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Marital Rape: Role Of Public Opinion In Forming A Legislation Against It

As long as they are married, it is perfectly legal for a man to rape a woman in India. Section 375 of the Indian Penal Code, 1860, which classifies rape as a crime, provides this exemption as a "sexual activity with a woman without her consent, against her will, by coercive power, misdirection, or deception, or at a period when she is intoxicated, or is of unsound mind, and in any case, if she is a minor that is below the age of 18."[1]

The exception 2 of the section stating that, "sexual relations or sexual intercourse by a male partner with his wife could not be considered rape if his wife is not a minor i.e., under the age of eighteen," essentially ruling out marital rape from the list of criminal offences in India.

Not only this but until five years ago, girls aged fifteen to eighteen were not even protected by rape legislation as it stands today. In 2017, the Supreme Court increased the original age of fifteen except eighteen and held that the section should read "the wife not being under eighteen years of age" in the case of Independent Thought v. Union of India (2017). But this judgment was limited to making sure that the IPC was in line with the age of consent, which is eighteen, and hence, was not able to address and recognize the bigger issue of the marital rape exception for adult partners.

India is amongst three dozen countries in the world wherein wives cannot initiate a criminal case against their male partners for nonconsensual sex, while other countries recognize that rape is rape, and it should be penalized irrespective of the relationship between the perpetrator and the victim. Then what is holding India, an up-and-coming "superpower," back from penalizing this infamous exception?

A critical will be all it takes to break the reasons down to two basic barebones: misogyny and misconceptions. These two factors form the foundation of arguably the most persistent hurdle in the way of India penalizing marital rape: a rigidly patriarchal society spanning across India's myriad of religions, that suppresses women's agency over their bodies, giving way to a unified culture where, in the dated sense of words, marriage and family still hold utmost importance as the building blocks of society.

The burden of maintaining this culture, of course, lies mostly on women, who are expected to make "sacrifices" to preserve the "sanctity of marriage." Public opinion plays a vital role in shaping these constructs in a country like India, one of the biggest democracies on the planet, where governmental actions become the function of opinion rather than of force and the public's will is enacted into law by the public representatives themselves.

Therefore, the campaign to criminalize marital rape in India then is not just about changing the law on paper. It is about attacking the ingrained mentality that still views the wife as her husband's property and not as an individual with her agency. It is about fighting against this notion of marital sanctity that is based on the subjugation of women. And it is about challenging this larger rape culture that deprives women of their fundamental liberties, respect, and bodily autonomy.

Brief History and Developments
In most parts of the ancient world, the earliest laws defined rape as a crime of theft against the father or the husband, rather than the woman herself. Therefore, by definition, a husband could not rape his wife because within a marriage a man could do whatever he wanted to with his property, i.e., his wife.[2]

Rape of a woman used to be considered a property crime against a father or a husband, and not against a woman's right to self-determination. This property to be withheld in a female was her virginity or sexual purity. A man could not possibly be prosecuted for raping his wife because a woman's "purity" could not be violated by the husband as he practically "owned" her.

The British Jurist Sir Matthew Hale described marriage as a legal contract in which a woman "gave herself" to the husband for life[3]. In the 18th and 19th centuries with the growth of middle-class mentality and Victorian morality, the emphasis on women's chastity increased and rape began to be seen as a threat that women faced outside their household which the male figures in their families had to protect them from.

It was under the influence of these laws and values that the Indian Penal Code was drafted in 1860 under the English Common Law system. Most of the public opinion on marital morality helped shape various sections including Section 375 which categorically excluded marital rape from the definition of punishable sexual offenses.

Cut to a century and a half later, feminist movements across the world, including in India, have highlighted the significance of consent and empowered women to report sexual violence, regardless of the identity of the perpetrator. Such activist movements have led to various progressive changes in India's anti-rape laws in 1983 (The Criminal Law (Second Amendment)), in 2002 (Amendment to Indian Evidence Act), in 2012 (Protection of Children from Sexual Offences Act), and again in 2013. And yet, India continues to uphold a man's right to rape his wife. Why?

