This article has been written by Mustafa Chitalwala., a student of Symbiosis Law School, Pune.
“Rape remains a rape, whether it is your wife or another woman.”
The first thought that occurs when we hear the word ‘Rape’ is that it was committed by a stranger. One usually does not consider rape taking place within a marriage. Disturbingly, after 72 years of Independence, Marital Rape is still not criminalized in India. Marital Rape is defined as sexual intercourse with one’s spouse without their Consent. India is one of the 36 countries in the world where it is acceptable to rape a woman, as long as it is your wife. Making it clear that a woman has no right to her own body, and her will is dependent upon her husband’s will. In India, where women are treated as Goddess, the biggest irony is that every 2 minutes, one case of crime is reported against a woman.
Marriage in India is considered as a sacred rite. However, it hides beneath sexual cruelty and brutality. In India, 1 out of 3 men confesses to assaulting their wives. During the lockdown, women are more prone to domestic violence and marital rape. Marital rape is the most prevalent crime against women and also the most under-reported crime in India. In 2020, we still wonder why Victorian legislation is still prevalent in India?
THE HISTORY OF MARITAL RAPE
The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, the Chief Justice in 17th Century, England. Lord Mathew Hale wrote that: ‘the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract’. However, for the first time, marital rape was prosecuted in R v. Clarke, where the court held that consent was revoked due to non-cohabitation.
In India, the first report that felt this problem needed to be dealt with was the 42nd Law Commission Report. This report put forward the need to exclude marital rape from the ambit of Section 375 and punish this offense in a separate section.
The 172nd Law Commission was directly faced with the validity of Section 375, Exception 2 clause. It was alleged that there was no reason for rape to be shielded from the legal operation from the husband’s violence against women were to be criminalized. The Law Commission dismissed the claim as it was afraid the criminalization of marital rape would cause “excessive interference with marriage institutions.” This report highlights the interplay between Rape and the Sacredness of the marriage institution.
INDIA’S LEGAL POSITION ON MARITAL RAPE
The Indian Penal Code under Section 375 defines rape as a gruesome criminal offense. A man commits rape if he has had sexual intercourse without a women’s consent or if she is a minor. However, Section 375, in Exception 2, exempts unwilling sexual intercourse with a wife over the age of eighteen. Therefore, making it legal to rape their wives, if she is above the legal age.
The Protection of Women from Domestic Violence Act was passed in 2005, which took notice of marital rape but not as a crime, but as a civil wrong. Under this Act, a woman going through marital rape can go to court and only obtain a judicial separation from her husband. This is only piecemeal legislation, and much more needs to be done by the Parliament concerning marital rape.
Our law recognized the increasing number of crimes against women and to protect their Rights, enacted the Criminal Amendment Act, 2013, also called the Nirbhaya Act, which created strict punishments in cases of sexual violence. Surprisingly, the same law failed to criminalize marital rape even after Justice J.S. Verma Committee Report recommended abolition of the exception of marital rape.
The world is changing continuously, and our laws should as well. One such change was introduced by MP Dr. Shashi Tharoor, who introduced a private bill titled “The Women Sexual, Reproductive and Menstrual Rights Bill, 2018”. This bill recognized marital rape as a crime and gave more decisional autonomy to women in the termination of pregnancy. Unfortunately, this bill was turned down, multiple reasons were given and the parliamentarians debated against the enactment of the bill.
INFRINGEMENT OF FUNDAMENTAL RIGHTS
In accordance with the Constitution of India, which states that any law passed must be in conformity with the principles set out in the law of the land, if any law is passed which contradicts or is unconstitutional, it should be declared ultra-virus or void. However, the exemption under Section 375 of the IPC, violates the basic fundamental rights in Articles 14 and 21.
Article 21 of The Indian Constitution states “No person shall be deprived of his life or personal liberty except for the procedures established by law.” It incorporates the Right to live with dignity, which standout amongst the most fundamental components of the Right to life. In Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, the honorable Supreme Court of India held “Rape is a criminal offense against basic human rights and is a violation of the victims most valued fundamental rights.”
The Right to Privacy is an implied right under Article 21, and it encompasses the right to sit unbothered and not aggravated. The Supreme Court took a stand in the State of Maharashtra v. Madhukar Narayan Mardikar and held that every woman is entitled to her sexual privacy and should not be violated by anyone as and whenever they wished. Surprisingly, the present criminal law ignores this said judgments and refuses to criminalize marital rape.
Article 14 of the Constitution provides equality and equal protection of laws to all the Citizens of India. However, the exception clause of Section 375 clearly does not protect the wives who are being raped by their Husbands. If a law contradicts the constitution of India, it should be declared ultra-virus by the courts.
- A New legislation or and an Amendment to the Indian Penal Code Section 375, which should criminalize marital rape, awarding severe punishments in order to protect married women.
- Women subjected to this patriarchal mentality or victims of marital rape should be given medical and psychological support
- Schools and Colleges should educate and teach women self-defense in order to protect themself from physical violence. How men should be given the right sexual education and be taught about the importance of consent.
- In order to prevent false reports of marital rape, proper instruction should be given to police officers and standardized procedures for conducting investigations should be enforced.
India a country making glorious decisions in the legal arena such as the Triple Talaq, Adultery, and LBTQ rights. However, on the other hand, there is discontent that the Central Government has views against Marital Rape, stating doing so would ‘destabilize the institution of marriage’. Thus, it concludes that Indian laws have failed married women. Women are still being treated as the property of their husbands. During the lockdown, multiple women are facing domestic violence and marital rape in the first 2 months of the lockdown, there was a 130 percent rise in domestic violence cases.
India is the world’s largest democracy which upholds the principles of equality should amend this loophole. They should refrain from putting rape in different categories and criminalize marital rape as recommended in the 172nd and Justice J.S. Verma Committee Report. Raising our voices against this injustice against women is the need of the hour, so our society does not face another Nirbhaya or Priyanka Reddy tragedy to bring about a wave of revolution around the country.
 Chaitanya Mallapur, I., 2020. Crimes Against Women Reported Every Two Minutes In India. [online]Scroll.in. Available at: <https://scroll.in/article/753496/crimesagainst-women-reported-every-two-minutes-in-india> [Accessed 13 June 2020].
 Equality Now. 2020. Marital Rape Is Not A Crime In India. It Needs To Be.. [online]Available at: <https://www.equalitynow.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be> [Accessed 12 June 2020].
 Hale, Matthew, 1 History of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972)
 HCA 47, (1927) 40 CLR 227
 Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http://lawcommissionofindia.nic.in/1-50/report42.pdf (last visited on June 10, 2020).
 Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at http://www.lawcommissionofindia.nic.in/rapelaws.htm (last visited on June 10, 2020).
 1996 AIR 922, 1996 SCC (1) 490
 AIR 1991 SC 207