Does a woman or man lose their degree of sexual autonomy after marriage? Hon’ble Justice DY Chandarchud took a stand in the negative on the Right to say “no” (to sex) after marriage. It is generally believed that either of the spouses must ensure each other’s approval on sexual intercourse after marriage but in ancient India, marital rape was not even accepted as an issue. The primary reason behind this mentality was the patriarchal framework of Indian society and that women were considered a ‘property’ or a ‘chattel’ of their husbands. This does sound orthodox! However, in present India, courts are taking up cases based on this issue although India is among the 36 countries where marital rape is not yet criminalized, unlike 150 other countries. Read this article to know about the pros and cons of criminalizing marital rape and judicial precedents!
Provisions relating to Marital Rape
Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. It is considered a form of domestic violence and sexual abuse Historically, sexual intercourse by a husband with his wife had been regarded as a right of spouses with or without consent and Section 375 of IPC provides an exception providing immunity to marital rape.
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Firstly, Section 375 defines rape and lists down 7 notions of consent that, if vitiated, would constitute the offence of rape by a man.
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However, Exception 2 to Section 375 exempts non-consensual sexual intercourse between a husband and a wife over fifteen years of age, but in Independent Thought v. UOI (2017), the Supreme Court increased this age to 18 years.
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In accordance to Independent Thought’s case, “Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.” Therefore, courts these days consider this age (18 years) by setting this case as a precedent.
Role of Judiciary
Legislatures have been saying that marital rape is already covered under IPC meaning a married woman in case of non-consensual rape can take recourse to Section 498A of IPC (cruelty) or domestic violence act but not section 375, But Judiciary took a different stand. Let’s take a glimpse of some recent cases:
The Delhi High Court in RIT Foundation v. UOI and other connected matters (2022) was hearing a challenge to the constitutional validity of the ‘marital rape immunity' provided under exception 2 of section 375 in the IPC. The case had put the limelight on significant issues concerning consent, the extent of state control on female sexual autonomy, and correcting historical prejudices in law.
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The court here basically reckoned on how the dignity of married and unmarried women can be differentiated and asserted that irrespective of marital status, every woman has the right to say ‘no’ to a non-consensual sexual act.
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The rationale and the thrust are that a relationship cannot be put on a different footing as a woman remains a woman whether married or unmarried.
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The Court stated that ‘just because she is married so she can take recourse of other civil and criminal laws and not under section 375 (rape) of the IPC if she is a victim of forcible sexual intercourse by her husband, is not alright’.
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A bench of Justices Rajiv Shakdher and C. Hari Shankar said the exception from prosecution given to husbands under section 375 of the IPC has created a firewall and the court has to see if the firewall is violative of Articles 14 & 21 of the Constitution.
The Chhattisgarh High Court has ruled “sexual intercourse or sexual acts by a man with his own wife…would not constitute an offence of rape, even if it was by force or against her wish”, and discharged the man in question from the charge filed against him by his wife, (Bar & Bench Report)
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The husband and his family members moved a revision plea challenging the charges filed against him by his wife, Justice N.K. Chandravanshi referred to Exception 2 of Section 375 of the IPC (which deals with the offence of rape).
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The case ruled “in this case, the complainant is legally wedded wife…therefore, sexual intercourse or any sexual act with her by… the husband would not constitute an offence of rape, even if it was by force or against her wish.”
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However, the judge upheld other charges filed against the accused, namely Sections 498A (cruelty) against the husband and his family members, and Section 377 (unnatural offences).
Pros and Cons of Marital Rape
Arguments favouring criminalisation of marital rape
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It is argued that issues related to married couples are covered in the “Protection of Women from Domestic Violence Act 2005” But the term “sexual abuse” is mentioned and it doesn’t explicitly define “rape”.
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The Domestic Violence act has been considered a civil law by the courts and thus the accused can get away without any jail term.
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A civil law by definition falls short and cannot deal adequately with a heinous crime like rape, murder etc.
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Every woman must have sexual autonomy after marriage and her body and exception 2 of section 375 is violative of Articles 14 and 21 of the Constitution.
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Marital rape cases are also argued to have been covered under Section 498A of IPC (cruelty), however again it does not explicitly talk about rape.
Arguments against criminalising marital rape
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It is argued that issues related to married couples are covered in the “Protection of Women from Domestic Violence Act 2005” So, there is no need to repeal the exception under Sec. 375.
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If marital rape is criminalized, there are maximum chances of it being misused which is a big reason pointed out by individuals, jurists and even men’s rights activists.
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The statistics show massive misuse of 498A, the law that relates to dowry cases. Some activists even stated that 85% of dowry cases turn out to be false.
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Deepika Narayan, a men’s rights activist, wrote an article in 2020 citing the misuse of 498A.
Conclusion
In an article written by a men’s rights activist (Deepika Narayan), a total of 111,549 cases were registered under 498A in 2020. Of these, 5,520 were closed by Police citing as false and a total of 16151 cases were closed by police either for being false or a mistake of fact or law where many husbands committed suicide after being charged under Section 498A whereas, on the other hand, women in several cases are continuously being forced to have sex after marriage without consent so, marital rape cannot be considered a less serious offence than any other form of sexual violence. Thus, it will be a bit difficult to say as to whether marital rape in India is going to be criminalized or not as there is a boon and a bane to it.