Ever since the Delhi High Court started hearing a batch of petitions filed by several NGOs and women’s rights organisations seeking to make marital rape a criminal offence in India, much has been said about the constitutional validity of the rule. The petitions are being heard by the division bench of Justice Rajiv Shakdher and Justice C Hari Shankar and with new observations coming up every day they’re sending social media into a frenzy.
What Is Marital Rape And Why Are We Talking About It Now?
Section 375 of the Indian Penal Code (IPC) gives an exhaustive definition of the word “rape”. According to this section, a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman:
(i) against her will.
(ii) without her consent.
(iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(iv) 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.
(v) with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequence b s of that to which she gives consent.
(vi) with or without her consent, when she is under eighteen years of age.
(vii) when she is unable to communicate consent.
Additionally, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
However, the said act has specifically made one exception: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” It is against this exception that the petitions have been filed. But there are starkly divided views on this issue.
This isn’t the first time that someone has filed a petition seeking to criminalise marital rape. In February 2015, the Supreme Court dismissed a petition filed by a Delhi-based MNC executive on the grounds that it was a personal cause and not a public issue. “You are espousing a personal cause and not a public cause. This is an individual case,” the bench comprising Justice AR Dave and Justice R Banumathi had said, refusing to take up her plea. Later, the top court also dismissed a public interest litigation saying that it was for the legislature to take a call on the subject. Since then, the subject matter had been under wraps until it was brought up again at the Delhi High Court and was taken up for discussion.
Legal Position In Other Countries And International Pressure
According to a report in India Today, marital rape has not been criminalised in about 36 countries. Around 150 countries including the UK, the US, France and even India’s neighbour Bhutan, have criminalised this act. Repeated appeals have been made to the Indian government to follow in the footsteps of the majority and criminalise marital rape in the country. In 2015, United Nations Development Project (UNDP) chief Helen Clark told the Hindu, “The issue is not one of culture, but of consent… If India failed to criminalise marital rape, it would be flouting the Sustainable Development Goals (SDG).”
Why The Debate?
In a judgement passed by the Kerala High Court in 2013, marriage according to the Muslim personal law has primarily been regarded as a civil contract for the purpose of legalising sexual intercourse and the procreation of children. According to most conservative Hindu households in the country, although a sacred ritual, marriage also entails the freedom to have sexual intercourse with the partner. In such a society, it will be difficult for the various classes to accept such a progressive law without significant deliberation.
In 2016, Maneka Gandhi, the Women and Child Development Minister at the time, in a written reply in the Rajya Sabha stated, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”
Many conservatives also believe that the concept of marital rape could not be applied in India as marriages are considered sacred. Various law commissions and parliamentary panels have largely been against criminalising marital rape over the years. In its 172nd report submitted to the government in the year 2000, the Law Commission of India opined against it by saying that “it may amount to excessive interference in the marital relationship”.
Many are also of the opinion that if marital rape is criminalised, there is a good chance that women will misuse the law in their favour. Citing the example of the rising number of false domestic violence cases, Advocate Maneesh Mishra says, “According to the NCRB, about 1,00,000 cases are filed under Section 498A annually, out of which, the rate of conviction is anywhere between 14-20 percent, while the conviction rate under all other IPC sections is around 46 percent. This huge gap in conviction is proof that most cases filed under 498A are false.” Advocate Mishra further suggests, “If people are fighting to make marital rape a criminal offence, they should go a step further and talk about making rape a gender neutral offence.”
On the other hand, women organisations and NGOs fighting towards women’s rights have continuously argued that forcible sexual intercourse, even by her husband, violates a woman’s right to live with dignity which is a part of her right to life and liberty, guaranteed under Article 21 of the constitution of India. As per some groups, the exception also violates women’s right to equality before law, guaranteed under Article 14.
After the December 2016 gangrape case that shook the country to its core, the Verma committee report was also in the favour of criminalising marital rape from the point of view of women’s safety. “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape,” stated the report.
