“To be a spouse is not to forfeit one's right to say 'no.' Marital rape shatters the very foundation of partnership and is a crime, not a marital disagreement.”
Introduction
Marital rape occupies a complex and obscure place in the legal frameworks of numerous countries. It's a form of sexual violence, defined as non-consensual intercourse imposed by one spouse upon the other. Marital rape is often overlooked due to its historical influence and cultural norms.
Critical Analysis of the Legal, Cultural, and Constitutional Dimensions of Marital Rape
Historical influence was initially driven from British legal legacies, based on the principle of coverture, the legal doctrine stating that the rights of wives are subsumed by those of their husbands. One such law is that of Section 375 of the Indian Penal Code(IPC) , which included marital rape as an exception from its inception, as during the colonial era, wives were seen as the property of their husbands. The first-ever recorded marital rape case was that of Queen Empress v. Haree Mohan Maiti. Phulmoni Devi, an 11-year-old child married to a 35-year-old man, died of forced sexual intercourse leading to severe internal injuries. The Calcutta Court found him guilty but handed down a remarkably lenient punishment of 12 months hard labour, as the case was cited under Section 375(b) of the IPC, with marital rape being an exception. Post-independence, the Indian Constitution introduced Articles 14 and 21, which addressed the right to equality and the right to life, respectively, leading to an immediate challenge to marital rape. This gave rise to tensions between constitutional rights and traditional concepts of marriage. But women's rights and concerns went unaddressed in the light of nation-building and economic development. While the historical effect has been lasting, cultural influence is equally profound. The cultural effect focuses on the traditional concept of marriage, which is seen as a sacred institution, being the bedrock of society. The lacking aspect is that of the implied consent theory; it is presumed that marriage gives implied consent of one spouse to the other and is more inclined towards the fact of it being a product of the patriarchal societal structure. The cultural framework makes it difficult to criminalize husbands raping wives as it challenges the whole power dynamics of society. Cultural norms diminish a woman's sexual autonomy within a marriage because it is believed to be the duty of the wife to fulfill her husband's needs, including sexual pleasures.
The legal landscape surrounding marital rape is a multifaceted interplay of criminal provisions, constitutional provisions, personal laws, and the Domestic Violence Act. This leaves people vulnerable, emphasizing the need for new policies and reforms. One such contradiction is that of Section 63 of Bhartiya Nyaya Sanhita (BNS) , Exception 2- sexual intercourse or acts done by a man to his wife who is not under 18 will not be considered rape ; thus denying the wife her rights under Articles 14- right to equality, Article 15 - right against discrimination, Article 19 - right to freedom, and Article 21 - right to life and liberty. By giving the husband such power over the wife, we are denying her the right to equality and protection of laws within the territory of India, including the fact of discrimination only on the basis of her being the wife of a certain other individual, thus restricting her right to freedom and right to life by denying the wife the sexual autonomy of her own body. In accordance with Section 63, Exception 2, we are not just denying the wife her rights but giving an implied superiority to the husband over his spouse. The Hindu Marriage Act, a codified law relating to marriages in Hindus, wherein Section 13(1)(ia) of the Hindu Marriage Act talks about the grounds for divorce, including cruelty as a ground. While the section does not explicitly define what cruelty is, it was ruled in Savitri Pandey v. Prem Chandra Pandey that cruelty may be mental or physical . Coming to the Protection of Women from Domestic Violence Act, Section 3 defines what is considered domestic violence, wherein sexual abuse is mentioned. A woman cannot file a complaint under Section 63 of BNS, but she can approach a magistrate under PWDA seeking protection or monetary help. Although there is a civil remedy, there are no criminal implications till now. Our laws condemn rape, with severe penalties under BNS Sections 64 to 75. This includes rigorous imprisonment, even life sentences or the death penalty, for rape - Section 64 and aggravated forms like rape of minors -Section 65, gang rape - Section 70, and cases causing death or a persistent vegetative state - Section 66. It also addresses sexual intercourse by deceitful means - Section 69, sexual harassment Section 74 , assault with intent to outrage modesty - Section 73, or to disrobe - Section 75, and includes provisions for repeat offenders - Section 71 and protecting victim identity - Section 72. However, a significant point of contention remains Section 63's marital rape exception, which exempts husbands from criminal liability for non-consensual sexual acts with their wives above 18years .This loophole recently led to a Chhattisgarh High Court acquittal of a man accused of causing his wife's death through brutal sex, citing husband's legal immunity. This starkly emphasizes how our justice system fails to safeguard women from sexual violence in the most intimate relationships, urgently needing a reform.