A week after the Nirbhaya gang and murder case in 2012, a committee under Justice (Retd.) J. S. Verma was formed by the UPA government to propose "possible amendments to the Criminal Law to provide for quicker trial and enhanced punishment for criminals committing sexual assaults of extreme nature against women." The Commission received 80,000 suggestions and finalized its 644-page report, within 29 days, and recommended sweeping changes.[4]

While some of its recommendations contributed to shaping The Criminal Law (Amendment) Act passed in 2013, others, such as the one regarding marital rape, were not considered. In response to the judicial committee's recommendation to criminalize marital rape, a Parliamentary Standing Committee responded that doing this would put the entire family system under great stress.[5]

Since then, public figures have reaffirmed the idea that penalizing marital rape will "destroy marriages" and create "absolute anarchy in families."[8] These arguments have obvious roots in the ancient idea that marriage makes a woman her husband's sexual property and "pleasing" him whenever he desires is one of the many duties that come with being a wife.

The Domestic Violence Act, of 2005 hints at marital rape by the mention of sexual abuse in a live-in or marriage relationship but there is no provision for initiating criminal proceedings against the abuser as the act provides only civil remedies.[9]

In Sakshi v. Union of India and Ors (2004), Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of India to declare that "rape" under India's Criminal Rape Law Section 375 includes all forms of forcible penetration. The petitioner also raised the question that if forced physical violence with a wife is considered a punishable offence then why isn't forced sexual intercourse recognized as one too? The petitioner also raised the question that if forced physical violence with a wife is considered a punishable offence then why isn't forced sexual intercourse recognized as one too? The court upheld the existing form of definition and refused to alter Section 375.[10]

In the case of Independent thought v. UOI & ANR. (2017), a child rights organization known as Independent Thought, has filed a writ petition in the public interest before the Supreme Court, challenging the constitutionality of Exception 2 to Section 375 of the IPC which decriminalized forced sexual intercourse by a husband with his wife between the age bracket of fifteen to eighteen years.[11] The focus of the petition was to seek clarification and harmonization of Exception 2 with existing laws on child marriage under IPC where the age of consent for sexual intercourse was 18 years.

The Court took note of this anomaly and deemed it necessary to read Exception 2 as saying that sexual intercourse with a wife above 18 years of age was not rape. The Court also discussed the right to bodily integrity and sexual anatomy in the context of privacy by citing several cases but avoided a detailed overlook of the idea as it would have "wider ramifications on the legality of marital rape as a whole." It refrained from discussing the sexual assault of adult women in a marital framework, stating that it would lead to adjudication on the legality of marital rape beyond the age factor.

Justice J. B. Pardiwala in the case of Nimeshbhai Bharatbhai Desai Vs. The state of Gujarat[12] stated that "a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her free consent." [13]

In the March of 2022, the Karnataka High court noted that the "institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast," condemning the fact that marital rape continues to be legal in India even in 2022. Justice M. Nagaprasana who presided over the present matter, said, "no exemption in law can be so absolute that it becomes a license for the commission of a crime against society."

The court was ruling on the petition of a man accused of raping and assaulting his wife, harassing her for money, terminating her fetus through forced sexual intercourse, and sexually harassing their minor daughter. The accused had pleaded with the court to quash the charges against him on the argument of marital rape immunity in India. Consequently, the court dismissed his petition, stating that the wife's allegations "would send a chilling effect on any human reading the contents of it."

"The Constitution does not in any sense depict the woman to be subordinate to a man [] Under the Constitution, the rights are equal; protection is also equal." Justice Nagaprasanna further noted. Criticizing the clear lack of equality that trickles down into the county's law-making process and by extension, to the society, he added, "a woman being a woman is given certain status; a woman being a wife is given a different status. Similarly, a man being a man is punished for his acts; a man being a husband is exempted from his acts. It is this inequality that destroys the soul of the Constitution which is [the] Right to Equality."

The judgement garnered praise but did not strike down the exception of marital rape immunity as in doing so would be "the prerogative of the legislature."

