Marital Rape in India: What stand does the law take?
By Tithi Neogi
The 21st century in India has witnessed some significant judicial activism. A lot of such activism has been influenced by feminist movements that focus on the liberation of women. Recently, some of our laws and policies have undergone a sea change with the incorporation of the concept of “consent” in them. The decriminalization of homosexuality and adultery are supported by the opinion that sexual acts between two consenting adults cannot be of criminal nature. Yet, there is a prime issue that has yet to come to the forefront of this judicial activism, that has still not been scrutinized, perhaps due to the patriarchal and misogynist nature of this same judicial mechanism. This prime issue is that of marital rape.
What is Marital Rape?
The word rape has been derived from the Latin word ‘rapiere’, which means to seize. Rape was initially used as a term to describe the loot and plundering of property of others committed by invaders in a city.¹ Traditionally, societies have been averse to the concept of marital rape, i.e. husband raping his wife, because women have been considered the property of men in societies and legal systems across the world. Women did not have sexual autonomy, rather, their virginity was controlled and monitored by the patriarchy, since a woman’s virginity was perceived to store the honour of her father, her husband and her entire community. This is the reason why in communal riots, be it during the time of the Indian partition or Godhra, aggressor groups would humiliate, rape and mutilate women in order to take revenge from the enemy/minority group. Marriage acts as a societal licence for man to have sexual intercourse with his wife and that the wife’s consent for sex is a given and constant once she is married. Hence, if a woman was molested, the crime was not against her body or mind, but merely violation or theft of woman against the consent of her guardian/husband who had legal and social control over her.
Social attitudes refuse to accept that there could be lack of consent within marriage. Further, legality of marriage has been founded on the act of consummation while the inability to have sex provides grounds for its annulment. Sir Matthew Hale, a seventeenth century jurist, said “The husband cannot be guilty of rape committed by himself upon his lawful wife for their mutual matrimonial consent and contract the wife had given up her into this kind unto her husband, which she cannot retract.”²
Marital rape can be divided into three categories — (i), in which there is only use of force, i.e. husband coerces wife into sexual intercourse; (ii), battering rape, which includes physical and sexual violence; and (iii), sadistic rape, in which the husband forces his wife to take part in perverse, unnatural sexual acts.
The Law at Present
S.375 of the Indian Penal Code deals with rape. In this section, Clause (d) Fourthly states- “With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.” On the face of it, this provision merely states that consent obtained by fraud is no consent at all, i.e. if a woman consents for sexual contact under the belief that he is her lawfully married husband, then such consent is not a valid consent under law.³ However, upon scratching the surface of this provision, one can see that the law promotes the notion that a husband has the right to have sexual intercourse with his wife regardless of his wife’s consent, and that if a man is married to a woman and he forces himself upon her for sex, and the woman has good reason to believe that the man is her husband, she must and will submit before this man, and it would not be rape despite the sexual act being forced.
Further, Exception 2 to S.375 of IPC states — “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It thus keeps outside the ambit of rape a coercive and non-consensual sexual intercourse by a husband with his wife (who is not a minor) and thereby allows a husband to exercise, with impunity, his marital right of (non-consensual and undesired) intercourse with his wife.
The Protection of Women From Domestic Violence Act, 2005 in Chapter II ‘Domestic Violence’ includes sexual abuse within the ambit of the definition of domestic violence given in S.3. Under Clause (ii) of explanation I. of S.3, sexual abuse is said to “include any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.” While marital rape is a severe form of sexual abuse, victims of marital rape will not be able to seek relief under this act since this act is not punitive in nature and merely focuses on protecting women and ensuring that they have a shelter and monetary compensation, i.e. this act provides civil remedies to the woman. S. 376 of IPC provides for punishment for rape with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. Since marital rape is not recognized as a valid form of rape by the Indian legal system, victims of marital rape are deprived of actual justice.
S. 376-B of IPC recognizes and punishes marital rape only in case of judicial separation. Sharing a household, or consanguinity automatically implies that consent for sexual relations is always present. The impact of this can be seen strongly in cases of cruelty towards husband by wives. In Samar Ghosh v. Jaya Ghosh,⁴ the Supreme Court ruled that withholding sex from husband and unilateral decision of not wanting children by wife amounts to mental cruelty on husband. Some of the concerns raised by legal fraternity found resonance with the questions asked by feminist lawyer Flavia Agnes — that whether the judgement could be misread and misused in the future as to promote the notion that the only objective of marriage is procreation. This will further weaken the demand for recognition of marital rape as an offence.
Thus so far in India victims of marital rape have been remedy less, both by society and by the law. In Sree Kumar v. Pearly Karun⁵ the man was held not guilty despite forcing his wife to have sexual intercourse with him without her consent because the wife was not living under judicial separation.
Voices of Change
The J.S. Verma committee report of 2013 recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts, therefore with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.
Stephen J. Schulhofer, a legal scholar at Harvard University, and author of “Unwanted Sex-The Culture of Intimidation and the Failure of Law” believes that an adequate system of law can place sexual autonomy at the forefront of concern and afford it comprehensive protection, in the same way that we protect property, labour, informational privacy, the right to vote and every other right that is central to the life of a free person.
