Marital Rape - Obscurity Of Consent Within Commitment
Author: LawSphereX
Category: Criminal Law
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MARITAL RAPE - OBSCURITY OF CONSENT WITHIN
COMMITMENT
Niyati Priyadarshini, B.A. LL.B., KIIT School of Law
ABSTRACT
India has its ongoing battle with rape, transitioning from a period when the crime went unrecognized to one where it is brought to the forefront marked by major amendments in criminal laws such as of 2013 and 2018 following landmark cases, Mukesh and Anr. V. State of NCT of Delhi1 and Vishaka V. State of Rajasthan2. Although India has come a long way in understanding the various dimensions of rape and its occurrence, amidst this journey a new facet of rape infamously known as marital rape is born. Marital rape, not being regarded as actual rape by many as well as endured by many currently stands as a challenge before the Supreme Court as to whether the exception of marital rape from section 375 of the Indian Penal Code. 3 violates the fundamental rights of married women or not in the case of Hrishikesh Sahoo V. State of Karnataka4.
Therefore, this article will explore marital rape, the common rationale that people hold to make it different from rape in general, its challenges, impacts, how it is a hidden epidemic and why there is a need for legal recognition for the same.
1 Mukesh and Anr V State of NCT of Delhi (2017) 6 SCC 1
2 Vishaka V State of Rajasthan (1997) 6 SCC 241
3 The Indian Penal Code 1860, s 375
4 Hrishikesh Sahoo V State of Karnataka MANU/KA/1175/2022
Marital Rape in India India has always been a traditional society but slowly it's progressing towards an open one. However, open discussions on sex education or topics related to sexual relationships are highly controversial and are usually criticized. This has contributed to the high rate of sexual crimes in the country. There is a widespread reluctance to address the critical issues taking place behind closed doors even if they are life-threatening. Rather than educating about sex education, menstruation and spreading awareness against sexual violence, sexually transmitted diseases, sexual assault and rape people prefer to hush it all up until it happens. One such topic is marital rape, gradually rising. Section 375 of The Indian Penal Code 1860 comprehensively discusses rape but excludes marital rape.
Section 375, Exception – 2 states that, “Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape. ” IPC outlines all the circumstances which will constitute rape in the absence of free and sound consent. Free and sound consent is what distinguishes consensual sexual relationships from rape. Despite the clear legal framework regarding rape, marital rape is still legally unrecognized. This ambiguity largely stems from the nature of the relationship between the victim and the perpetrator because it is believed by many that marriage comes with implied consent for sex. There are three main aspects to this issue- first, the presumption that sex within marriage is always consensual and second, the difficulty in establishing consent within marriage which could lead to false convictions.
Thirdly, marriage is believed to be one of the sacred institutions of the society hence it is believed that it will dismantle the society. In the case of Harpreet Kaur V. Harminder Singh5, the Delhi High Court stated that the Constitution of India, Articles 146 and 217 specifically cannot intervene in the personal and private parts of the people’s lives. Consequently, the legal system is often reluctant to hold individuals accountable for marital rape. For instance, recently the Madhya Pradesh High Court quashed the FIR made by a woman against her husband, stating that unnatural sex by a man with his wife is not rape, wife’s consent is immaterial. 8 Such an order is rendered due to the lack of any legal framework regarding marital rape. The hesitation of the judiciary to make marital rape explicit is rooted in the outdated views of patriarchy, the unsymmetrical power relations
5 Harminder Kaur vs. Harmander Singh AIR (1984) DELHI 66
6 The Constitution of India 1950, Art 14
7 The Constitution of India 1950, Art 21
8 Sparsh Upadhaya, “Unnatural Sex by A Man With Wife Not Rape, Absence Of Woman's Consent Immaterial: MP High Court”, Livelaw, 2 May 2024, available at: https://www. livelaw. in/tags/marital-rape, (last visited on June 25, 2024) between a husband and wife and it highlights the structural inequalities existing between men and women in society and marriage. The plight of victims of marital rape Marital rape is surprisingly growing at a steady speed primarily due to the assumption that sexual relations are a normative aspect of marriage and should occur irrespective of consent fostering an environment where the perpetrator believes it is their right to do so. Victims of marital rape are reluctant to speak out because they believe it is normal to engage in sexual activities within a marriage even if they do not desire it.
Their complaints are often dismissed by their relatives or police after the identity of the perpetrator is revealed. It is also more difficult and arguably more traumatic to come forward and speak against someone you know who is inflicting abuse upon you. Even if a woman files a claim of marital rape, the lack of legal recognition of the same might lead to the case being dismissed or the claim of rape being substituted for sexual or domestic violence or upon persistent complaints she is usually advised to opt for a divorce rather than criminalizing her husband. Domestic violence like marital rape was also not a subject of public discourse until it was backed by legislation. Marital rape is indicated in the Protection of Women from Domestic Violence Act 20059, but not explicitly rather it is regarded as sexual violence.