"It's a nice liberal moment [] The result is laudable. But the order is unsustainable," Rebecca John, a senior advocate, opined on the present judgment. She stated that "so long as an absolute exception exists, till the time it is struck down either through a constitutional court or a legislative amendment, a judge can't say I'm disregarding the absolute exception."[14]

The first petition to penalize marital rape was filed in the Delhi High Court in 2015 by an NGO called RTI Foundation, All India Democratic Women's Association, and a spousal rape victim. In 2017, the centre had filed an affidavit, in this case, saying that criminalizing marital rape "may destabilize the institution of marriage" and become a potential tool for harassing husbands.[15]

Hearings for the matters began in January 2022. The Centre filed an additional affidavit in the case, saying that it can assist the High Court only after consulting all stakeholders, including the state governments. "Absence of any such consultative process by the executive/legislature may result in some injustice to one section of the other," the Centre stated. Finally, in May 2022, the Delhi High Court took seven years to hear petitions challenging the marital rape exception only to come up with a split verdict, paving the way for the matter to be adjudicated by the Supreme Court.[16]

The petitioners argued on the aspect of the constitutionality of the exception in as much as the tests prescribed under Article 14 and Article 21 of the Constitution of India are concerned. They argued that the act of non-consensual sexual intercourse or rape is abhorrent and inherently violative of the fundamental right to life and liberty of a woman under Article 21. It was further argued that the classification of the right to prosecute a man based on marriage is unreasonable as it offends Article 14 of the Constitution.[17]

It was further submitted that availability of other provisions in various legislations including Sections 498A, 304b of IPC, Domestic Violence Act, and other civil remedies, are insufficient to deal with the offence of rape under Section 375, in respect of a wife alleging rape by her husband, as there is no express point of commonality between the said provisions. It was argued that while certain elements of the base offence may exist, every offence must be prosecuted separately.[18]

In his verdict, Justice Hari Shankar stated that "what distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex."[19]

"Sex between a wife and husband, whether the petitioners seek to acknowledge it or not, is sacred," the judge stated.

"Introducing, into the marital relationship, the possibility of the husband being regarded as the wife's rapist, if he has, on one or more occasions, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law," he stated.

The primary question that arises here is whether protecting the institution of marriage is more important than protecting a person's right to bodily integrity.

Justice Hari Shankar held Exception 2 to be "eminently in the public interest." He said that a husband having sex with an unwilling wife cannot be "equated with the act of ravishing by a stranger."[20] But does this "sacred" nature of the relationship between them justify non-consensual sex?

On the other hand, Justice Rajiv Shakdher in his verdict struck down the exception and stated the exception in question is "steeped in patriarchy and misogyny" and the "classification, in my opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is 'real rape' and that the same act within marriage is anything else but rape."[21]

"The right to withdraw consent at any given point in time forms the core of the woman's right to life and liberty which encompasses her right to protect her physical and mental being," Justice Shakdher said, calling for a change in the dated provision. "While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred," the judge further noted.

The Delhi Government argued that the exception to Section 375 of IPC about non-criminalization of marital rape does not leave a married woman remediless under forced sexual intercourse by her husband. The advocate from the government submitted that the exception does not compel a wife to have sexual intercourse with the husband and that the remedy of divorce, including other remedies under criminal law, is available to her in such situations.[22]

Most recently, in the January of 2022, a curious hashtag called #MarriageStrike had been trending on the public platform Twitter for a couple of days as a response to the Delhi High Court's decision of hearing pleas to criminalize marital rape on the grounds of it violating Article 14 and Article 21 of the Constitution. On Twitter, the debate had become a 'feminist' versus 'save men' issue.

The tweets in support of the 'strike' argued about how the criminalization of marital rape will increase the possibility of fake cases and put men in a disadvantaged position. According to social media insights provided by the online tool Talkwalker app, between 18 to 20 January (till noon), more than 66.8 thousand tweets constituted of the hashtag #MarriageStrike.[23] This is one of the many incidents that give an idea of how the Indian public, predominantly men, views marital rape: a threat to the patriarchal aspects of marriage deeply entrenched in our society.

These men would prefer boycotting the institution of marriage but would not stand having their partner a right to freely consent to whatever sexual activity they engage in. Men trending the hashtag said that they will not marry at all if more 'power' is given to women in marital relationships. The 'power' in question is a woman's right to say no to forced sexual intercourse. The prime fear is that Indian women would misuse this 'power' to falsely implicate innocent men.

This idea of women using laws meant to protect themselves against unfair treatment is often termed "misuse." For the most part, this idea misinterprets the debate around marital rape in this case in presenting it as a "men versus women" issue where women are out to get men and strip them of their "rights," rather than a rights-based issue.

One of the arguments that were put forward by the petitioner in the RTI Foundation v. Union of India case was:
"The case before the court is about the moral right of a married woman to refuse unwanted forcible sexual intercourse and it is about respecting the right of a wife to say no and recognizing that marriage is no longer a universal license to ignore consent." And "such an act will continue to remain condoned until it is explicitly declared an offence under the law."

