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Why Indian courts tip toe around issue of marital rape

The courts do not have legislative sanction that criminalises marital rape, and they maintain the stance of ‘the ball is in their court’

Sanchita Kadam 03 Mar 2021

Marital Rape
Image courtesy: https://www.indiatoday.in/
 

In the light of recent remarks by the Supreme Court questioning marital rape, it has become pertinent to discuss ‘marital rape’ and how the issue has played out in courts of law and the legislature.

The courts have always skirted the issue since penal law does not recognise it, and this has resulted in marital rape being effectively legitimised in the country. While on one hand, the legislature shies away from criminalising marital to avoid interference in domestic affairs, the court have left the ball in the Parliament’s court. The issue continues to remain in a legal limbo and India remains one of the few handful countries in the world that still legitimises marital rape.

Where the law stands

Exception 2 of section 375 under the Indian Penal Code (IPC) haunts the reality of several married women facing domestic abuse - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape, the law says. In this clearly worded exception, the law legitimises sexual offences committed within the confines a relationship considered ‘sacrosanct’ by the society and feeds into the ill-notions of marriage being an implied consent for sexual acts.

On the other hand, we have The Protection of Women from Domestic Violence Act, 2005 which includes under its definition of ‘domestic violence’ – sexual abuse – which is further defined as ‘any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman’.

Thus, the legislature’s stand on marital rape can be deemed to be rather ambiguous and evidently contradictory.

Where the courts stand

The courts have so far had a ‘touch and go’ approach when it comes to marital rape. In 2018, the apex court, while striking down adultery as an offence under IPC, touch upon contours of marital rape by stating that “curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to Constitutional values.”

The Supreme Court has time and again, whenever it has been seized of the matter, has refused to criminalise marital rape while holding that it was for the legislature to make laws.

In 2015, the apex court had refused to entertain a Delhi woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person. Her position was of a survivor as she complained that her husband repeatedly resorted to sexual violence, but she was helpless because of the legal position.

In 2019, the Supreme Court once again refused to entertain a plea filed by a lawyer, since the Delhi High Court was already seized of the matter.

In 2018, Gujarat High Court (in Nimeshbhai Desai vs State Of Gujarat; decided on 2 April, 2018) has recognised marital rape to be a “disgraceful offence” that has scarred the trust and confidence in the institution of marriage and also admitted women’s sufferings due to non-criminalisation of the offence. 

The government is hesitant to criminalise the marital rape because it would require them to change the laws based on the religious practices, including the Hindu Marriage Act, 1955 which says a wife is duty bound to have sex with her husband, the court had observed. The court could not prosecute the husband for rape and instead directed that section 354 of IPC, for outraging the modesty of the wife, be invoked.

In 2017, the Supreme Court in Independent Thought vs Union Of India (decided on October 11, 2017) read down the exception 2 to section 375 of IPC as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. 

This was done to make the penal law consistent with the provisions of Protection of Children from Sexual Offences, (POCSO) Act which criminalises sexual acts with a person below 18 years of age. Thus, only criminalising marital rape if the wife is below 18 years of age.

Data and figures

According to a National Family Health Survey report (2015), 5.4 percent of married women between 15-49 years of age in India reported that their husbands had physically forced them to have sexual intercourse against their will. At least 2.5 per cent women reported that their husbands physically forced them to perform any other sexual act without their consent.

Marital rape in other countries

The Justice Verma report cited the European Commission of Human Rights in C.R. v UK, which endorsed that a rapist remains a rapist regardless of his relationship with the victim. By an order of 1994, UK removed the exemption accorded to marital rape under its penal laws.

In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983. South Africa criminalised marital rape in 1993 and Australia abolished the marital rape immunity in 1976.

Our neighbouring country, Bangladesh, also still struggles with the exemption accorded to marital rape under the penal code it inherited from its British coloniser. In November 2020, the High Court Division of the Supreme Court of Bangladesh called upon the government to show cause as to why laws that allow for marital rape of women and girls aged above 13 should not be declared void and discriminatory, reported The Daily Star.

Deliberations over the years

The Justice Verma committee, 2013 had recommended that marital rape be made an offence under IPC and it be specified that relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The Committee had also stated that any intimate relationship of the complainant and the accused should not be regarded as a mitigating factor for justifying a lower sentence for the crime.

The Law Commission (172nd Report, 2000) had opposed criminalising marital rape stating “that may amount to excessive interference with the marital relationship” and instead recommended treating it as an offence just like any other physical violence by a man against his wife.

When a parliamentary standing committee considered both these reports, it concluded that if marital rape was made a crime, the family system will be under stress and it could lead to practical difficulties.

In 2016, the government told the Rajya Sabha the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to factors such as illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat marriage as a sacrament, reported The Tribune.

At least currently it does not seem like either the judiciary or the legislature is moving in any direction that would the further the cause of criminalizing marital rape and the void shall persist until law keeps weighing in marital relationship of accused and complainant as a yardstick for an abhorrent crime.

Related:

Do courts still see marriage as resolution for rape?

