Addressing The Silent Epidemic: Marital Rape And The Urgency For Legal And Social Reform

While rape has been criminalised under Section 375 of the Indian Penal Code (IPC), the exception which excludes "sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age" renders a woman helpless to seek legal protection against non-consensual sexual acts by her husband, writes PVS Sailaja, Assistant Professor Dr B R Ambedkar Law College, Hyderabad.

Hyderabad: Section 375 of the Indian Penal Code (IPC) addresses the offense of rape and includes an exception that specifically excludes "sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age." This exception, however, lacks an explicit rationale, raising concerns about its impact on a married woman's bodily autonomy and her fundamental rights, including the right to life, dignity, and freedom of choice.

The provision effectively denies a married woman the legal protection against non-consensual sexual acts within marriage. By presupposing consent within the context of a legal marriage, the exception undermines the concept of 'marital rape,' rendering it incompatible with the principles of consent and individual autonomy. This omission in the law presents a contradiction, as it perpetuates the notion that marital status automatically implies perpetual consent, disregarding the importance of ongoing mutual agreement and the right of each partner to determine the boundaries of their own body.

While a series of petitions seeking to criminalise marital rape is presently pending before the Supreme Court, the Gujarat High Court, in an important observation, recently said that rape is a rape, be it performed by a man the 'husband' against his own 'wife'. As of 2019, marital rape has been criminalized in 150 countries.

However, in 2017, the SC in Independent Thought v. Union of India and in 2022 the High Court in RIT Foundation v. Union of India held that the part of Exception 2 to section 375 which excused marital rape of minors between the ages of 15-18, was unconstitutional, which means that the term 15 years in the exception now needs to be read as 18 years.

Currently, there are no criminal penalties for marital rape when a wife is over 18 years old. In a noteworthy development in May 2022, the Delhi High Court delivered a divided opinion regarding the criminalization of marital rape in the country. Justice Rajiv Shakdher, in his decision, deemed the existing law unconstitutional and asserted that the fundamental right of women to life and liberty includes the crucial aspect of the right to withdraw consent.

Striking down the prevailing law, this stance underscores the significance of recognizing women's autonomy within marital relationships. Contrastingly, Justice C. Harishanker took a different position, rejecting the plea to criminalize marital rape. The perplexing nature of this verdict arises from the stark disagreement between the two justices regarding the constitutionality of the existing law and the path forward.

While one contends that the right to withdraw consent is intrinsic to women's fundamental rights, the other emphasizes the requirement for a legislative overhaul, taking into account multifaceted considerations. The complexity is further heightened as the case now proceeds to a constitutional bench of the SC, consisting of Chief Justice D.Y. Chandrachud, Justice P.S. Narasimha, and Justice J.B. Pardiwala.

This impending review by the highest court in the land adds an additional layer of uncertainty and anticipation, as the constitutional bench will play a pivotal role in determining the legal landscape surrounding marital rape in India. The absence of legal protection against marital rape is an urgent women’s rights concern for India, given that estimates from the third (2005-06) and fourth (2015-16) rounds of the National Family Health Survey (NFHS) revealed that the prevalence percentage of Intimate Partner Violence (IPV) against women ranges between 3% to 43% in different states of the country.

The 5th round of the survey, held in 2019-20 and conducted in about 637,000 sample households in 707 districts of 28 states and eight union territories, suggests that 1 in 3 women in India aged 18-49 experience spousal violence, with at least 5%-6% of the women reporting sexual violence. The NFHS survey findings found a strong link between sexual and physical violence, so it recorded marital sexual violence under the umbrella of spousal violence.

A significant juncture in this discourse occurred in 2000 when the Law Commission rejected an argument challenging the exemption of marital rape from criminalization. The Commission, expressing reservations, noted that criminalizing marital rape might result in "excessive interference with the institution of marriage."

This stance reveals the tension between safeguarding the sanctity of marital bonds and addressing the urgent need for legal remedies for victims of violence within the marital framework. This legal perplexity is underscored by the complex interplay of societal norms, legal principles, and the protection of individual rights within the private sphere.

The hesitancy to intervene stems from concerns about potential repercussions on the institution of marriage, creating a conundrum that remains a formidable challenge in the pursuit of justice for victims of marital rape. A significant shift from the prevailing narrative emerged in 2012 when a committee led by J.S. Verma, a retired judge of the Supreme Court, recommended the criminalization of marital rape.

The Verma committee challenged the existing immunity granted to marital rape, attributing it to an antiquated perception that treated married women as the property of their husbands, presuming their perpetual consent to the latter's sexual desires. Proposing the deletion of the exception clause, the committee asserted that the marital relationship should not serve as a valid defense in determining the presence of consent.

Despite the recommendations of the Verma committee, the Criminal Law (Amendment) Bill, 2012, formulated in the aftermath of the committee's report, did not incorporate any provision for the criminalization of marital rape. Notably, the Parliamentary Standing Committee on Home Affairs, tasked with examining the bill, dismissed any proposal to criminalize marital rape.

The committee justified its stance by expressing concern that such a move might place undue stress on the entire family system, potentially leading to greater injustice. Furthermore, it argued that ample remedies were already in place, citing Section 498A of the Indian Penal Code, the Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005), and various other personal laws governing marriage and divorce.

This complex turn of events highlights the perplexing nature of the discourse surrounding marital rape, where recommendations for criminalization have been met with hesitancy and resistance based on concerns about societal structures and the perceived adequacy of existing legal safeguards. The intricate interplay of legal, social, and cultural factors adds to the convolution of this longstanding and contentious issue.

The discourse on criminalizing marital rape in India has witnessed additional arguments grounded in perceived cultural norms. The union government has contended that the international conception of marital rape may not be entirely applicable in the Indian context due to a societal mindset that venerates marriage as a sacred institution.

In a case before the Delhi High Court, the union government asserted that the criminalization of marital rape might destabilize the institution of marriage and potentially be misused as a tool to harass husbands. Courts, in several instances, have tended to avoid scrutinizing the exception clause. For instance, the Gujarat High Court, in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat, acknowledged marital rape as a disgraceful offense but refrained from striking down the exception clause or urging the state to do so.

A judgment from the Delhi High Court held that forced sex within a marriage could not be considered rape, thereby suggesting that an analysis of facts was not deemed necessary. This intricate legal landscape brings forth the complexities surrounding the exception clause, with arguments invoking cultural norms and societal perspectives.

The hesitation of courts to question the clause directly and the divergent interpretations underscore the perplexing nature of addressing marital rape within the legal framework in India. The intricacy of the matter intensifies when discussions veer into the constitutionality of addressing marital rape.

The very nature of this debate has led to a standstill, leaving cases of marital rape in a state of legal limbo. The constitutional discourse becomes a battleground where the rights of individuals clash with the perceived sanctity of private relationships. The Constitution was not solely conceived as a tool of liberation against colonial administration but also as a transformative document challenging conservative forces and fostering democratization in both public and private spheres.

The horizontal application of constitutional rights goes beyond recognizing repressive forces, notably patriarchy, and concurrently seeks to emancipate individuals situated at the lower echelons of hierarchical institutions. This nuanced perspective calls for a reevaluation of the conventional boundaries demarcating public and private realms, emphasizing the centrality of individual autonomy in the broader framework of constitutional rights and social transformation.

In conclusion, the issue of marital rape serves as a poignant reminder of the persistent challenges that hinder the attainment of true gender equality. This deeply entrenched form of intimate violence highlights the need for comprehensive legal, social, and cultural reforms. Achieving a society where all individuals, regardless of gender, can live free from the threat of abuse requires a multi-faceted approach.