Former secretary of the Supreme Court Bar Association of India, Aishwarya Bhati says that “nobody can justify marital rape”. However, she advocates a cautionary approach: “It’s definitely wrong. But criminalising is something which has serious repercussions. It can wreak havoc with (an) already strained and fragile matrimonial and family system. It would be wrong to look westward. It’s already a wrong – a civil wrong under the domestic violence law and sexual violence against a woman can be a ground for divorce.”
I had a similar case where my client filed for a divorce, claiming that her husband forced himself on her. However, she could not pursue rape charges and had to settle for only divorce proceedings in the family court to save herself. The victim, who wishes to remain anonymous, said, “He (her husband) would stop talking to me as a way of punishment but would want to force himself on me and continue a physical relationship even when I wouldn’t consent. I tolerated everything and managed to serve the family while doing my job. When I told my mother-in-law, she said that ladies are meant to tolerate all the ‘inconveniences’ in life.”
Another case that recently came to light was where the wife of a client filed a divorce case and cited Section 498A as grounds, in which, one of the accusations levied was that of rape. As the matter proceeded in court, the wife was granted heavy maintenance amounts by the husband, as ordered. However, investigations done by the defence counsel revealed that the wife was having an affair behind the husband’s back, and that she was using the laws in her favour to extort money from her husband and enjoy it with her paramour. The court eventually ruled that no more maintenance be paid to the wife, and that no alimony be given after the divorce was finalised. “The kids and the relatives were shocked that she would go to the extent of filing a fake rape case against her husband in order to extort money from him when she was the one who was actually having an affair,” said a source associated with the case. “We men have absolutely nowhere to turn since the laws have been framed in such a way that they can easily be misused by women whenever they want,” said the distraught husband.
It’s disappointing when we hear about such cases, which are becoming rampant these days. Men usually suffer because of lack of proper representation coupled with poorly framed laws. A Supreme Court Bench comprising Justices S Abdul Nazeer and Krishna Murari observed on February 8 that matrimonial litigation in India has increased and that there has been an increase in the misuse of Section 498A. The apex court noted in its judgement, “This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives.”
It can be argued that genuine victims are bound to suffer as a result of the vast volume of fake cases registered.
Evidently, there is a lot of diversity in opinion regarding the issue among the people in our country. As the matter goes on in Court, the honourable judges are coming up with new anecdotes each day. During the course of the hearing, Justice Shakdher made an analogy, which was widely circulated on social media and received both brickbats and bouquets from users. He had commented, “Such exception in law does not exist even in case of sex workers and she can prosecute a man if he imposes himself on her. Can a wife be put at a lower pedestal and be less empowered by law? So a sex worker actually shines the light on the circumstance which is sought to be protected by the exception.” Justice Shankar on the other hand took a more cautious approach and observed, “Expectation of sex in a relationship between a customer and a sex worker with such expectation in a married relationship need not to be equated.” He further told the amicus curiae, “If we are creating an offence, there is a man who is going to be punished for it. The lady has suffered no doubt, and we have to definitely empathise to the maximum degree with that. But we must keep in mind that what is the consequence is that a man will become liable to be punished with 10 years. So let’s not just look at this concept of discrimination by looking from the point of the lady.” The Court has asked the central government of their views to which the counsel for the Centre submitted that it was considering a “constructive approach” to the matter and has also invited suggestions from various authorities including chief ministers of states and Chief Justices of various High Courts regarding the amendment of criminal laws. In its additional affidavit, the Ministry of Home Affairs also said, “The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus Government is already seized of the matter.” The Centre is supposed to make further submissions and contentions in the following weeks.
As the Delhi High Court continues to hear the petition, the entire country, if not the world, waits with bated breath to see what stance India takes. In any case, this issue seems to be far from over as yet.
Advocate Krishnanand Mishra is a criminal lawyer currently practising in the Bombay High Court.
Views are personal and do not reflect the official position of The Sparrow.