The global legal position on marital rape is vastly divided, with some still adhering to the traditional perspective of marriage while other nations criminalize the same, reflecting different cultural and social perspectives on the rights of wives status in a matrimonial relationship. Several developed countries have taken a strong step against marital rape. They've created strict laws. The United States of America is a great example where all 50 states have made marital rape a crime, treating it just like any other form of sexual assault. They require explicit consent for all sexual activity, no matter what. It wasn't always like that. The last state to make marital rape a crime was North Carolina, and that was only in 1993. So, even in progressive places, it took time to shake off old ideas about marital consent. The United Kingdom is another example. They made marital rape a crime in 1991, saying, 'Marriage doesn't mean you've given blanket consent for sex.' Canada was even earlier, criminalizing marital rape way back in 1983. They recognized that if sex is non-consensual, it's a sexual assault. Australia followed suit in the 80s, creating laws that treat marital rape just like any other sexual assault.
On the contrary, in many countries, legal systems still allow for or do not explicitly criminalize marital rape. India offers a particularly complex example of this. While forced sexual intercourse is considered a serious crime against an unmarried woman, it is not explicitly recognized as such within a marriage. At the more extreme end of this spectrum is Saudi Arabia, where marital rape is not legally recognized as a crime. Based on the country's interpretation of Islamic law, a husband is legally permitted to have sexual intercourse with his wife without her consent. (This interpretation is not Islamic rather it’s the country’s interpretation of Shariah )
The concept of marital rape has been a subject of extensive debate and judicial scrutiny. While India still retains legal immunity for husbands for rape within a marriage, there has been significant evolution in judicial thought, including various precedents and commissions. The Indian Penal Code, Section 375, Exception 2, stated that sexual intercourse without the consent of the wife within a marriage would not be considered rape unless the wife was under the age of 15, which was later increased to 18. This law was wholly and solely based on the doctrine of coverture, implicating the wife as the property of the husband. For a long time, the Law Commission of India, in its 42nd (1971) and 172nd (2000) reports, was hesitant to criminalize marital rape, as it would be seen as too much interference in the whole institution of marriage. The 2012 Delhi gang rape case sparked widespread outrage, leading to the formation of the Justice J.S. Verma Committee to review and strengthen India's rape laws. Chaired by former Chief Justice J.S. Verma, the committee submitted a comprehensive 630-page report with key recommendations. Notably, it advocated for the removal of the marital rape exception, emphasizing that a marital relationship shouldn't be a valid defence against sexual assault charges. The committee also suggested stricter punishments for rape, including up to 20 years imprisonment for rape and murder, and life imprisonment for gang rape. Although the Criminal Law (Amendment) Act of 2013 incorporated some recommendations, such as expanding the definition of rape and increasing penalties, it regrettably overlooked the crucial suggestion to criminalize marital rape. A big step came in 2017 with the Supreme Court's Independent Thought case. This ruling didn't criminalize marital rape for adult women, but it was huge for wives between 15 and 18 years old. The Court said that sex with a minor wife, even if married, is rape. This was a clear win for the rights of young girls, showing that their consent can't be assumed just because they're married. High Courts across India have offered a mix of progressive and traditional views. In a notable 2022 ruling, the Karnataka High Court took a strong stance, finding a husband guilty of raping his wife. The court declared that no legal exception should allow a crime against society, calling the marital rape exception an "inequality that destroys the soul of the Constitution." This brave decision is now before the Supreme Court. The Delhi High Court in 2022 had a split decision on the issue. One judge, Justice Rajiv Shakdher, called the exception unconstitutional, stressing that non-consensual sex in marriage violates a woman's bodily autonomy. However, Justice C. Hari Shankar upheld the exception, arguing that marriage implies an expectation of sexual relations. This split verdict has sent the matter to the Supreme Court for a final decision.
The discussion around criminalizing marital rape in India is incredibly complex, touching upon deeply rooted societal norms, individual rights, and the practicalities of legal enforcement. It's not simply about granting women "all the rights" or suggesting they are inherently suffering; rather, it's about addressing a significant inconsistency within our legal framework and a pervasive issue that many women face.
It's understandable to worry that criminalizing marital rape might unfairly target husbands or disrupt families – a rape accusation carries huge weight. But saying consent in marriage is "blurry" doesn't mean it doesn't exist. Instead, it means we desperately need a strong, sensitive system to find the truth in these delicate situations, ensuring real justice without unfairly blaming anyone.
At the end, a crucial question emerges: How do we prove consent in the intimate space of a marriage, in a way our country can truly trust? This is not an uncharted path. We don't have to navigate this alone. Our very Constitution is shaped by influences like the UK's, and our nation wouldn't be the first to criminalize marital rape. Countries like the UK , Canada, the US , and Australia have already taken this vital step. They've learned to define consent clearly, even within marriage, and developed processes to investigate and prosecute these cases. We have the opportunity to learn from their journeys, adapting their lessons to build a legal framework that truly safeguards every individual's bodily autonomy, even within the walls of their own home.
Conclusion
At its core, the push to criminalize marital rape is about rectifying an archaic legal relic: the doctrine of coverture. The fact that amending this law might make legal processes more complex should not be a deterrent. Justice, after all, should not be a matter of convenience or luck but a fundamental right available to all, regardless of the complexities involved in securing it. The urgency lies in aligning our laws with constitutional principles of equality and dignity, ensuring that no act of sexual violence, even within the boundaries of marriage, goes unrecognized and unpunished.