Mindless twitter discourses aside, here are the facts: by comparing National Family Health Survey and the National Crime Records Bureau, the Mint estimated that 99.1% of sexual violence stays unreported, and in most such instances the perpetrator is the husband of the victim.[24] And yet, India remains one of the only 36 countries that have not criminalized marital rape[25], while also being one of the signatories to the UN Declaration on the Elimination of Violence against Women which clearly defines marital rape as violence against women.

Politicians and public figures have been conveniently citing Indian culture to justify marital rape immunity and inaction towards progressive changes in an inherently patriarchal system. In 2016, in an answer to the question regarding the criminalization of marital rape, the then Minister of Women and Child Development Maneka Gandhi responded:
"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament, etc."

Interestingly, this response stood in complete contrast with her initial stance when she observed that marital rape was about power and subjugation.[26]

Nevertheless, her response as state authority has a clear similarity to the consensus that has been formed by the general public and its representatives owing to the status of marital rape in India today. In one of the most recent instances, the Union Minister of Women and Children's Development Smriti Irani told the Rajya Sabha that to condemn every man in this country as a rapist and every marriage as violent is not advisable, in response to a question on whether the Union Government had taken any position on criminalizing marital rape.[27]

The government official failed to elaborate on the subject since it was under judicial hearing at the time. Meanwhile, BJP Member of Parliament Sushil Modi said in the Upper House that criminalizing marital rape will end the institution of marriage.[28] This begs the question: what does it entail when publicly elected officials responsible for women's welfare in the country make statements devoid of nuance and complexity?

Much like Irani's, the arguments given by the government have been in service of "protection of the institution of marriage" and/or preventing the "misuse" of gender-oriented laws. To quote the central government: the criminalization of marital rape "could open the floodgates of false cases being made with ulterior motives" and would be unpragmatic for a country ridden with high levels of illiteracy and age-old cultural norms.

Naturally, to Irani's statement, a deluge of supportive responses came along the lines of: "this marital rape propaganda raked up by leftist feminists in the name of women's safety is a well-planned desperate attempt to demolish the institution of marriage" or how it calls out the misuse of "gender-biased laws." Unfortunately, it seems to go amiss for some politicians and the public that the petition is against a license given to husbands to rape wives- an exception to the law which some husbands are wildly misusing too.

Conclusion
Marital rape has severe and long-lasting consequences for the victim as they are stuck in a marriage where there is no respect, no love, and no dignity. According to certain sections of society, marriage is a sacred institution, and bringing such a law will lead to a breakdown of marriages. But does that sanctity even remain when a husband forces himself on his wife? Does this sanctity not get lost the moment the wife's bodily integrity gets violated?

Exception 2 of Section 375 forms two categories of women based on their marital status, prioritizing one unmarried woman in protecting them from rape and turning a blind eye to the married ones, which is a direct contradiction to every Indian citizen being guaranteed equal protection of laws. The Indian Constitution guarantees equality under Article 14, but the marital law exception discriminates against females who have been raped by their husbands by denying them equal protection from rape and sexual harassment.

Exception 2 is also a violation of Article 21 of the Constitution which states: "no person shall be denied of his life and personal liberty except according to the procedure established by law." Over the past years, as evolving contexts bring new challenges to citizens' fundamental liberties, the Supreme Court has often interpreted Article 21 to extend beyond the literal guarantee to life and liberty and include the rights to privacy, health, safe living conditions, dignity, and safe environment among others.

For instance, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court stated that the right to make choices about sexual activity is within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

Time and time again, patriarchal values have been constantly used to violate constitutional core values. The public needs to understand that however "sacred" the cultural institution of marriage is, it cannot become a license of sorts to violate inherent bodily rights. The understanding of bodily autonomy needs to be kept above the understanding of family. [33]

The toughest argument in terms of legal precedents can be found in the case Justice K.S. Puttuswamy (Retd.) v. Union of India, in which the Supreme Court identified the right to privacy as a fundamental right and clearly stated that it includes "decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations."[34]

Eliminating this exemption for marital rape will make women safer from their violent husbands, enable them to get the recovery support they need, and further allow them to protect themselves from domestic abuse and sexual assault. Indian women should be treated equally, and anyone-including a spouse-should not be allowed to violate a person's fundamental rights.

