Marital Rape in India: issues / challenges & Way forward

Need to legalize Marital Sex:

• The omission of MRE is violative of constitutional guarantees of equality to women and India’s obligations under the Convention on Elimination of All forms of Discrimination Against Women (CEDAW).
  • The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) states that the definition of violence against women shall include marital rape.

• The non-recognition of marital rape contributes to the invisibilization of thetrauma and the mental, physical, sexual, and reproductive health implications experienced by the survivorThe 4^th National Family Health Survey (NFHS)- 2015-16 revealed that prevalence of Intimate Partner Violence (IPV) against women ranges between 3% to 43% in different states.

• The 5th round of the survey NFHS 5 (2019-20) had suggested that 1 in 3 women in India aged 18-49 have experience spousal violence and 83% have stated their current husband as perpetrator.
• 5.6% of married women were physically forced to have sexual intercourse with their husbands, and 3.7% were forced to perform sexual activities against their will.
• Married women are 17 times more likely to face sexual violence from their husbands rather than from the outsiders.
• It has been criminalized in 150 countries, but in India it only applies to wives aged 12 and 18 years under the Indian Penal Code (IPC).

What is Marital Rape?

• The term refers to non-consensual intercourse by a man with his wife, obtained by force, threat of force or abuse, physical and psychological violence, or when she is unable to give consent.
• Section 375 of the IPC makes it punishable for a man to have sex with a woman if it is against her will or without her consent.
• It covers all forms of penetration (anal, vaginal, or oral) perpetrated against the woman.

What is Marital Rape Exception (MRE)?

• The sexual acts or intercourse by a man with his wife without her consent is not considered rape.
• The proposition reflected in Exception 2 to Section 375 of the IPC is referred to as the marital rape exception (MRE).
• The law is based on the archaic patriarchal notion that a woman is the property of her husband, and through marriage, a woman gives irrevocable consent for life.
• This puts women in a vulnerable position within a marriage, leaving scope for an abusive spouse to force sex on his wife through intimidation, threat, force, and other forms of abuse.
• The sexual autonomy of women is compromised.

.Legal provisions:

Article 21 of the Constitution:

• My body, my right is an integral part of the right to personal liberty for every woman.
• Marital rape is a serious infringement violates a wife’s Right to life, dignity and bodily privacy.

Indian Penal Code (IPC) 1860:

• Section 319, 320, 321, 322: Causing bodily pain, disease or infirmity to any person is said to cause hurt.
• Section 339: wrongful restraint
• Section 349: A person is said to use force if he causes motion, change of motion, or cessation of motion to that other.
• Section 351: Any gesture or preparation that uses criminal force to that person, is said to commit an assault.
• Section 375: A man is said to commit rape by sexual intercourse with a woman under different circumstances
• Section 498A: Criminal remedies for the victim

Significant Judgements:

Hrishikesh Sahoo v. State of Karnataka (2022):

• The Karnataka High court declined to quash the charge of rape framed under Section 376 of IPC against a man accused of raping and keeping his wife as a sex slave.
• The MRE was an unequal provision and marital status should not be an excuse in cases of the sexual assault.

Dimesh Desai v. State of Gujarat (2018):

• The Gujarat High court held that the MRE did not make the offence rape, but held that a woman could prosecute her husband for unnatural offences (Section 377).

Independent thought vs. union of India (2017):

• It criminalizes unwilling sexual contact with a wife between 15-18 years of age.
• Right to abstain from sexual intercourse is a question of personal liberty under Article 21.
• Exception 2 created an artificial distinction between a married girl and an unmarried girl.
• This arbitrary classification between minor girls on the basis of their marital status violates Article 14.

Justice K.S. Puttuswamy v. Union of India, (2017):

• The Supreme court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
• Privacy included the right to make choices for oneself, autonomy over integrity (reproductive rights), and personal and intimate relations.

State of Karnataka v. Krishnappa case (2004):

• The Supreme Court (SC) has held that sexual violence is a dehumanizing act and unlawful intrusion of the right to privacy and sanctity of a female.
• It also said that non-consensual sexual intercourse amounts to physical and sexual violence.

Suchita Srivastava v. Chandigarh Administration:

• The right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity fall under article 21.

Debate over Marital rape:

Arguments to criminalize MRE:

• Every woman subject to rape should be able to file a criminal case, regardless of the identity of the perpetrator.
• There is viable intelligible differentia between a married couple and two people who are not married.
• Consent is an agreement to participate in a sexual activity and shall be given freely, without pressure, manipulation or under the influence of alcohol.
• Asking for consent is important as it respects the personal boundaries of the partner.
• Without consent, sexual activity must be considered as sexual assault or rape.
• Preservation of the institution of marriage has been used in the past to turn a blind eye to violations of women’s rights in the private sphere.

Arguments in favour of MRE:

• Marriage is a unique relationship that may justify differential treatment, carrying with it a legitimate expectation of sex.
• Sex between husband and wife is sacred and immune from interference by allegations of rape, especially as denial of sex without reason could amount to cruelty under family law.
• This would adversely affect the institution of marriage if husband is considered as the wife’s rapist.
• The test for whether there is intelligible differentia with the object sought to be achieved would be an unreasonable classification.
• It is an obligation of the judiciary to preserve the marriage and to make all efforts to save the matrimonial bond.
• While some argue that there can be flaws against criminalizing marital rape.
• It is arbitrary and thus violative of Article 14, which guarantees equality before the law and equal protection of the law.

Conclusion:

In the absence of a law that protects women against marital rape, women who are forced into having non-consensual sex with their husbands are left with no means of legal remedy or relief. The law reforms must be spearheaded by the legislature to address issues like penalties for marital rape. In the absence of legislative intervention, courts must step in to propose interventions against MRE.