Act of rape punishable but marital relationship is different: HC

In News 

• The Delhi High Court said that while there can be no compromise with women’s right to sexual autonomy and any act of rape has to be punished.

Delhi High Court Observations

• There is a “qualitative difference” between a marital and a non-marital relationship.
  • The former entailed a legal right to expect reasonable sexual relations from the spouse and it played a part in the marital rape exemption in criminal law.
• A non-marital relation, no matter how close, and a marital relationship cannot be “parallelised”.
• Exceptions from the offence of rape granted to a married couple had remained in the legislature for several years because of the wide scope of Section 375 of the Indian Penal Code which included even a single act of “unwilling sex” as rape.
• The offence of rape was punishable with 10 years imprisonment and the issue of removal of marital rape exemption required “serious consideration”.

Kerala High Court Observations

• The Kerala High Court observed that Marital rape is a good ground to claim divorce.
  • The court said an insatiable urge for the wealth and sex of a husband had driven a woman to distress. 
    • In desperation to get a divorce, she has abandoned all her monetary claims. 

• A spouse has a choice not to suffer and the law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court.
• The framework of divorce law must be with an objective to help individuals make a decision on their own affairs. 
  • This framework must promote a platform at different levels to enable individuals to exercise free choice.

About Marital rape 

• Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
• Rape in India continues with the patriarchal outlook of considering women to be the property of men postmarriage, with no autonomy or agency over their bodies. 
  • They deny married women equal protection of the laws guaranteed by the Indian constitution.
• Today, more than 100 countries have criminalized marital rape but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized

Data Analysis

• Domestic violence in India is an entrenched problem, and it has only been exacerbated in recent years. About 70 per cent of women in India are victims of domestic violence.
• However, one of the most horrifying and repressive issues with the Indian legal regime is that marital rape is not criminalized.
• National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 reported that a woman is raped every 16 minutes and every four minutes, she experiences cruelty at the hands of her in-laws.
• National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
• According to one study by the UN Population Fund, more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex.

Legal provisions 

In India, marital rape is not defined in any statute or law.

• Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offence and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor.
  • However, according to Exception 2 to Section 375 “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape

• However, in a landmark judgment in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18

• The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.

Arguments for criminalizing Marital Rape

• A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
• The doctrine of Coverture: The marital exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms that did not recognize men and women as equals.
  • It  did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
• Article 14: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
  • Further, a married woman has the same right to control her own body as does an unmarried woman.

• Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution. 
  • Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21
  • In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
  • In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

• Rape not ground for Divorce: As marital rape is not a ground for a divorce in any personal laws and even the Special Marriage Act, 1954, It cannot be used as a ground for divorce and cruelty against the husband Thus, the women remain helpless and keep suffering in silence.

• Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.
  • A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life.

• Criminalizing marital rape: It will ensure that women remain safer from abusive spouses and they can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse  
  • Much of the developed world has criminalized it. The even United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991.

• The JS Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape

Arguments Against criminalizing Marital Rape

•  Destabilize marriage as an institution: It may create absolutely anarchy in families and destabilize the institution of marriage and thereby destroy the family platform which upholds family values and helps in sustaining the country.
  • Indian society believes that marriage is a sacrament

• Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.

• Awareness is more important: Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.

• Diversity in Cultures of the states: India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
  • Also, criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states

• Law Commission has not recommended: Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.
• No violation of Article 21: Non-criminalisation of marital rape is “not a violation” of Article 21 of the Constitution as a wife is not compelled to live with a sexually abusive husband under personal law.

• Implementation issues: Criminalizing marital rape will create serious implementational issues like
  • If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife who cannot always be trusted.
  • What evidences the courts will rely upon in such circumstances, as there can be no lasting evidence in case of sexual acts between a man and his wife

Way Forward

• It is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC. By removing this law, women will be safer from abusive spouses.
• They can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
  •  Indian women deserve to be treated equally, and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
• It is important that legal prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police officers and those in society generally.
• The need of the hour is that marriage and divorce must come under secular law and there cannot be any difficulty in having a common code of law for all communities at least for marriage and divorce.

Source: TH