Is a woman’s or a man’s sexual liberty diminished after marriage? The Right to say “no” (to sex) after marriage was rejected by Hon’ble Justice DY Chandarchud. Although it is commonly assumed that either spouse must guarantee the permission of the other on sexual relations after marriage, marital rape was not even considered a problem in ancient India. The patriarchal structure of Indian culture, in which women were considered ‘property’ or ‘chattel’ of their husbands, was the fundamental basis for this thinking. This does appear to be traditional! However, courts in India are now hearing cases involving this subject, even though India is one of 36 nations where marital rape is not yet criminalized, compared to 150 other countries. Read on to learn about the benefits and drawbacks of criminalizing marital rape, as well as court precedents!
PROVISIONS RELATING TO MARITAL RAPE
The act of sexual intercourse with one’s spouse without the permission of the spouse is known as marital rape or spousal rape. It’s a sort of domestic violence and sexual assault. Historically, a husband’s sexual intercourse with his wife was viewed as a right of couples, with or without an agreement, and Section 375 of the IPC includes an exemption that grants immunity to marital rape.
- To begin, Section 375 defines rape and provides seven conceptions of consent that, if violated, would result in a man committing rape.
- Exception 2 to Section 375 exempts non-consensual sexual intercourse between a husband and a wife above the age of fifteen, although the Supreme Court elevated this limit to 18 in Independent Thought v. UOI (2017).
- “Sexual intercourse by a man with his wife, the wife not being under eighteen years of age, is not rape,” according to Independent Thought. As a result, courts nowadays take this age (18 years) into account by using this case as a precedent.
ROLE OF JUDICIARY
Legislators have claimed that marital rape is already covered by the IPC, implying that a married woman who is subjected to non-consensual rape can file a complaint under Section 498A of the IPC (cruelty) or the Domestic Violence Act, but not under Section 375. However, the judiciary has taken a different stance. Let’s discuss some examples:
The Delhi High Court was considering a challenge to the constitutional validity of the ‘marital rape immunity afforded under exception 2 of section 375 of the IPC in RIT Foundation v. UOI and other associated cases (2022). The case brought to light important problems like consent, the level of governmental control over female sexual autonomy, and the need to remove historical biases in the law.
- The court essentially considered how to distinguish between married and unmarried women’s dignity, ruling that every woman, regardless of marital status, has the right to refuse a non-consensual sexual act.
- The premise is that a relationship cannot be put on a new footing since a woman stays a woman whether she is married or not.
- “Just because she is married does not mean she can seek recourse to other civil and criminal laws and not under section 375 (rape) of the IPC if she is a victim of coercive sexual intercourse by her husband,” the Court ruled.
- The exception from prosecution granted to husbands under section 375 of the IPC has formed a firewall, according to a bench of Justices Rajiv Shakdher and C. Hari Shankar, and the court must determine if the firewall violates Articles 14 and 21 of the Constitution.
The Chhattisgarh High Court decided that “sexual intercourse or sexual actions by a man with his wife…would not constitute a crime of rape, even if it was by force or against her will,” and cleared the man in the issue of the complaint leveled by his wife (Bar & Bench Report)
- Justice N.K. Chandravanshi referred to Exception 2 of Section 375 of the IPC when the husband and his family filed a revision plea opposing the accusations brought against him by his wife (which deals with the offense of rape).
- “In this case, the plaintiff is a lawfully wedded wife…sexual intercourse or any sexual act with her by… the husband would not constitute a crime of rape, even if it was forced or against her will,” the court decided.
- Other allegations against the accused were upheld by the judge, including Sections 498A (cruelty) against the spouse and his family members, and Section 377 (discrimination) (unnatural offenses).
ARGUMENTS IN FAVOUR OF MAKING MARITAL RAPE A CRIME
- The “Protection of Women from Domestic Violence Act 2005” includes concerns concerning the married couple. However, the word “sexual abuse” is mentioned but there is no reference for the word “rape”.
- The Domestic Violence Act has been deemed a civil statute by the courts, allowing the accused to avoid jail time.
- A civil law, by definition, is inadequate to deal with severe crimes such as rape, murder, and so on.
- After marriage, every woman must have sexual autonomy over her body, thus section 375 exception 2 violates Articles 14 and 21 of the Constitution.
- Marital rape cases have also been claimed to be covered by Section 498A of the Indian Penal Code (cruelty), however, this section does not directly include rape.
ARGUMENTS AGAINST MAKING MARITAL RAPE A CRIME
- The “Protection of Women from Domestic Violence Act 2005” is said to cover concerns concerning married couples. As a result, there is no need to abolish the 375 exemptions.
- Individuals, jurists, and even men’s rights advocates have pointed out that if marital rape is criminalized, there is a high risk of it being exploited, which is a major cause.
- The figures suggest that 498A, the dowry legislation, is widely misunderstood. According to some advocates, 85 percent of dowry charges turn out to be fake.
- In 2020, a men’s rights activist named Deepika Narayan wrote an essay against the abuse of 498A.
A total of 111,549 complaints were reported under 498A in 2020, according to an article authored by a men’s rights activist (Deepika Narayan). Many husbands committed themselves after being charged under Section 498A, yet women are constantly being forced to have sex after marriage without consent, therefore marital rape cannot be considered a less serious offense than any other kind of sexual violence. As a result, it will be impossible to tell whether or not marital rape will be criminalized in India because it has both a benefit and a drawback.
Author’s Name: Yashaswini Bulusu (Narsee Monjee Institute of Management, Hyderabad)