriage break-up." Courts can issue orders requiring married couples to live together under this section.
However, given the articulation of Justice Chandrachud'sopinion in J. K.S. Puttaswamy (Retd.) vs Union of India & Ors (2017), holding that "privacy must not be used as a cover to conceal and assert patriarchal mindsets," this reasoning does not hold water.
As a result, when it comes to protecting rights in the domestic sphere, the state cannot be prevented from intervening under the guise of "privacy." Privacy for women was framed by Justice Chandrachud as both a tool for emancipation and oppression, noting that "the challenge in this area is to enable the state to take the violation of women's dignity in the domestic sphere seriously while protecting the privacy entitlements of women grounded in the identity of gender and liberty."
The provisions in the IPC do the exact opposite of this.
While denying women protection from marital rape, they also interfere in the intimate decisions of consenting adults by invoking Section 377, which prohibits unnatural offences.
In Nimeshbhai Bharatbhai Desai vs State of Gujarat, the Gujarat High Court ruled in April 2018 that "consent is not a determining criterion in the case of unnatural offences; rather, any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under section 377 of the IPC."
While charging the husband under Section 377, the Chhattisgarh High Court in Dilip Pandey reasons that the insertion of a radish or fingers into the complainant's private parts is unlawful not because of the lack of the wife's consent, but because the act constitutes "carnal intercourse against the order of nature" when the "dominant intention of the offender is to derive unnatural sexual satisfaction (by) repeatedly inserting any object in the sex organ.
In this way, the state selectively intervenes in the private sphere to criminalise "unnatural" acts between consenting adults, to enforce cohabitation of married couples under restitution of conjugal rights, or to police who you are allowed to marry through love-jihad ordinances (see here). Its intervention, however, is guided by social morality rather than a rights-based framework that protects women's sexual autonomy.
In Joseph Shine, Justice Indu Malhotra held that regressive practises to protect the so-called sanctity of marriage (such as criminalising adultery) constitute illegitimate state interference and violate Articles 14 and 15 of the Constitution. Furthermore, in its 243rd Report on Section 498A, published in 2012, the Law Commission of India stated that "the value to be attached to the rights of women is no less than the value to be attached to the family as a unit, and vice versa."
According to Mrinal Satish, professor of law at the National Law School of India University in Bengaluru, the third argument is based on the assumption that women are habitual liars with no credibility. "If fabrication is a major concern, safeguards against fabrication should be provided rather than not criminalising marital rape," he wrote.
The issue of legal misapplication must be distinguished from the reality and pervasiveness of marital rape against women, which highlights the need for its criminalization. In the context of domestic violence, advocate Indira Jaising wrote, "When the disadvantaged use the law after centuries of exclusion from the legal system, they are charged with "misusing" the law, as there was never meant to be a law for them at all."
Finally, alternative legal remedies cited to avoid criminalising marital rape include cruelty under section 498A of the IPC and domestic violence under the Protection of Women from Domestic Violence Act (PWDVA) 2005. While the definition of domestic violence is broad enough to include sexual, emotional, and economic abuses, it prevents married women from obtaining criminal convictions for violations of their basic sexual autonomy and denies them the right to equal treatment under the law, according to Ayushi.
The Chhattisgarh High Court found no flaws in the charge under Section 498A in Dilip Pandey because the written report and statement of the wife proved that after a few days of marriage, she had been subjected to cruelty by the husband and his relatives on account of dowry demands.
However, the threshold for conviction under this section is extremely high, requiring the accused's conduct to be repeated over a period of time and likely to drive the wife to suicide or cause grave injury or danger to her life, limb, or health; or dowry harassment. In the case of Bomma Ilaiah vs. State of Andhra Pradesh (2003), the husband used to force sexual relations with his wife and insert a stick and his fingers into her vagina, causing severe pains and bleeding and rendering the victim unconscious. Despite this, he was not charged with a violation of Section 498A.
Going Forward
Currently, two private member bills to criminalise marital rape are pending in Parliament, one introduced by KanimozhiKarunanidhi in 2015 and the other by Shashi Tharoor in 2019.
The constitutionality of the exception is being challenged in the ongoing case of RIT Foundation vs Union of India before the Delhi High Court. While representing the petitioners in the case, advocate Karuna Nundy argued that marital rape has been criminalised in 52 jurisdictions and is unconstitutional because it is discriminatory against married women.
The union government, on the other hand, has continued to argue in favour of retaining the exemption in order to protect the institution of marriage.
The Chhattisgarh High Court decision is the latest reminder that the exception must be removed from our statute books as soon as possible.