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“The duty of safeguarding women rights is not confined to the judiciary; it must be imbibed in the collective conscience of the nation.”

According to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019, about 70% of women in India are victims of domestic violence. One of the entrenched problems of domestic violence is Marital Rape. If we talk about Rape under normal circumstances a person would call such incident is heinous in nature. But in India there is one kind of rape that is not illegal and the perpetrator is not criminal in the eyes of the law. This kind of rape is called Marital Rape.

To simple put, Rape occurs when one person forces another person to have a sexual intercourse. “Marital Rape” refers to the rape of one spouse by another spouse. About 10%-15% of the women are the victim of marital rape. Despite these numbers, husbands have not been yet prosecuted for marital rape. It is not an uncommon way to degrade and disempower women.

The roots of “Doctrine of Coverture” can be traced to British colonial rule in the Victorian era. In the 19th century when India was a colony to Britishers, all Indian laws were greatly and deeply influenced by the English laws and the Victorian norms. The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property.

The case of Phulmoni Dasi ( Queen-Empress vs. Hari Mohan Maiti) 1881 was one of the horrifying cases with regard to Marital Rape which thereby attracted a lot of attention amongst the legislators and people in general. The facts were that Phulmoni Devi, an eleven-year-old child bride, died due to excessive bleeding when her husband, Hari Mohan, who was in his mid-thirties, tried to consummate their marriage despite his wife being eleven years of age.

The autopsy report clearly indicated a ruptured vagina as the cause of death, but due to the legal lacuna in our system, the husband was subsequently acquitted of the charge of rape because the laws on rape exempted marital rape from the ambit of the penal law completely. Because at that time the prevalent laws prevented the man from any kind of punishment, even if the sexual intercourse has been committed without consent, as long as the girl has attained the age of 10 years. Nevertheless, Hari Mohan was charged under Sections 304, 304A, 325 and 338 of the IPC subsequently. In this specific case, it was held by the Court that a man did not have the right to enjoy the person as his wife without any regard for the question of her safety and health.

With this case in highlight, the colonial government, made an amendment to the Age of Consent Act, 1861 raised the age of consent from ten to twelve years in both marital and extra-marital cases, with the intention of protecting female children from such immature cohabitation and prostitution in the future. However, when the Amendment Act, 1925 was enacted, a distinction was made between the age of consent for extra-marital and for marital rape i.e. fourteen and thirteen years, respectively even though the effect of this change was diluted since the punishment for the husband was kept at a maximum of two years only.

With the passage of times, Indian laws have now recognized the husbands and wives separate and independent legal identities. Various amendments have been made in the Indian statutes which intend to protect the women from violence and harassment that have been passed since the century, including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.”

Many legal Amendments have been made in the Indian Criminal Law to protect the dignity of women but current status of marital rape undermines the rights and protection of women. Today, India is one of the 36 countries of the world who have not criminalized the marital rape. However, Marital Rape has been almost impeached in more than 100 countries.

Marital rape is more traumatic with everlasting results: physical and mental. By decriminalizing spouse rape our government as a state is failing in its duty to guarantee sex equity that includes security from wrong doing and manhandle.

The Indian state believes that criminalizing marital rape can de-stabilize the institution of marriage. This contention is often made against the reasoning that Section 498A has witnessed instances of misuse.

Section 375 of IPC defines the offence of rape with the help of six descriptions. One of the exceptions to this offence is “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. This particular exception in the IPC violates the Article 14 of the Indian Constitution that ensures“[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” But Indian criminal law discriminates against female victims who have been raped by their own husbands. The exception that excludes married women from getting protection under the Section is not based on “intelligible differentia” as it solely relies on the basis of her marital status.

Also, Exception 2 is also a violation of Article 21 of the Indian Constitution. Article 21 states that “[n]o person shall be denied of his life and personal liberty except according to the procedure established by law.”

The right to life under Article 21 is not restricted to mere “animal existence” but also includes the right to live with dignity.

No matter what, no law should infringe on this right from a person based on their marital status. In light of this expanding scope of Article 21, marital exemption to rape violates a host of rights that have emerged from the expression ‘right to life and personal liberty’. There cannot be a more obvious and blatant violation of Article 21.

