Authored by Akshita Kaushik (Intern), a 5th-year Law student at Delhi Metropolitan Education, affiliated to Guru Gobind Singh Indraprastha University, New Delhi
Abstract
Marital rape, often referred to as spousal rape, persists as a significant issue globally, despite increasing recognition of women's rights and autonomy. This paper explores the historical, legal, and cultural foundations underlying marital rape and examines its impact on women's lives. It delves into the jurisprudential understanding of the offence, highlighting societal constructs that have perpetuated impunity for perpetrators. The paper also analyses international laws and conventions aimed at addressing marital rape, along with the legislative and judicial landscape in India. Through a review of legal precedents and case studies, it sheds light on the complexities surrounding the criminalisation of marital rape and the challenges faced in its prosecution. Finally, the paper proposes measures to address the issue, advocating for legislative reforms, judicial activism, and societal awareness campaigns to ensure the protection and empowerment of women within marital relationships.
Introduction
"Deifying women has no meaning if they are not empowered. They are our equal half; some would delightfully say our better half."
- Justice Rajiv Shakdher
According to the National Family Health Survey (2019-2021), among married women ages 18-49, who have suffered sexual assault, 83% name their present spouse as the offender. Globally, more than a hundred governments have made marital rape illegal, although India still struggles to do the same.
Marital rape is also known as spousal rape. It is sexual intercourse with one's spouse without the spouse's consent. Non-consent is fundamental and doesn't necessarily require physical force. Marital rape is categorised as a type of domestic violence and sexual abuse under the Protection of Women from Domestic Violence Act, 2005.
While sexual relations within marriage were once considered an entitlement for spouses, non-consensual intercourse with a spouse is now recognised as rape in numerous societies globally, with growing legal repercussions. However, more conservative cultures may reject this viewpoint.
Marital rape affects both men and women, without regard to gender, although it impacts women more frequently. It often occurs as part of ongoing abuse within relationships. The issue is influenced by a combination of factors including governmental policies, cultural norms, and societal beliefs, all of which shape individual experiences differently. The reluctance to recognise and prosecute non-consensual sex within marriage stems from traditional notions of matrimony, interpretations of religious teachings, perceptions of gender roles, and cultural expectations regarding the authority of husbands over wives — perspectives still prevalent in many regions globally.
History of Marital Rape
The 1960s and 70s saw significant shifts in societal attitudes towards marriage and sexuality in Western nations, spurred by the advocacy of second-wave feminism. This period led to the recognition of women's autonomy over their bodies and the subsequent elimination of legal exemptions for marital rape. Throughout the late 20th century, many countries began criminalising marital rape, marking a crucial step in addressing this previously overlooked form of sexual violence.
The attitudes towards marriage and sexuality began to shift in Western nations, particularly during the 1960s and 70s, largely due to the advocacy of second-wave feminism. This movement led to the recognition of a woman's right to autonomy over her body, resulting in the elimination of legal exemptions or defences for marital rape.
Throughout the late 20th century, numerous countries started criminalising marital rape, a concept previously rarely addressed within legal frameworks. This legal change took various forms, including the removal of exemptions from rape definitions, court rulings, explicit legislative amendments, or the establishment of specific marital rape offences, albeit often with lesser penalties. While some of the countries like Pakistan, Bangladesh China, Laos, Haiti, Iran, Singapore, Egpyt etc remain unclear on whether marital rape falls under general rape statutes, in certain jurisdictions, coercive non-consensual sexual acts may be prosecuted under broader laws addressing violence, such as assault and battery statutes.
Jurisprudential Understanding of the Offence
To comprehend if the offence should be criminalised or not, a probe into the historical, moral, and cultural basis should be done which gives a better picture of where the understanding of marital rape stems from. These theories and conceptions are majorly societal and have been dictating every person’s ideas surrounding the concept:
Social Constructionism Theory
Social constructionism theory introduces a cultural perspective to the roles we adhere to, emphasising the influence of society on human perceptions and potential. It acknowledges that societal changes lead to the emergence of novel practices and behaviours. This theory emphasises the idea that human perspective and knowledge are not inherent but are shaped by societal constructs.
