Introduction
Marriage is a sacrament ceremony in India. It is relationship of trust, comfort and mutual companionship. However, consent in marriage has become a big legal issue of law. Marital Rape is a sexual assault where the husband forces him on her wife. Lack of consent is an essential element, it does not need to include physical violence.
According to the Indian law system it is not a crime but in the different societies of the world it is considered as crime. It is one of the most controversial law because of the conflict between traditional perception of marriage and modern principles of equality, dignity and privacy. Law has changed according to the different aspect of society but Marital Rape exception has continued with a little reform. So the question is the Marital Rape exception should be continued or changed?
Current Legal Position
Current legal position of marital rape is different from the general view on rape. It is a very heinous crime if it is done to any person without their consent, but the law changes if the person commiting the act is husband of victim.
Rape is defined under Section 63 of Bhartiya Nyaya Sanhita (2023), while exception 2 of Section 63 talks about sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. In Indian Penal Code, age of wife was 15 years. However, situation is different where the couple is living separately, Section 67 defines if the couple is married but living separately then the husband is guilty of rape if his wife does not give consent to sexual intercourse.
Judicial Developments
Independent Thought V. Union of India (2017) 10 SCC 800
It is a significant Supreme Court judgment concerning the marital rape exception under Section 375 of Indian Penal Code. In this case the petitioner, Independent Thought, is an NGO, which works for right of Women.
At that time Exception 2 of Section 375 read : Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.
Supreme Court observed that in some other acts like Protection of Children from Sexual Offence Act, 2012 (POCSO) treats girl below 18 years as a child. Marital Rape exception 2 created a situation where sexual intercourse with girl below 18 years is an offense, but if it is done by her husband, he was protected with an Exception. Supreme Court read down this exception and held that Sexual intercourse with a wife below 18 years of age, even with consent of wife would be considered as rape, irrespective of her marital status, because as it relates to the girl child below eighteen years, is unreasonable, unjust, unfair and violative of the rights of the girl child . However it does not give relief to marital rape involving adult women.
Nimeshbhai Bharatbhai Desai V. State of Gujrat (2018)
In this case the petitioner, wife of Nimeshbhai Bharatbhai Desai complained of serious sexual violence by her husband. According to her, she was forced into sexual acts against her wishes, including forced sexual intercourse and other non – consensual sexual acts.
Court observed that sexual intercourse by husband with her adult wife even without consent is not an offence under Section 375 Exception 2 but that does not give husband unrestricted control on wife's body. A women does not lose her right on her own body.
Court also observed that the husband committed some other non – consensual acts which are an offence, for example – unnatural act ( against the order of nature**)** fall under section 377 of IPC and forcing wife into sexual acts could be treated as cruelty under Section 498A of IPC.
In this case the court did not criminalised Marital Rape but their observation demonstrates that marriage cannot completely eliminate a woman's right to make decisions concerning her own body.
RIT Foundation V. Union of India (2022 ) SCC 1404
In this case some petitions were filed in Delhi High Court challenging Exception 2 of Section 375 of Indian Penal Code. Exception 2 said that forced sexual intercourse by husband on her wife, above 18 years is not an offence. Petitioners said that this Exception is unfair for women. They argued that it violates the basic rights of women under Article 14, 15, 19 and 21 of constitution – right to equality, dignity and privacy.
This case was heard by two judges and they give opposite decisions so this is called Split Verdict.
Justice Rajiv Shakdher – Marital Rape Exception is manifestly arbitrary, creates an unreasonable classification between married women and unmarried women, and strips married women of their bodily autonomy and sexual agency**.**
Justice C. Hari Shankar – The exception represents a valid legislative classification based on the context of marriage, and altering it falls under the domain of the legislature rather than judicial activism.
Arguments for and against the criminalisation of Marital rape
Arguments in favour of criminalising Marital Rape
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Article 14 – Article 14 of Indian Constitution states that "the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India". Exception 2 of Section 375 of Indian Penal code is a contradictory with our constitution as the Article 14 gives us equality before law but exception 2 of IPC was drafted based on Victorian Patriarchal norms that did not recognize man and women as equal. Even it creates an unreasonable classification between married and unmarried women, and hence takes away the right of married women to take consent to sexual activity. A married women should have the same right as unmarried women concerning her body.
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Article 21 - Article 21 of Indian Constitution states that "No person shall be deprived of their life or personal liberty except according to a procedure establishment by law". A women is entitled to refuse sexual relations with her husband as the right to dignity, bodily integrity and privacy is an intrinsic part of Article 21 of constitution**. In the State of Karnataka V. Krishnappa**, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
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Marriage does not mean permanent consent – Marriage involves mutual responsibilities, but it does not mean that consent is given permanently for sexual intercourse. Therefore, the argument in favour of criminalisation is that the law should distinguish between marital relationship and sexual consent**.**
Arguments in against of Marital Rape
1.Destabilize marriage as an institution
It may create absolutely anarchy in families and destabilize the institution of marriage.
2.Misuse of law
Another concern is the possibility that the provision could be misused in matrimonial disputes. Marital Rape could potentially be used as a means of harassment or retaliaton against the husband.
3.Difficulty of establishing consent
Opponents argue that determining whether consent was present or absent in a particular instance may be evidentially difficult, especially when the alleged incidents occurs in the privacy of a marital relationship.
Analysis
In my view, conflict between the traditional understanding of marriage, where it is expected that a women must fulfill her husband's need, and modern understanding of individual autonomy, equality and dignity. Marriage doesn't mean that the women give up her right to make decisions about he own body. A women's consent should remain important even after marriage like the unmarried one. Marriage should not take away women's identity or her individuality. Forced sexual relation by the husband should be punishable offence as rape. A Married women should have the same rights as an unmarried women. Both the husband and wife should have their own rights and individuality.
Conclusion
Debate on marital rape shows a significant gap between the traditional norms of society and the evolving values of modern society. The law must save the sacred institution of marriage but also ensure that one should not lose him/her individuality. Ultimately marriage should be relation of comfort, respect and mutual understanding and the one should have the right to say NO.
References
- Constitution of India
- Indian Penal Code, 1860
- Bhartiya Nyaya Sanhita, 2023
- Independent Thought V. Union of India (2017) 10 SCC 800
- Nimeshbhai Bharatbhai Desai V. State of Gujrat (2018)
- RIT Foundation V. Union of India (2022) SCC 1404