A recent judgment involving an allegation of marital rape has raised the question as to whether the existing laws on sexual assault against women need to be revisited or new ones need to be introduced for the protection of adult married women who face forced sexual intercourse by their partners.
On August 23, 2021, the Chhattisgarh High Court discharged a man accused of raping his wife while relying on the exception carved out in Section 375 of the Indian Penal Code (IPC) dealing with the offence of rape. As per the order, Exception II in Section 375 makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under 18 years of age, is not rape.
There have been several recent instances where courts dealt with cases surrounding the central issue of marital rape.
The Punjab & Haryana High Court, meanwhile, is set to adjudicate on the legal validity of a first information report (FIR) under Section 376 (punishment for rape) of IPC registered by a wife against her husband.
On July 30 this year, the Kerala High Court noted that “merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant divorce”. The Bench, therefore, was of the view that marital rape is a good ground to claim divorce.
In July 2019, the Delhi High Court dismissed a petition seeking a direction to the Central government to declare marital rape as a ground for divorce. The Court opined that it did not have the power to legislate under Article 226 of the Constitution.
Although the legal issues varied with the cases, the common issue was the allegation of forceful sex by the husbands.
In 2018, the Gujarat High Court had called marital rape a “widespread problem” adding that it had been made an offence in fifty American states, and in Australia, Canada, New Zealand, and a host of European countries.
The Court, therefore, called out the government for failing to criminalise the act.
Senior Advocate Rebecca John referred to the “vacuum” in the law, stressing that till such time forcible sexual intercourse within a marriage is not declared as an offence, the vacuum would exist.
“However, in the context of this (Chhattisgarh) judgment, the woman is clearly saying that she was subjected to forced sexual intercourse and the Court’s only response is to say that it is not an offence. Constitutional Courts have a special obligation to use language that is in sync with our constitutional framework,” she said.
The lawyer pointed out that this was a missed opportunity, as the Court could have reminded Parliament that non-recognition of marital rape as an offence is a matter of grave concern and needs urgent intervention.
“While considering the scope of Exception 2 to Section 375, the Court ought to have taken into consideration the judgment of the Supreme Court in Independent Thought v. Union of India, where it diluted explanation 2 in the context of child marriages. The judgment of the Supreme Court ought to have given the High Court teeth to issue directions to the Union of India to look into the issue, instead of simply saying that this was not an offence… thereby sending a message, however unintended, that it was okay to subject a woman to forced sexual intercourse within a marriage,” John argued.
“While dealing with cases of rape, the only response of the State is to increase punishments. As a practitioner of law, I feel the answer lies not in increasing punishments but recognising the crime...and identifying and understanding the range of offences,” she noted.
“A woman who is stating that she was forcibly subjected to sex without her consent, by her husband, must have some consequences … Whether she is able to sustain the allegation is a different issue.”
Advocate Vrinda Grover argued that the inference and consequence of Exception 2 in the rape penal provision is that “a wife loses her sovereign right over her own body and her sexual autonomy stands denuded.”
“The exception creates a legal shield against penal consequences for a husband who commits non-consensual, violent, forced sex, against the will and wishes of the wife. This is blatantly unconstitutional, for our Constitution accords full rights to women, including the right to equality, dignity, liberty, non-discrimination and free expression,” she said.
Grover questioned how Exception 2 of Section 375 IPC that handed an “absolute dominion” over a married woman’s body to the husband, met the test of constitutionality.
“Under the guise of protecting the institution of marriage and in the name of religion, for too long, women’s basic human rights have been compromised. However, the 2018 Joseph Shine judgment of the Supreme Court unequivocally demolishes the argument of ‘marital entitlements’ of the husband,” she remarked.
Post the amendments to the crime of rape, particularly in 2013, Grover pointed out that the notion of consent of the woman is central to the legality of a sexual act.
In 2013, the Justice JS Verma Committee formed following the Nirbhaya gang-rape incident in 2012 made several recommendations for changes in the existing laws.
On marital rape, it had suggested that Exception 2 "be removed". The Committee also said that the rape law ought to specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.
“The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape,” it stated.
Grover, therefore, opined that the exception in the rape law must be deleted.
“Unless it is set aside, in the eyes of the law, a wife will remain subject to the will of the husband, his chattel; and sexual violence by a husband upon his wife will not be considered a crime, deserving of prohibition and punishment,” she underscored.
Referring to the recent divorce judgment of the Kerala High Court, she said “on the facts and evidence of the case,” the High Court was compelled to to comment on the gap in the law and the urgent need for recognition of marital rape as a crime, to provide redress to a wife suffering non-consensual sex at the hands of the husband.
According to Grover, the only legal recourse available for a wife presently is to seek protection under the Protection of Woman against Domestic Violence Act, (PWDVA) which is a civil remedy. The PWDVA recognises “sexual abuse by any family member, including the spouse, a form of domestic violence, against which the court can grant a protection order,” she said.
Grover added that many common law jurisdictions including England, Canada, Australia, South Africa and even neighbouring Nepal had criminalised marital rape.
Bombay-based Senior Advocate Gayatri Singh said that when it comes to marital rape, the law is pitted against the woman as the exception to Section 375 does not recognise a married woman’s autonomy over her body and her right to choose whether to have sex with her husband or not.
“Even in cases of forced sex against the consent of the woman, courts are reluctant to grant any relief because it is not considered rape under the law,” she said.
Besides this impediment in law, another real problem that Singh felt women have to face is the regressive attitude of some courts where the wife was stated to be treated as a property by the husband or as his adjunct, and not as an independent autonomous human being.
Singh, however, seemed hopeful in light of the Kerala High Court judgment.
“It is encouraging to know that in a recent Kerala High Court judgment, divorce was granted to the woman on the ground of cruelty where sex without the consent of the woman, even though she was his wife, was treated as cruelty,” she said.
The senior lawyer pointed out that it was therefore essential that the “outdated exception” to the law was struck down as done in some countries.
“In addition to this, it is necessary that the judges change their views on a woman’s position in a marital relationship and see her as an equal partner with a right to take decisions independent from her husband, particularly when it involves her bodily integrity in matters relating to sexual relations,” she declared.
National Crime Record Bureau data for 2019 reveals that of the total rape victims in India, 27,283 victims were above 18 years, and in 30,165 rape cases the offenders were known to the victim.
A public interest litigation filed in 2017 in the Delhi High Court challenging Exception 2 of Section 375 of the IPC as being ultra vires Articles 14, 15 and 21 of the Constitution is still pending.
"In fact the arguments were part heard," said Senior Advocate Colin Gonsalves, who had appeared for the petitioner in the matter.
According to Gonsalves, the matter was being heard by then Acting Chief Justice Gita Mittal, who later assumed charge as the Chief Justice of J&K High Court, and therefore, arguments would have to be made again.