Crimes from Colonial Hangover, Part II: Marital Rape

We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim” ~Lord Chief Justice Lane, the President of the Family Division, Court of Appeals (England and Wales)

Origin of the Law against Rape:

The word rape originates from the Latin word rapere, which meant “to snatch, to grab, to carry off”.

In Roman law, raptus (or raptio) primarily meant kidnapping or abduction; sexual violation was a secondary issue. Essentially in ancient world, sexual violation of women wasn’t the actual issue as women were treated as “property or objects” belonging to their husbands/fathers, which could be “stolen or carried away”. And that is how Common Law has historically perceived women: as objects.

The offence of rape has long been considered a crime under the ambit of Indian Law, by virtue of the Indian Penal Code, 1860 (“IPC”). The section dealing with rape under the IPC defines rape as being sexual intercourse that takes place against the woman’s will or consent; or after obtaining her consent through threatening her or someone she cares for; making her believe the perpetrator is her legal husband; or that takes place when she is unconscious or under the influence of any drugs or alcohol; or that takes place if she is under eighteen years of age.

One of the exceptions to this provision in law remains that it is not legally considered rape if the perpetrator of rape is the husband of the woman on whom sexual intercourse is being forced [by the husband], so long as she is aged above fifteen. This exception is commonly known as “Exception 2” under the IPC. It is currently under challenge, being heard, in the case of RIT Foundation vs Union of India (Writ Petition Civil №284 of 2015), before the Delhi High Court. Recently, a Division Bench of the Supreme Court of India, comprising Justices Madan B Lokur and Deepak Gupta, on October 11, 2017, in the matter of Independent Thought (Petitioners) and The Child Rights Trust (Intervener) vs. Union of India and Others, read down the Exception 2 to Section 375 of Indian Penal Code,1860 (hereinafter referred to as IPC). The provision was struck down for being arbitrary, capricious, whimsical and in violation of the rights of the girl child and for being unfair, unjust and unreasonable and, therefore, in contravention of Articles 14, 15 and 21 of the Constitution of India. But the bench had refused to comment about violation of rights of adult married women by the same exception.

History of Marital Rape under Common Law:

The defense of the marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England during the early 1600s. Sir Hale had written: The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.Such a statement goes to show the law of development and understanding with respect to the Principle of Free Consent, in the early 1600s.

The above statement of Sir Mathew Hale was considerably brushed aside in the case of R v R ([1991] UKHL12). Lord Keith delivered the leading speech in this judgement, with which the other four Law Lords of the House of Lords agreed. He stated that the contortions being performed in earlier cases, in order to avoid applying the marital rights exemption, were indicative of the absurdity of the rule. He referred to a case under Scottish law — S. v. H.M. — in which the High Court of Justiciary held that there was no marital rape exemption in Scottish law, even if the married couple was cohabiting. In the Scottish case, the Lord Justice-General Lord Emslie questioned if a marital rape exemption was ever part of Scottish law, but even if it was, concluded that there was no good reason for it to continue; “Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances.”

Lord Keith, in R vs R, stated that there was no reason why this reasoning could not apply in English law. He stated that the definition of marriage had moved from Hale’s time from where the wife was subservient to her husband, into a contract of equals.

Discussions with respect to the criminalization of Marital Rape has been on in India for sometime. The Justice Verma Committee, constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women, submitted its report on January 23, 2013. The committee recommended that the exception to marital rape be removed and that marriage should no longer be considered as irrevocable consent to sexual acts. Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity or not, the relationship between the victim and the accused should not be relevant.

The Gujarat High Court as recently as in November, 2017 stated that Marital rape is a “disgraceful offence”, and not criminalising it has made “a large population of women” suffer. The bench made the statement while hearing a plea by a man who sought to have his wife’s case against him for forced oral sex quashed because they were married. It is pertinent to note, that oral sex is a violation of Section 377 of Indian Penal Code.

Brief Submission of the Petitioners before Delhi HC:

In RIT Foundation vs Union of India, Ms. Karuna Nundy, counsel for petitioners, RIT Foundation and AIDWA (intervenor), stated during the hearingthat Exception 2 to Section 375, Section 376B of IPC and Section 198B of the Criminal Procedure Code, 1973 classify rape victims into three categories based on their marital status i.e. married, married but separated, and unmarried. Ms. Nundy argued that the three classification of women who are victims of rape would be constitutional if and only if the classification is based upon sound intelligible differentia which has a rational relation to the object sought to be achieved by the impugned provisions, so as to satisfy the test laid down under Article 14 of the Constitution of India, 1950.

Ms. Nundy relied on a 2014 study conducted by Research Institute for Compassionate Economics which revealed that most incidents of sexual violence were committed by husbands of the survivors, and the number of women who experienced sexual violence by husbands was forty times the number of women who experienced sexual violence by non-intimate perpetrators. Reference was also made to the UN Women Global Database which also reports that the proportion of women aged 18–74 experiencing intimate partner physical and/or sexual violence at least once in their lifetime is as high as 37%.

Global Situation:

English Law, from which our Indian Penal Code derives its bases, has done away with considering marriage as an exception to rape. In December 1993, the United Nations High Commissioner for Human Rights (UNHCR) published the Declaration on the Elimination of Violence Against Women. This establishes marital rape as a human rights violation. Even countries which are supposedly less developed than India, like Bhutan and Namibia, have either expressly criminalized Marital Rape, or have done away with the marriage exception.

Objections to the criminalization of Marital Rape:

The most basic objections to criminalization of marital rape by Men’s Rights Activists and the Central Government is that (a) it will allow women to misuse the law and frame their husbands, (b) it will destroy the “institution of marriage”, and (c) it will be difficult to prove consent between husband and wife.

Practically every single law in existence can and possibly has been misused, at some time or the other from defamation laws, kidnapping (pretending to get kidnapped to extract money to family), arson (burning own property to gain insurance money), to Domestic Violence Act, and even sedation laws. Mere possibility of a law being misused is not a justifiable ground to not penalize an otherwise criminal act. It is the duty of the Legislature to provide sufficient checks and balances to ensure that the law is strong on the procedural side, at least enough to protect the victims and the innocents while punishing the guilty. As numerous individuals, including Ms. Nundy, have pointed out, it is not the criminalization of an illegal act that may hamper marriage, but State sanction of violence in marriage. A marriage in which the wife does not have a right over her own bodily integrity is not a relationship that the State should strive to protect. Last but not the least, proving marital rape is no more difficult than proving rape of a live-in partner, which is a crime even though the Courts give live-in relationships the status of marriage. Again, it is important to reiterate that difficulty to prove an offense does not make the said offense legal.

Conclusion:

India is still following a 158-year-old law which has been rejected by the very people who gave it to us. Difficulty to prove an offense does not make it any less of an offense. Possibility of misuse of a law does not reduce the requirement of a well framed law. Relationship of the victim and the perpetrator can never make an otherwise guilty, innocent.

If murdering one’s wife is wrong, if assaulting one’s wife is wrong, if forgery against one’s wife is wrong, if impersonation of one’s wife is wrong, then rape of one’s wife is also wrong.

It is ironic perhaps, to realize that Indian men have been granted divorce by the Supreme Court, on the sole ground that their wife “demanded too much sex”. Essentially, the Supreme Court has recognized the right of the Husband to say no to sex, but not the right of the Wife.

It can be argued that criminalization of marital rape primarily is not the function of the judiciary but of the legislature. This sentiment can be best answered with the words of Lord Chief Justice Lane, the President of the Family Division, Court of Appeals (England and Wales);

Criminalisation of marital rape <words supplied> is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”