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Marital Rape: India lags behind in the law

Bar & Bench

by Vikas Pahwa

The debate to criminalize marital rape was given a fresh boost when Maneka Gandhi, Women & Child Development Minister, replied to a parliament question in Rajya Sabha in March this year.

She said,

“Marital Rape as understood internationally cannot be suitably applied in the Indian context due to various reason like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mind-set of the society to treat the marriage as a sacrament.”

A few days later though, she retracted her statement, terming it an oversight.

It would not be the only time the issue of marital rape would be brought up in the Parliament.

On March 15th Haribhai Chaudhary, the MoS for Home, responded in the Lok Sabha that the Law Commission has been asked to deliberate on the matter of marital rape during the course of the comprehensive review of the Criminal Justice System.

The Justice JS Verma Committee, set up in 2012 to examine possible amendments in the criminal laws related to sexual violence against women, had strongly recommended that the exception for marital rape be removed from the Indian Penal Code. The Committee also recommended that the law must specify that the marital relationship between the accused and the victim is not a valid defence against the crime of rape or sexual violation.

Marital rape is a non-consensual physical relationship wherein the culprit is the husband of the victim. In India, marital rape is not a criminal offence and has been listed as an exception in the offence of rape. The Law Commission of India in its 172nd Report on Review of Rape Laws also suggested in retaining “husbands” in the column of exceptions in the definition of Rape, observing that this exception should not be deleted as “that may amount to excessive interference with the marital relationship.”

The section of the society supporting the marital rape exception argues on two primary factors: non-interference in domestic relationships and that existing laws are sufficient to address any form of matrimonial discord including Marital Rape.

On the other hand, it is argued that there is no distinction between a husband subjecting his wife to non-consensual intercourse and a culprit subjecting the same to a stranger.

It is also argued that rape by a stranger which is a one-time event can be highly traumatic, but rape by a husband, which can be frequent and repetitive, can be severely atrocious. Whether it takes place once or is part of an established pattern of domestic violence, trauma from Rape has serious repercussions regardless of whether the assault is charged or not. Unlike in other forms of rape, where the victim can isolate herself from the rapist, in the case of Marital Rape the victim has no choice but to continue living with her tormentor. When a woman is raped by her husband, she has to live with the rapist.

It is really surprising that India is one of the very few countries where Marital Rape is still not a criminal offence. Interestingly, in India it is a crime for a husband to have non-consensual intercourse with his wife who is living separately either under a decree of separation or under any custom or usage, but not when they are living under one roof.

The ancient practice of retaining the marital rape exception stems from the ‘implied consent’ theory. In 1734, Sir Matthew Hale Chief Justice of House of Lords in UK held that the husband cannot be guilty of Rape committed on his lawful wife as in the institution of marriage, by mutual matrimonial consent and contract, the wife has offered herself for sexual intercourse to her husband and cannot retract.

According to him, the marriage is a sacrosanct institution in which a man and woman mutually consent to lead a matrimonial life. Once the marriage is in effect, an adult woman is deprived of her right to consent to intercourse. The Hale dictum served as the basis for supporting the marital rape exception in common law for a many centuries. After 257 years, in 1991 Justice Owen, Crown Court of Leicester, overruled the view of Chief Justice Hale and held that the Common Law is capable of evolving in the light of the social, economic and cultural developments and refused to apply the matrimonial exemption to Rape cases and convicted a husband for having non-consensual intercourse with his wife.

This view was endorsed by the House of Lords in the appeal in 1992.

Most of the common law countries rejected Hale’s dictum nearly two decades ago and recognized Marital Rape as a crime but India till date is hell bent on enforcing an ancient theory. On one hand, the Constitution of India guarantees equal treatment to men and women, and on the other hand, India refuses to let a wife exercise the right to choose whether or not she wants to engage in intercourse with her husband.

In our Constitution, the right to equality and dignity are introduced to remove discrimination or disability on the grounds of being a female or from a weaker segments of the society. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from religious scriptures. The laws made by the Government must be consistent with the Constitution or else they become void under the provisions of the Constitution. The Government must take all appropriate measure to eliminate discrimination against women in all areas of economic and social life in order to ensure equality of men and women.

A majority of countries in the world have criminalized marital rape in the last 100 years. In 2006 the UN Secretary-General’s in-depth study on the forms of violence against women stated that marital rape is being prosecuted in at least 104 countries. Of these 34 have made marital rape a specific criminal offence while the remaining 70 do not exempt marital rape from general rape provisions. In USA, by 1993, all of the 50 states had recognized marital rape as a criminal offence. Rwanda, one of the smallest countries in the world, has also recognized marital rape as an offence. The Australians criminalized marital rape way back in 1963.

While most of the countries in the world have criminalized marital rape and some are debating on whether to make it a separate criminal offence or to eliminate the exception of marital rape from general rape provisions, India is side stepping the core issue.

In India a husband having non-consensual intercourse with his wife can be punished under various other provisions of the IPC, which are milder in nature – but not for Rape. The argument that the State should not interfere in marital relationships does not hold much ground considering that the State has interfered in marital relationships through various other criminal law provisions. These include the law relating to adultery, bigamy, dowry, domestic violence and many others. Bigamy which is punishable for 7 years certainly cannot be a crime higher up in the priority list considering no physical harm to the wife’s body ensues in comparison to cases where she is subjected to forceful intercourse.

The question here is not merely whether the State should interfere in marital relationships. The larger question here is whether the State is interested in upholding the fundamental rights provided by our Constitution. Why is it that  women are being denied the Right to say “No”? Why are they being stripped of their Right to Dignity? According to me this is not really a Matrimonial issue- it is an issue relating to violation of Human Rights and the Fundamental Rights of equality and liberty with dignity guaranteed to the women of our country.

In this battle, it is more likely that the wife will come out victorious as her fundamental right to dignity is involved.

The distinction made by the law between marital and non-marital rape is unsustainable in today’s time because of the changed social and economic reality that exists in India especially the advances made by women as equal partners in many fields.  The fact that relics of past social and economic practices persist in some parts of India does not imply – much less necessitate that our laws should be framed to reflect those values which are better forgotten, such as sati, bigamy, dowry, etc.

We should have laws which are forward looking and consistent with emerging India rather than with the darker side of India, and a past which is better forgotten.

Vikas Pahwa
Vikas Pahwa

Vikas Pahwa is a senior counsel practicing in Delhi.

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