To Be Raped Or Not To Be Raped

The Indian legal system is marred with the burden of the Great Indian tussle between the aged Indian Judiciary and the Indian Legislation. It is this tussle that has led to judgments like the Independent Thought v Union of India to arise to clarify the law on family-related matters like child marriage, and more specifically child marital rape.

In the wider ambit of this discourse lies the question of marital rape in particular and marriage as an institution in general. In India, marital rape was ignored to be included as an offense first during the 1600s, traced to statements made by Sir Matthew Hale, Chief Justice in England. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

Since then, almost all countries, with notable exceptions such as Pakistan, Syria, Iraq, Saudi Arabia, have criminalized marital rape. However, the Indian jurisprudence has lagged behind.

Marriage as a sacrament and the idea of consent

The rationale behind the making of any law allows it to be judged on its meritorious stance in the present day context. The Indian family laws, especially the laws related to offences of a domestic nature attempt to borrow from the generic societal ethos and customs. But, it can be observed that certain offences happen to suit more to the ethos and customs of a particular community, and in the Indian context, it is the Hindu community. In the Hindu religion, unlike the Muslim religion (Abdul Nadir v Salima Mahmood), marriage is not a civil contract but a sacrament. This means that the bond of marriage is sacred and one of non-interference. In a sacrament, the idea of consent does not arise and hence, withdrawal of consent is not a question. It is only recently that marriage is being seen as both a sacrament and a civil contract. Due to this archaic understanding of marriage where the husband and wife are tied in holy matrimony, wherein the wife is supposed to wholly give herself to the husband and her husband’s every need, the wife’s consent is irrelevant. A marital relation has been seen as one in which the woman is the man’s property and it is up to the man what upkeep he prefers to keep her in. Moreover, the traditional notion of marriage spits on the idea of equality and instead upholds the notion that a man’s sexual needs and demands are superior to a woman’s physical, mental, reproductive health. To remark in a pithy statement, even a bleeding or a woman with a child inside her cannot deny her husband sex. So, in case the husband drunkenly is filled with lust for his heavily pregnant wife, and in the process causes her to miscarry she can claim for lesser offences like criminal negligence but there is no remedy in the Indian legal system against her broken body, her broken heart, and her broken spirit.

It is in this spirit that non-criminalization of marital rape continues.

In Satyawati Sharma v. The Union of India it was observed: “legislation which might be quite reasonable and rational at the time of its enactment may with the lapse of time and/ or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality.”

Keeping this in mind, it can be observed that over time the notion of marriage and the extent to which state interference is welcome in the ‘sacred’ institution of marriage has changed. The notion of the institution of marriage was earlier manifested in practices like the tradition of Sati, wherein it was believed that a woman did not exist separately and apart from the existence of her husband. In today’s times, with the continuation of non-criminalization of marital rape, the idea of a woman as the property of her husband, whose consent, despite being of a contractual and voting age, is rendered as irrelevant and inconsequential is still kept alive. However, this is where the law runs into troubled waters. While non-criminalization of rape is somehow protecting the institution of marriage as claimed to be so by the state and interference will meddle with marital affairs, there has been the criminalization of offences of lesser degrees throughout our legal history.

Under the IPC, a husband can be liable for any sexual offence except rape; for instance, he is liable under Section 354 of the IPC. There is no rational nexus as to why there is a lack of uniformity in the notion of marriage and the reasonable level of interference in the sanctity of marital affairs. If it is argued that rape is an offence of a higher degree in terms of punishment and severity of the act, such an argument is of no meritorious consequence, as the term of punishment of a crime does not distinguish it from other crimes. An offence does not become more “interfering” because it is more “serious” in nature due to its term of punishment. Rather, an offence of a higher degree should be urgently criminalized, especially if a similar offence of a lesser degree has already been constituted as a crime. Under the IPC, cruelty, and molestation are few examples, which are offences without any exception for husbands. They are also serious offences, which will disturb the so-called harmony in the marital relation in that particular case alone.

Moreover, the Domestic Violence Act of 2005 which although is largely a civil act also has the provision of leaving it up to the judicial magistrate to initiate proceedings under the IPC. The Domestic Violence Act further ‘debilitates’ the traditional notion of marriage and the idea of the spouses being one financial unit by introducing the idea of monetary compensations for acts done by the husband against the wife during the course of the marital relation. Furthermore, the Act also defines domestic violence to include sexual abuse. As defined in the Act, sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. There is no Humanitarian Agency or Court in the world, which would argue contrary to the opinion that rape disturbs the victim’s mental equilibrium, degrades and violates her dignity and abuses her body. Hence, rape can easily be read into the ambit of sexual abuse under the Domestic Violence Act, 2005. If marital rape can be understood to be part of the domestic diaspora and yet be punishable then legislation in IPC is not a farfetched proposition.

Violation of Article 14, 15 and 19

Section 375 of IPC has an exception which states that: sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. This exception, by the virtue of the judgment in Independent Thought v. The Union of India was struck down as being unconstitutional. After the judgment, there is an unreasonable differentiation that has been created on the basis of the age of the married woman and between a married and an unmarried woman. By the mere virtue of her being above the age of 18 or married does not destroy her right to bodily integrity, self-respect and right to decline to engage in sexual intercourse, which by the lack of mention of marital rape is being statutorily denied. When a woman enters into the union of marriage, herself is not consumed by the consummation of her marriage to another. A marriage should not disable her sense of ownership over herself and self-esteem within herself. Rape, under section 375 of IPC defines it in strictly medical terms as the penetration by the man, either by the penis or an object manipulated by him. According to the judgment in C.R. v UK and Eisentadt v. Baird, it is clear that “rape remains rape whether it is defined as ‘penetration’ or ‘aggravated sexual assault’ (as in the POSCO Act, 2012); it cannot be legislatively wished away as non-existent” merely on a technicality.