Verma Committee has also came up with their report on the status of Marital Rape, which had been constituted on 23 December 2012 in the wake of the infamous Nirbhaya case. This was a three-member committee headed by Justice J.S. Verma. This committee’s main function was to was to recommend amendments to the criminal law in India in order to provide for faster trials and enhanced punishments for criminals accused of committing sexual assaults against women. The Verma Committee also included within its suggestions, the absolute and complete criminalization of marital rape, holding that, the right to life includes the right to a dignified life for every individual and that marital rape violates this basic right completely and in dignifies the woman to a gross extent.

The UN Committee on Elimination of Discrimination against Women also recommended that the Indian government should criminalize marital rapes.

In 2013, an Amendment was made which recognized the rape of women between 12 and 15 years of age as punishable under the act.

Furthermore, the said exception for married women aged between fifteen and eighteen continued until 2018. In 2017, a PIL was filed by Independent Thought, an NGO, challenging this unintelligible classification and claiming that married women over 15 years of age should also be afforded this protection. The Supreme Court concurred with these averments to some extent and extended the age limit in Section 375 from 15 years to 18 years.

In Independent Thought v. Union of India, the apex ruled that although S.375 creates an exception to marital rape, sexual intercourse with a girl below the age of 18 years is rape regardless of whether she is married or not. The court held that “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.”

Further, the penal consequences have been provided for the safety of women, but no laws explicitly prohibit a man from raping his legally wedded wife except under the following situations:

  • Any form of sexual intercourse or sexual act committed by a man with his own wife, the wife being under 15 years of age, as given under section 375 of the Indian Penal Code, 1860.

  • Any form of sexual intercourse by the husband upon his wife during a period of separation, as provided under section 376B of the Indian Penal Code, 1860.

Thus this reflects upon the clear absence of any law for criminalizing marital rape in totality and thus reflects the state’s inability to recognize the rights of a wife who is a woman and most importantly, also a human being who deserves to live a dignified and secure life. The Indian Constitution provides several kinds of fundamental rights, including the right to life and the right to privacy but it has failed to observe that the right to life also implies the right to live a life of dignity and marital rape attacks the basic principle behind this fundamental right completely.

This however, does not provide for any protection of any woman above the age of 18 who may also be subjected to marital rape by her husband and such cases are largely prevalent all over the country and go unnoticed or dismissed since no law provides for any form of penalisation or punishment for marital rape over a woman if she is above the age of 18. Thus, if the woman is older than eighteen and married to a man who commits sexual assault, there is no legal recourse for women victims of rape if the man who commits the act is their husband. This issue has been debated and discussed by women’s groups repeatedly and the National Commission for Women has even suggested that “marital sexual intercourse by a man with his own wife without consent should also be considered as sexual assault”.

Recently, the Gujarat High Court in its recent judgment on “Nimesh Bhai Bharatbhai Desai vs. State of Gujarat” while examining the law relating to sexual offences, observed that the husbands need to be reminded that marriage is not a licence to forcibly rape their wives at all. A husband does not own his wife’s body by reason of marriage and she does not in any manner, become an object of ownership. By marrying, she does not divest herself of the human right to an exclusive autonomy over her own body and therefore, she is well within her rights to lawfully give or withhold her consent to marital coitus at any point. The Gujarat High Court was of the view that the accused must be charged for outraging the modesty of his wife and thus an investigation in this direction must be conducted.

In case under the Delhi High Court, the Court completely dismissed the petition to criminalize marital rape, maintaining that the drafting of the law is the function of the legislature rather than the court, while the court is more concerned with the interpretation of the law than its drafting. This reasoning was unfortunate, especially in view of the Supreme Court’s unequivocal verdict in the case of K.S. Puttuswamy vs. Union of India wherein it provided that the privacy of the individual is an essential aspect of dignity and that rape is a violation of a woman’s right to her bodily integrity and dignity.

During the onset of establishing the “right to privacy” as a Constitutional Right, the Supreme Court took note of the judgments on rape which hold sexual violence to be an unlawful violation of the right to privacy and sanctity and an offence against a woman’s dignity. Another such example is the case of Suchita Srivastava in relation to the issue of consent for the medical termination of pregnancy (MTP). Here, the court directed the state to respect the reproductive rights of the woman completely. These judgments clearly demonstrate that the highest court in the land deduced this right from a woman’s right to privacy, dignity and bodily integrity wholly.





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