The constructs surrounding marriage often reflect a patriarchal viewpoint, tailored to serve the interests of the powerful in society. Traditionally, women were viewed as dependent entities akin to minors or even slaves, lacking autonomy over property and earnings, typically labelled as "feme covert" in common law systems. This entrenched perception led to legal interpretations wherein women were seen as subordinate to their husbands post-marriage, implying a presumed consent to all marital acts, including sexual violence.
Doctrine of Coverture
The concept of social constructionism finds support in the Western notion of coverture, which posits that upon marriage, husband and wife merge identities and are legally recognised as one individual. This doctrine treats women as property, subsuming their identity within that of their husbands, perpetuating the idea that women lack autonomy or agency. This perception stems from the belief that women require constant protection, with men in the family assuming this role due to the supposed incapacity of women to safeguard themselves.
Through developmental processes, specific gender roles become entrenched over time through social interactions. Women are often taught to conform and adapt to the expectations of men within family structures, where male dominance is traditionally emphasised. Women are instructed to be cautious and mindful so as not to displease the men in their families. In the context of marriage, wives are typically expected to assume submissive roles, while husbands are encouraged to assert dominance.
Marital Rape: An offence
Marital rape is perceived as an extreme manifestation of gender role socialisation, where it may be seen as a wife's duty even if she does not consent. These roles are perpetuated through transmitted values, beliefs, traditions, customs, and behaviours passed down from one generation to the next. People internalise their social roles through everyday interactions and communication.
International Conventions
CEDAW: International Convention
In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) advised India to abolish legal impunity for marital rape. CEDAW's Article 1 defines "Discrimination Against Women" as any differentiation based on gender that undermines women's ability to exercise their human rights and fundamental freedoms in various spheres, regardless of their marital status.
India's legal provision granting marital immunity conflicts with CEDAW's General Recommendation 19, which identifies mental and sexual harm against women as discriminatory acts. It emphasises that such harm denies women equal enjoyment of their human and fundamental rights. General Recommendation 35 further reinforces this, highlighting that marital rape hinges on the absence of voluntary consent and the presence of coercive elements.
Despite not signing CEDAW's optional protocol, India is still bound to uphold women's rights regardless of marital status under Article 2(f). Clause (f) of Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) mandates state parties to take specific actions to eliminate discrimination against women. This includes implementing all necessary measures, such as enacting new laws or amending existing ones, to modify or abolish any laws, regulations, customs, or practices that contribute to discrimination against women. In simpler terms, it requires governments to actively review and change any legal or cultural norms that disadvantage or discriminate against women. This clause underscores the importance of proactive measures in achieving gender equality and ensuring that women have equal rights and opportunities in all aspects of life.
Marital immunity in India also violates the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). According to Article 26 of the Covenant, member states must ensure equal protection of dignity and status for all citizens regardless of their marital status or other factors. Marital rape creates a distinction between married and unmarried women, thus constituting discrimination.
As a member state, India is prohibited from derogating from any fundamental rights outlined in Article 5. Furthermore, India's legal framework contradicts Article 1 of the Universal Declaration of Human Rights due to the discriminatory nature of exception 2 to section 376.
India's laws also run counter to the Fourth World Conference on Women held in Beijing, which urges countries to enforce CEDAW provisions, including the Optional Protocol, and to amend or remove discriminatory laws
Laws on Marital Rape: Indian
The supreme law of the country is the Constitution of India. The Marital Rape Exception of the Indian Penal Code violates the following articles of the constitution –
Article 14
This article guarantees to an individual the right to equality and equal protection of laws. One of the exceptions to Article 14 is the notion of Intelligible Differentia. The state by retaining exception to Section 375 in IPC grossly violates Article 14 as there is no intelligible differentia or rational nexus in making a distinction between a non-consensual forcible sexual intercourse when the perpetrator is the third person in one case and the husband of the woman in other cases criminalising the former offender and securing the later when the psychological trauma of both acts being the same.
Article 21
This article states that no person shall be deprived of their life except according to the procedure established by law. In India, Section 375 of the IPC lays down the definition of rape. The second exception to the section provides that what constitutes a marital rape. It states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In October 2017, this age was increased to 18 years by the Supreme Court.