Further, the victims can only go for civil remedies and are not able to initiate criminal proceedings. The Hindu Marriage Act10 provides grounds for divorce in cases of cruelty in marriage. Consequences of Marital Rape on the victim Marital rape has significant physical and mental impacts on women. Chronic abuse can result in long-term psychological effects, creating a power dynamic where one partner exerts dominance. This can lead to anxiety, depression, bipolar disorder, and personality disorders, in addition to the physical abuse endured. Children born out of marital rape can also be a traumatic experience for the women. As a result, the High Court of Punjab and Haryana recently allowed women sexually assaulted by their husbands to terminate pregnancy. 11 From a legal perspective, marital rape breaches Articles 14 and 21 of married women. As observed in the
9 Protection of Women from Domestic Violence Act 2005
10 The Hindu Marriage Act
11 Aiman J Chisthi, “Reminder of Trauma', Punjab & Haryana High Court Allows Married Woman Who Was
Allegedly Sexually Assaulted by Husband to Terminate Pregnancy”, Livelaw, 20 May 2024, available at: https://www. livelaw. in/tags/marital-rape, (last visited on June 25, 2024) cases of E. P. Royappa v. State of Tamil Nadu12 and State of West Bengal v. Anwar Ali Sarkar13, the principle of Article 14's equality before the law and equal protection of the laws requires a classification that must have a reasonable nexus to their objective. Exception 2 of Section 375 of the IPC grants the husband immunity from rape charges, such protection is not extended to the perpetrators of rape against unmarried women. This provision reflects the outdated notion of the doctrine of coverture that a woman's identity is embedded in her husband and establishes that such a distinction between married and unmarried women is unreasonable.
Article 21 of the Indian Constitution enshrines the Protection of life and personal liberty. Exception 2 of Section 375 undermines the dignity of married women enduring marital rape. In the case of Suchitra Srivastav V. Chandigarh Administration14 It was held the right to make choices regarding sexual activity is associated with the right to dignity, liberty and bodily integrity. Further Article 21 consists of various facets from the right to privacy and the right to bodily autonomy to the right to sleep rising out of continuous judicial interpretations. So, excluding marital rape is highly violative of the fundamental rights of the married women. Statistics of Marital Rape in India15 According to the National Family Health Survey from 2000-2006 and 2015-2016, intimate partner violence ranged between 3%-43% in different states of the country.
In its recent survey held in 2019-2020, it stated that 1 in every 3 women in the age range of 18-49 has gone through sexual violence and only 5-6% of them report it. This survey was conducted on 637,000 households across 707 districts of 28 states and eight union territories. The NFHS survey findings established a strong correlation between sexual and physical violence, classifying marital sexual violence under the broader term of spousal violence. The findings reveal that 5. 6% of married women were physically forced to engage in sexual intercourse with their husbands, 2. 7% were physically compelled to perform unwanted sexual activities, and 3. 7% were coerced into sexual activities against their will through threats of physical violence. Observations by various institutions United Nations – UN on June 25th, 2019 emphasized that legal loopholes are making marital
12 E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3
13 State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75
14 Suchitra Srivastav V. Chandigarh Administration (2009) 9 SCC 1
15 Ministry of Family and Health Welfare Government of India, “National Family Health Survey 2019-21”
rapes more explicit in different countries and therefore must be criminalized. India is among those 36 countries that are yet to criminalize marital rape. Although this issue currently stands before the Hon’ble Supreme Court in the case of Hrishikesh Sahoo v. state of Karnataka. Marital rape is one of the reasons why homes are increasingly becoming dangerous for women. J. S. Verma Committee16 - On December 23rd, 2012, the J. S. Verma Committee were tasked to give recommendations for the amendments of the criminal law concerning rape, Former Justice J. S. Verma said rape is the crime of power. In the case of marital rape, marriage should not be considered as an irrevocable consent to sexual acts. Therefore, concerning an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.
In conclusion, our criminal justice system evaluates the notion of free and sound consent when addressing rape; thus, marital rape should not be treated differently. The term "marital rape" should not exist separately from "rape. " Women over the ages of 15 or 18 are also particularly vulnerable, and the trauma they endure is equally profound. The inability of the legal system to treat marital rape as rape, instead of merely grouping it as sexual violence, exposes victims to emotional distress and undermines their faith in the sanctity of marriage. It has to take cognizance of the fact that the prevention of false convictions shouldn’t come at the expense of the safety of married women.
The assumption of frivolous rape cases initiated by women to abuse the law shows the inability of the legal system to administer justice when the truth of why marital rape still sits legally unrecognized goes back to the age-old ideology of marriage being a tool to control women. Marital rape is often overlooked because it is the private and intimate matter of a married couple much like domestic violence used to and given its sexual nature it is even kept more on the sidelines leading to the violation of fundamental rights of the married women. Marriage is considered to be one of the fundamental institutions in the Indian society and the judiciary doesn’t intervene in the matters of marital rape to withhold the sanctity of the marriage when the true sanctity has already withered away and the trust is betrayed after such a crime has been committed.
The intricacies of consent within a marriage sure are tricky but the legal system must lay out certain tests to establish the presence or absence of consent or else many rapes will be committed behind the veil of marriage and the point where it should begin is by quashing the assumption that marital privacy is an absolute right. Marital rape is
16 J.S. Verma Committee Report, “Amendments to Criminal Law” (January, 2013)
not a personal issue, it is a crime against women, where the right to privacy intervenes with the safety and bodily integrity of a woman.