SC stirs the hornet's nest on rape by intimate partner

Why Indian courts tip toe around issue of marital rape

The courts do not have legislative sanction that criminalises marital rape, and they maintain the stance of ‘the ball is in their court’

Marital Rape
Image courtesy: https://www.indiatoday.in/
 

In the light of recent remarks by the Supreme Court questioning marital rape, it has become pertinent to discuss ‘marital rape’ and how the issue has played out in courts of law and the legislature.

The courts have always skirted the issue since penal law does not recognise it, and this has resulted in marital rape being effectively legitimised in the country. While on one hand, the legislature shies away from criminalising marital to avoid interference in domestic affairs, the court have left the ball in the Parliament’s court. The issue continues to remain in a legal limbo and India remains one of the few handful countries in the world that still legitimises marital rape.

Where the law stands

Exception 2 of section 375 under the Indian Penal Code (IPC) haunts the reality of several married women facing domestic abuse - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape, the law says. In this clearly worded exception, the law legitimises sexual offences committed within the confines a relationship considered ‘sacrosanct’ by the society and feeds into the ill-notions of marriage being an implied consent for sexual acts.

On the other hand, we have The Protection of Women from Domestic Violence Act, 2005 which includes under its definition of ‘domestic violence’ – sexual abuse – which is further defined as ‘any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman’.

Thus, the legislature’s stand on marital rape can be deemed to be rather ambiguous and evidently contradictory.

Where the courts stand

The courts have so far had a ‘touch and go’ approach when it comes to marital rape. In 2018, the apex court, while striking down adultery as an offence under IPC, touch upon contours of marital rape by stating that “curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to Constitutional values.”

The Supreme Court has time and again, whenever it has been seized of the matter, has refused to criminalise marital rape while holding that it was for the legislature to make laws.

In 2015, the apex court had refused to entertain a Delhi woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person. Her position was of a survivor as she complained that her husband repeatedly resorted to sexual violence, but she was helpless because of the legal position.

In 2019, the Supreme Court once again refused to entertain a plea filed by a lawyer, since the Delhi High Court was already seized of the matter.

In 2018, Gujarat High Court (in Nimeshbhai Desai vs State Of Gujarat; decided on 2 April, 2018) has recognised marital rape to be a “disgraceful offence” that has scarred the trust and confidence in the institution of marriage and also admitted women’s sufferings due to non-criminalisation of the offence. 

The government is hesitant to criminalise the marital rape because it would require them to change the laws based on the religious practices, including the Hindu Marriage Act, 1955 which says a wife is duty bound to have sex with her husband, the court had observed. The court could not prosecute the husband for rape and instead directed that section 354 of IPC, for outraging the modesty of the wife, be invoked.

In 2017, the Supreme Court in Independent Thought vs Union Of India (decided on October 11, 2017) read down the exception 2 to section 375 of IPC as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. 

This was done to make the penal law consistent with the provisions of Protection of Children from Sexual Offences, (POCSO) Act which criminalises sexual acts with a person below 18 years of age. Thus, only criminalising marital rape if the wife is below 18 years of age.

Data and figures

According to a National Family Health Survey report (2015), 5.4 percent of married women between 15-49 years of age in India reported that their husbands had physically forced them to have sexual intercourse against their will. At least 2.5 per cent women reported that their husbands physically forced them to perform any other sexual act without their consent.

Marital rape in other countries

The Justice Verma report cited the European Commission of Human Rights in C.R. v UK, which endorsed that a rapist remains a rapist regardless of his relationship with the victim. By an order of 1994, UK removed the exemption accorded to marital rape under its penal laws.

In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983. South Africa criminalised marital rape in 1993 and Australia abolished the marital rape immunity in 1976.

Our neighbouring country, Bangladesh, also still struggles with the exemption accorded to marital rape under the penal code it inherited from its British coloniser. In November 2020, the High Court Division of the Supreme Court of Bangladesh called upon the government to show cause as to why laws that allow for marital rape of women and girls aged above 13 should not be declared void and discriminatory, reported The Daily Star.

Deliberations over the years

The Justice Verma committee, 2013 had recommended that marital rape be made an offence under IPC and it be specified that relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The Committee had also stated that any intimate relationship of the complainant and the accused should not be regarded as a mitigating factor for justifying a lower sentence for the crime.

The Law Commission (172nd Report, 2000) had opposed criminalising marital rape stating “that may amount to excessive interference with the marital relationship” and instead recommended treating it as an offence just like any other physical violence by a man against his wife.

When a parliamentary standing committee considered both these reports, it concluded that if marital rape was made a crime, the family system will be under stress and it could lead to practical difficulties.

In 2016, the government told the Rajya Sabha the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to factors such as illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat marriage as a sacrament, reported The Tribune.

At least currently it does not seem like either the judiciary or the legislature is moving in any direction that would the further the cause of criminalizing marital rape and the void shall persist until law keeps weighing in marital relationship of accused and complainant as a yardstick for an abhorrent crime.

Related:

Do courts still see marriage as resolution for rape?

SC stirs the hornet's nest on rape by intimate partner

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