The other day, I watched an internet video about how ignorant Indians are about MARITAL RAPE, which prompted me to write this article. The video in question was a survey conducted by a popular YouTube channel in a park in Delhi, where participants were asked about their opinion on marital rape. Unsurprisingly, everyone had the same opinion, which was 'marital rape is a myth'. The shocking part about most of them is that, by their way of speaking, it appears they're well educated. This article will shed light on the idea of marital rape and how far Indians are behind the times when it comes to such oppressive topics.

What is marital rape?

Marital rape is when a non consensual sexual intercourse occurs between husband and wife. This can happen either way, but the most commonly reported ones are atrocities against women. Simply put, marital rape is when somebody rapes their own spouse. India is one among the 32 countries around the world, where marital rape is still legal. The world has evolved tremendously along the years in terms of recognizing the importance of equality among genders as well as empowerment for the betterment of a society. The fact that a country like India is deficient in understanding the need for penalizing marital rape is extremely disappointing.

Surveys have put forward that, in approximately every 16 minutes, a girl/woman gets raped in India. Statistics have shown that, in 2020, an average of 77 rape cases have been reported with a conviction rate of 30%. Indians are prone to avoid confronting trauma due to fear of being judged insensitively by society and also due to the lack of awareness about the laws in this country, and therefore hundreds of cases of such violence go unreported as well. In light of this graph, it is plausible to guess how many marital rapes or legal rapes happen within the closed walls of a household every day and it is alarming. The necessity of legislature's attention in this matter is imperative.

Marital rape and infringement of Fundamental Rights

Indian constitution has always been an advocate of equality, which is mentioned within Article 14 of the constitution. It guarantees equality to every citizen before law. Sadly, it is kept mum about the discrimination done against married and unmarried women in terms of rape. Section 375 of the Indian Penal Code1 criminalizes rape. Unfortunately, the exception to section 375 creates a discrimination based on the marital status of females, prioritizing unmarried over married females, as it clearly states sexual intercourse of a man with his own wife does not qualify to be addressed as a rape.

This has no rational nexus and is a clear contradiction of the fundamental rights guaranteed by the constitution. Whole time, the interpretation of article 21 has been at constant challenge, exploring more meanings for it. With the help of these cases, the honorable Supreme Court has made it clear that Article 21 not only does apply as to the literal interpretation of life and personal liberty, but also gives the right to live a life with privacy, dignity, health, safe environment, safe living conditions and more.

Evidently, all the above mentioned rights are straight away infringed while neglecting the victims of marital rape. In the landmark judgment in Justice K.S. Puttuswamy (Retd.) vs. Union of India 2, the honorable SC recognized right to privacy as a fundamental right, as well as held that 'the right to privacy includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decision in respect of intimate relations'.

Sexual privacy, as a fundamental right was recognized in the case of State of Maharashtra v. Madhukar Narayan 3 as well. Furthermore, in Suchita Srivastava vs. Chandigarh Administration4, the honorable Supreme Court said that Reproductive rights are a facet of a woman's personal liberty under Article 21, and her rights to privacy, dignity, and bodily integrity should be protected as a result.

Similarly, in the case of State of Karnataka vs Krishnappa 5, the Supreme Court ruled that sexual assault violates a woman's right to privacy and sanctity. None of the judgments create a distinction between married and unmarried women, in association with their rights, neither are there any precedent that says a marital relationship tramples on an individual's right to privacy. Hence it is perceptible that a married woman has the right to either consent or say no in terms of sexual relation and forced copulation is a violation of her rights.

Currently available remedies
The Domestic Violence Act 20056 describes cruelty in various forms such as Physical, emotional and financial; sexual violence is also included. Through this act, an aggrieved person can apply for protection, restraining orders against the accused and maintenance. Nonetheless, the Domestic Violence Act 2005 is civil in nature and thus provides remedies like monetary resolution or a protective order, except in cases where there is a breach of order passed by court (section 31 and 33).

Besides, section 498A of IPC7 deals with cruelty and provides punishment for the same. These are the provisions resorted to, if at all marital rape is acknowledged by the court. Though this is not sufficient as it does not explicitly talk about marital rape and the fact that there lies an uncertainty on whether this remedy will even be granted is very disturbing. There have been instances where the court has refused to recognize the occurrence of anything wrong in the matter of marital rape cases.

Whether the judgment made by the Chhattisgarh High Court judge NK Chandravanshi, stating that sexual intercourse or any sexual act with her by her husband would not amount to rape, even if it was against her wish, or the recent ruling done by Mumbai Additional Sessions judge Sanjashree J Gharat, where he stated that sexual intercourse with a wife against her wish does not stand legal scrutiny. These judgments do not fail to highlight the necessity of penalizing marital rape in India.

Conclusion
It is a long way to go until women will be safe in a country like India, where patriarchy rules and where the social norms have normalized violence against women. This makes it hard for women to report the violence they experience. Historically, Indian courts have differed in their views concerning rape in marriage. While the courts were reluctant to recognize marital rape in the prior mentioned cases, the Kerala High Court ruled in a recent judgment that, having married does not mean a man owns the woman's body and forcing her into sexual act is nothing but marital rape.

One of the main arguments by the opposition that the foundation of India and its culture is marriage, family and family values and it will be disturbed once such a law is made, is meritless. As laws of domestic violence, judicial separation, and divorce have not disrupted the foundation of marriage, marital rape would not, either. In fact, a recent judgment by Gujarat High court said that marital rape is what has weakened the institution of marriage since it is a non-consensual conduct that breaks faith and credibility inside a marriage.

Another major argument is about women misusing such a law, if made. I would like to remind you that similar arguments were made again and again when various laws were enacted, such as Domestic Violence Act, Dowry Prohibition Acts, Section 498A etc. If there is any misuse of such a law, then there is judiciary to provide justice.

The Gujarat High court in a 2017 judgment emphasized that the criminal justice system has safeguards to detect and investigate fabricated or fraudulent marital complaints, and anybody who makes unsubstantiated accusations may be held accountable under the law. In addition, we should not turn blind eye towards the emotional trauma a woman faces on such an occurrence.

In a country where not every woman is fortunate enough to be educated or have financial independency, she will not be able to either fight her own case or move out of that toxic relationship. It is high time we amend the section 375 of IPC, which dates back to the Victorian era and make proper provisions for protection of women.

It can bridge the existing gap in the legislation, for the betterment of society.

End-Notes:

1. Section 375 in the Indian Penal Code. (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/623254/.
2. Justice K.S.Puttaswamy(Retd) vs Union of India on 26 ... (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/127517806/.
3. State of Maharashtra and another vs Madhukar Narayan ... (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/524900/.
4. Suchita Srivastava & Anr vs Chandigarh Administration on ... (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/1500783/.
5. State of Karnataka vs Krishnappa on 23 November, 1993. (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/1122792/.
6. The protection of women from Domestic Violence Act, 2005. (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/542601/.
7. Indian kanoon - search engine for Indian law. (n.d.). Retrieved November 21, 2021, from https://indiankanoon.org/doc/538436/.