In Joseph Shine v. Union of India,⁶ Justice D.Y. Chandrachud stated that woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage cannot be curbed. This inherently implies that marriage does not necessarily mean having an obligation to grant sex to one’s husband.
Privatizing Marital Rape and granting Civil Remedies: What could be the Consequences of Criminalizing Marital Rape?
At present victims of marital rape only have civil remedies in the form of protection, monetary compensation, divorce etc. Marital rape has not been accorded the gravity and the same level of severity that “stranger-rape” has. Parliamentarian Sumitra Mahajan during a debate in the Lok Sabha regarding addressing sexual abuse in the matrimony, said, “We have our own peculiar family system and the counseling is done within the family. The counseling should be done within the four walls of the house.”⁷
The Committee on the 167th Report on the Criminal Law (Amendment) Bill, 2012 echoed similar views: “The Committee felt that if a woman is aggrieved by the acts of her husband, there are other means of approaching the court. In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress, and the committee may perhaps be doing more injustice.”
All the religious personal laws and the secular law addressing marriage and divorce in India deem ‘cruelty’ by a spouse on another to be a ground of divorce (S.13, Hindu Marriage Act 1955; S.2, Dissolution of Muslim Marriage Act 1939; S.32, Parsi Marriage and Divorce Act 1932; S.10, Indian Divorce Act 1869; S.27 Special Marriage Act 1954).
The Hindu Marriage Act however does not give a specific definition of cruelty and hence the meaning of cruelty has varied in substance and severity across judgements as it has been left to the interpretation of judges. In Vinit Joglekar v. Varsha Joglekar,⁸ the wife filed for divorce on the ground of cruelty. She accused her husband of having abnormally increased demands for sex, forcing her to watch pornography, and forcing her to engage in unnatural carnal relations that he used to read about in pornographic books. Both the lower court and the appellate court granted the wife divorce. The Indian Divorce Act of 1869 which governs the divorce of Christians is more specific about what kind of cruelty can form the basis for divorce. The act allows the wife to initiate divorce if the husband commits rape, bestiality or sodomy with anybody, including the wife (S.10). In Grace Jayamani v. E.P. Peter,⁹ the wife filed for divorce on the ground of ‘non-consensual sodomy’ and the court granted her the same.
Acts of non-consensual sex are often paired with other acts of domestic violence so that they have some legal significance in the eyes of the court. On one hand, an advantage of acts of sexual abuse having only civil remedies is that the wife facing sexual violence does not have to prove her case beyond reasonable doubt, as required by criminal law. However on the other hand, the wife may not succeed in getting a divorce or an order of maintenance if she establishes her claims on acts of non-consensual sex only.
We find that very few cases of cruelty in marriages are actually based on sexual abuse. This is because societal values often indicate that it is the duty of the wife to satisfy her husband. Most women hardly even understand what sexual autonomy is and that they have a say in their carnal relations with their husbands. For married women in India, sex is a tool that will give them a heir and help the husband continue his patrilineal family line, it is something that the wife is obligated to perform for her husband. Sex in India is never portrayed as something that women can enjoy. On this basis, even if marital rape is criminalized, it cannot be said to give relief to married women since the immediate family, the society and even the police might counsel her to believe that performing sex is her duty, secondly, it might be that the woman is not in a position where either she can support herself financially or her family is willing to support her and punishing/arresting her husband would be disastrous for her in such a case. Thus, if marital rape were to be criminalized and if a married woman even manages to file a complaint, in all probability she is most likely to be disowned by her family and ostracized by the society; she might have to struggle for shelter and a livelihood and in doing so she might be deprived of her dignity due to lack of support from everywhere. Before marital rape is sought to be criminalized, it is essential that the perception of marital rape undergoes a change in the society and that there be more agencies that can help women who survive abuse get on their feet. One must remember that the law is for the society, the society is not for the law, as implied by Eugen Ehrlich’s oft quoted dictum — the “centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.”
[1] Sarbani Guha Ghosal, Socio-Political Dimensions of Rape, 70 I.J.P.S. 107, 109 (2009).
[2] SIR MATTHEW HALE, HISTORIA PLACITORUM CORONAE 629 (Professional Books 1971) (1736).
[3] P.S.A. PILLAI, CRIMINAL LAW 703 (K.I. Vibhute ed., LexisNexis Butterworths Wadhwa 2012).
[4] Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511 (India).
[5] Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 (India).
[6] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676 (India).
[7] Saptarshi Mandal, The Impossibility of Marital Rape, AFS., Oct. 23, 2014, at 255, 263.
[8] Vinit Joglekar v Varsha Joglekar, AIR 1998 Bom 73 (India).
[9] Grace Jayamani v. E.P. Peter, AIR 1982 Kar 46 (India).
The author is a Year III B.A., LL.B (Hons.) student at the KIIT Law School, Bhubaneshwar.
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