Rather, the severity of the heinous crime is not in the act but in the effect it leaves on the victim. Unlike murder, which destroys just the bodily integrity of the victim, rape violates bodily integrity, destroys her spirit, causes trauma and mental distress, and sometimes affects her reproductive health and choice by causing unwanted pregnancies. Rape intrudes in the psychological, physical, sexual and economic well being of a victim. Notably, in Bodhisattwa Gautam v. Subhra Chakraborty, this argument was even further extended. The judgment held that “Rape destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.” About a month later, the severity of rape was again echoed in State of Punjab v Gurmit Singh “A rapist degrades the very soul of the helpless female.” In State of Haryana v. Janak Singh, it was held that “Rape dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India.”

Article 21 of the Constitution of India states that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. The very act of rape is of such an intrusive nature that non-consensual sex in itself deprives a woman of her personal liberty. By imposing non-consensual sex upon another, it deprives her of choice over physical, sexual and mental union with a man. In the light of the recent judgment upholding Right to Privacy as a Fundamental Right, it can be argued that rape interferes with the privacy of a woman and hence, also violates her Right to Privacy. The judgment in State of Karnataka v. Krishnappa upheld that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the Right to Privacy and sanctity of a female”. Hence, the lack of criminalization of marital rape interferes with the enjoyment of the Right to Privacy of a woman and hence, inhibits her Right to Life or Personal Liberty and restricts her from fully exercising her rights. The Constitution no where mention, nor is there any interpretation of the Constitution which states that married women cannot fully enjoy their Right to Life or Personal Liberty, nor does any reading of the recent judgment in KS Puttaswamy v Union of India state that married women are not to fully enjoy their Right to Privacy. Hence, this unreasonable restriction, in turn, violates Article 14 and Article 15, the latter on the grounds of sex, as an absence of appropriate legislation which takes into consideration issues which prevent her from full enjoyment of life similarly to male citizens does not allow her to fully enjoy her rights and creates an artificial distinction, which does not guarantee her equal protection before the law. The failure of the law to recognize an issue that riddles married women results in its lack of protection of married women in the same way it does unmarried women and married girl children.

Moreover, the state is not achieving the aim of protecting 10-14% of married women who are raped by their husbands. It has created an artificial classification between married and unmarried women and married women below the age of 18 and above the age of 18. This unreasonable classification allows for the violation of the rights of married women, which is unacceptable in a democratic state where the people’s rights matter the most.

The well being of the state depends on the well being of its citizens, and due to lack of criminalization of marital rape, about 25% of rape cases go unprosecuted and the perpetrators are left in the society to potentially rape other women. Rape is not just a crime against a woman, it is a crime against society and by protecting a rapist, and the state is harming the general well being of the society. The lack of legislation on marital rape also violates Article 15 (3) of the Constitution, which states that nothing contained in this Article shall prevent the State from legislating for the welfare of women and children. Protection of a rapist due to his relations with the victim negatively affects the welfare of women.

It cannot be insinuated that absence of legislation absolves the state of any moral or legal responsibility towards its victims. Rather, no law is the law itself. The lack of recognition in the form of appropriate legislation gives state sanction to the acts, which are committed due to an absence of relevant legislation prohibiting these acts. Hence, in this discourse, we can argue on the basis of the test of reasonableness of a law as propounded in the case of Maneka Gandhi v. UOI. In this judgment, it was held that a law, which is not “right, just and fair”, is arbitrary. “The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.”

This test of reasonableness was further applied in the case of Ajay Hasia and it was held that “wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an ‘authority’ under Article 12, Article 14 immediately springs into action and strikes down such State action.” No action of the state can be arbitrary or unreasonable. If the state does not given equal protection of laws to adult married women as it does to married girl children, is it saying that a girl child cannot be raped but an adult woman by the virtue of her being an adult and hence, emotionally and physically stronger than a girl child can? That an adult married woman must resign herself to her fate of being raped by her husband every day because she is expected to make her peace with it? No reasonable man would agree that a crime against any human being should be determined by their age or their supposed capability to endure that crime.

This test of reasonableness clearly shows us the arbitrariness of this classification and the existence of it despite its legal loopholes. This law is neither “right, nor just nor fair”. It is an arbitrary state action and does not deserve to live on, as it violates the spirit of the Constitution.

Apart from the test of reasonableness, in Suchita Srivastava v. Chandigarh Administration, the test of best interests was discussed. “This test requires the court to ascertain the course of action which would serve the best interests of the person in question.” In addition to humanitarian arguments, legal arguments have shown that it is in the best interests of the victim, that is, the women to be given the right to be protected against marital rape. It is in the best interests of this nation that fifty percent of its citizens are able to truly marshal the spirit of the Constitution and the 10-15% of its citizens currently suffering are able to drudge themselves out of their marital disharmony and misery. It is in the best interests of this nation that rape is seen as what it really is: a heinous crime; that there be no exceptions, no ifs, and no buts to protect those who perpetrate this crime. It is not merely a crime against an individual, or a state but rather a larger crime against humanity. And, in the spirit of the Constitution and belief of the people of this nation in our judiciary and our legislation, we must never let any of our citizens’ woes be unheard or unjustly disregarded with no legal remedies. The criminalization of marital rape would be a step in the direction of criminalization of archaic beliefs and thoughts, which go against the spirit of equality imagined in our Constitution and towards the building of the nation we wish to belong to.

Article submitted by:

Surbhi Meshram

Assistant Professor of Law

Department of Law, Kalinga University


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