History of Marital Rape in India
Judiciary
Delhi High Court:
Since 2015, the Delhi High Court has been engaged in deliberations in the case titled RIT Foundation vs The Union of India, [2022 SCC Online Del 1404]. In the above-stated judgement, two judges of the Delhi High Court commenced hearings on petitions filed by individuals and civil society organisations contesting an exemption. In the above case, a controversial split verdict emerged, with one judge advocating for the criminalisation of marital rape because it infringed upon a woman's right to consent, while the other opposed it, contending that marriage inherently implied consent. Consequently, the matter was escalated to the Supreme Court.
Supreme Court:
In September 2022, the Supreme Court issued a landmark ruling in the case titled X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., [Special Leave Petition (Civil) No. 12612 of 2022], affirming women's right to safe abortions irrespective of marital status. The ruling stipulated that, under the Medical Termination of Pregnancy Act, the definition of rape should encompass marital rape.
Justice JS Verma Committee:
In 2012, the Justice JS Verma Committee was entrusted with formulating amendments to India's rape laws. While several of its recommendations influenced the passage of the Criminal Law (Amendment) Act in 2013, certain suggestions, including those regarding marital rape, were not acted upon.
Parliament:
The issue of marital rape has been raised in Parliament as well. In response to inquiries during a 2015 parliamentary session, the notion of criminalising marital rape was rejected, citing the perception of marriage as a sacred institution in Indian society.
Judgements on Marital Rape
There has been a plethora of cases on this point which have been cited on this point in India, which are the following:
Independent Thought vs Union of India:
In this case, the Supreme Court held that sexual intercourse with a girl below 18 years of age is a rape, even if she is the wife.
RIT Foundation vs Union Of India (2019):
Delhi High Court directed the government to consider amending laws to make marital rape a criminal offence.
Dilip Pandey vs State of Chattisgarh 2021:
The court ruled that any sexual act performed by a legally married spouse is not considered rape, even if it is done against the woman’s consent or under duress.
Nameshbhai Desai vs State of Gujarat (Gujarat High Court case):
It was held marital rape is a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.
Hrishikesh Sahoo vs State of Karnataka:
It was held that the marital rape exception is regressive and is violative of Article 14.
X vs The Principal Secretary Health and Family Welfare Department, Govt of NCT of Delhi & Anr.:
The Supreme Court of India ruled that unmarried women as well as survivors of marital rape have the legal right to terminate their pregnancies at 20-24 weeks under Rule 3B of the Medical Termination of Pregnancy (MTP) Rules.
In various rulings, the Supreme Court has interpreted Article 21 of the Constitution expansively, extending beyond its literal protection of life and liberty. The Court has affirmed that Article 21 encompasses rights such as health, privacy, dignity, secure living conditions, and a clean environment.
Recent judicial decisions have recognised that these broader rights to life and personal liberty encompass the right to refuse sexual intercourse and to be free from unwanted sexual conduct.
Proposing Remedies for the Issue of Marital Rape
Addressing the issue of marital rape within legal frameworks requires a multifaceted approach that tackles both legislative reforms and societal attitudes. Firstly, legislative changes are imperative to ensure that the law recognises marital rape as a criminal offence, thereby providing victims with legal recourse and protection. This entails abolishing any marital immunity clauses within existing laws and explicitly criminalising non-consensual sexual acts within marriage. Additionally, laws should be amended to ensure that the age of consent applies uniformly to all individuals, regardless of marital status, thereby protecting minors from sexual exploitation within marriage.
Moreover, judicial activism is essential to interpret existing legal provisions in a manner that upholds the rights and dignity of individuals, including the right to bodily autonomy and freedom from sexual violence within marital relationships. Courts should interpret constitutional provisions, such as Article 21, expansively to encompass the right to refuse sexual intercourse and to be free from unwanted sexual behaviour, thereby providing a robust legal basis for addressing marital rape.
Conclusion
Addressing marital rape demands a comprehensive approach involving legislative reforms, judicial activism, and societal awareness campaigns. By abolishing marital immunity clauses, criminalising non-consensual sexual acts, and ensuring uniform application of age-of-consent laws, legislative changes can provide legal recourse and protection to victims. Judicial interpretation of constitutional guarantees, such as the right to bodily autonomy, further strengthens legal avenues for addressing marital rape. Additionally, societal awareness campaigns play a crucial role in challenging norms that perpetuate impunity for perpetrators and fostering a culture of respect for women's rights. Through collective action, we can create a safer and more equitable society where all individuals, regardless of gender or marital status, are protected from sexual violence within relationships.