Regardless of the abuser's identity or the victim's age, rape is rape. A woman who is raped by a stranger lives with the trauma of a horrible violation; a woman who is raped by her husband lives with her rapist. Even after 75 years of independence, the British-inherited criminal laws that govern our nation have remained mostly unchanged, with a few minor adjustments here and there.

However, English law has been updated, and marital rape was made a crime back in 1991. The Indian government, on the other hand, has been silent on this matter and has allowed itself to be swayed by the outmoded patriarchal norms that are firmly ingrained in the culture.[35]

End-Notes:
  1. Indian Penal Code 1860
  2. Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000)
  3. Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown (first published 1736, E. Rider and others 1800)
  4. Jagriti Chandra, "Key Judgments Puncture Government's Defense on Marital Rape - The Hindu" (Key judgments puncture government's defence on marital rape - The Hindu, January 2022) accessed September 27, 2022
  5. ibid
  6. India Not to Criminalise Marital Rape - The Hindu (India not to criminalise marital rape - The Hindu, April 29, 2015) accessed September 26, 2022
  7. ibid.
  8. Marital Rape Shouldn't Be Crime in India: Ex-CJI Misra | Deccan Herald (Deccan Herald, April 8, 2019) accessed September 2022
  9. Indian Penal Code 1860
  10. Sakshi v. Union of India and Ors. (2004) AIR 2004
  11. Independent Thought v. Union of India (2017) AIR 2017
  12. Nimeshbhai Bharatbhai Desai Vs. State of Gujarat (2008) AIR 2008
  13. ibid
  14. V Sachdev, Karnataka HC's Marital Rape Order May Sound Great But Is Legally Untenable Says Rebecca John (TheQuint, March 24, 2022) accessed September 27, 2022
  15. A Mandhani, Delhi HC Reserves Judgment on IPC Marital Rape Exception, Rejects Govt's Plea for Deferment (ThePrint, February 21, 2022) accessed September 28, 2022.
  16. Priyali Prakash, Explained | Marital Rape in India: The History of the Legal Exception - The Hindu (Explained | Marital rape in India: The history of the legal exception - The Hindu, May 11, 2022) accessed September 28, 2022.
  17. Nupur Thapliyal, Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional (Breaking: Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional, May 11, 2022) accessed September 29, 2022.
  18. ibid
  19. ibid
  20. ibid
  21. ibid
  22. ibid
  23. Nikhil Rampal, "Men on 'Marriage Strike' against Marital Rape Laws. Some People Laugh, Say Good Riddance" (ThePrint, January 20, 2022) accessed September 29, 2022.
  24. Pramit Bhattacharya Kundu Tadit, "99% Cases of Sexual Assaults Go Unreported, Govt Data Shows | Mint" (mint, April 24, 2018) accessed September 29, 2022.
  25. Marital Rape in India: 36 Countries Where Marital Rape Is Not a Crime - Education Today News (India Today, March 12, 2016) accessed September 29, 2022.
  26. Preetha Nair, Maneka Gandhi: Marital Rape Is Unacceptable - India News (India Today, June 24, 2015) accessed September 29, 2022.
  27. Scroll Staff, Condemning Every Man as a Rapist Is Not Advisable, Says Smriti Irani in Rajya Sabha (Scroll.in, February 2, 2022) accessed September 29, 2022.
  28. ibid
  29. Dipak Misra: Marital Rape Needn't Be an Offence: Ex-Chief Justice of India Dipak Misra | Bengaluru News - Times of India (The Times of India) accessed September 29, 2022.
  30. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
  31. Anirudh Pratap, The Impunity of Marital Rape | The Indian Express (The Indian Express, December 20, 2020) accessed September 30, 2022.
  32. Pramit Bhattacharya Kundu Tadit, "99% Cases of Sexual Assaults Go Unreported, Govt Data Shows | Mint" (mint, April 24, 2018) accessed October 1, 2022.
  33. The Swaddle and Pallavi Prasad, Why It's Still Legal For Indian Men to Rape Their Wives (The Swaddle, January 20, 2020) accessed October 1, 2022.
  34. Justice K.S. Puttuswamy (Retd.) v. Union of India [2017] AIR 2017
  35. Anirudh Pratap, The Impunity of Marital Rape | The Indian Express (The Indian Express, December 20, 2020) accessed September 30, 2022.

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