Context

In a recent (August 2021) Judgment, the Chhattisgarh High Court upheld that sexual intercourse by husband is not rape, even if it was by force or against the wife's wish. This ruling has been deemed outrageous by many.

Background

• The Chhattisgarh High Court on August 26 discharged a man from facing trial for allegedly raping his wife, given that Indian law does not recognize marital rape if the wife is above 15 years of age.
• Justice N K Chandravanshi relied upon an exception under Section 375 of the IPC, which states that “sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Other Court Judgments on Section 375 (Marital rape) Supreme Court’s clarification In 2017, the Supreme Court partially read down the exception in Section 375, so that it applied only to wives who were 18 years and older. This meant that the rape of a minor (below 18 years) wife would not be exempt from criminal sanction under the marital rape exception.  Kerala High Court In August 2021, Kerala high court ruled that marital rape was "a good ground" to seek divorce. It held that albeit marital rape cannot be penalized, it falls in the frame of physical and mental cruelty. The court explained that marital rape occurred when the husband believed that he owned his wife's body and added that "such a notion has no place in modern social jurisprudence".

Analysis

About Marital Rape:

• Despite the increasing instances of cases of marital rapes in our country, marital rape is not defined in any statute/law.
• While 'Rape'" is defined under Section 375 of the Indian Penal Code, there is no definition of 'Marital Rape'.
• Section 375 sets out the different situations in which consent is non-existent, or is vitiated as a mutual mistake for sexual intercourse.
• There is an exception to this. It states: “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”
• More than 100 countries have outlawed marital rape. Even the British, who introduced the IPC in India, outlawed marital rape in Britain in
• In the past petitions seeking the criminalization of marital rape and removal of exception in Section 375, the SC has observed that it is not in its jurisdiction and it is for Parliament to take a call.

Why has Marital Rape not been recognized?

• Historically, matrimonial jurisprudence has upheld the tradition that marriage and solemnization of marriage results in giving unconditional and lifetime consent to sexual intercourse by the wife.
• The idea that sex within marriage can never amount to rape rest upon two assumptions:
  • first, that marriage amounts to a once, lifetime consent to sexual intercourse;
  • and second, that the criminalization of marital rape would violate the privacy of marriage; that the institution of marriage must be placed beyond the realm of constitutional scrutiny.
• Both these assumptions, however, are entirely incompatible with a constitutional democracy founded upon ideas of freedom and autonomy.

Arguments in favor of making Marital Rape a crime

• Against Fundamental Rights: The marital rape exception in Section 375 violates women’s right to autonomy and privacy under Article 21. It is also against Article 14 of the Constitution, which guarantees the equal protection of laws
• The Supreme Court held that privacy began with the human body and that at the heart of the right to privacy (Article 21) was the idea of decisional autonomy.
  • The argument is that if individual autonomy in a marital relationship is honored as a fundamental right, then marital sex without consent ought to be criminalized.
• Just as individuals cannot sell themselves into slavery, nor can they be deemed to have waived their right to decisional autonomy upon marriage.
• The Kerala HC and Chhattisgarh HC judgments demonstrated the need for a clear law on marital rape because there can’t be an “artificial distinction” between the social predicament of a wife below 18 and above. Physical integrity is absolute at any age.
• Justice Verma Committee, set up in 2012, recommended to include marital rape under IPC, in light of India’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women.
• Marital Rape as a ground for Divorce:
  • In 2019, the Delhi HC turned down a petition seeking a declaration of marital rape as a ground of divorce — which the Kerala HC has judicially recognized in its recent (August 2021) judgment.
• The belief that the institution of marriage would wither away if marital rape were made criminal justifies implies that coerced sex is necessary for a long-lasting marriage!

Arguments NOT in favor of making Marital Rape a crime

• Social Aspects:
  • The unfounded belief that allowing wives to complain about rape will destroy the family and the institution of marriage.
  • Marriage amounts to a once, lifetime consent to sexual intercourse
• Legal Aspects:
  • The Law Commission (172nd Report, 2000) has opined that criminalizing marital rape may amount to excessive interference with the marital relationship.
  • If a woman is aggrieved by the acts of her husband, there are other means of approaching the court.
    • e. A husband may be tried for offenses such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man.

Conclusion

It is a reliable fact that an overwhelming percentage of sexual assaults are committed by spouses and partners. Women are being violated of their dignity when it occurs within four walls of the matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification. There is an immediate need for a distinct law on marital/spousal rape in India at par with the accepted international norms. It is true that mere criminalization of marital rape in India will not be the solution, but it sure is an important step towards changing women’s experience of sexual violence in marriage and providing them their say.