The offence of marital rape is not specifically codified in the Indian criminal laws largely because it undermines the social and cultural values associated with marriage in India. Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence1 While rape outside marriage is considered to be an offence against the chastity of a woman that makes her ‘unfit’ for marriage, the need for exercising such a stipulation does not arise post-marriage when demands of sex by the spouse are considered as an important marital obligation.2 Section 375 of the Indian Penal Code, 1860 (hereinafter IPC) lays down the definition of rape and makes a clear exception for sexual intercourse by a man with his own wife who is not under 15 years of age. The clause depicts absolute disregard for consent of the wife in maintaining a sexual relationship within a marriage.
India was ranked 39 among the 99 countries surveyed by the United States Agency for International Development in 2012 for assessing the number of cases of sexual violence by an intimate partner or other.3 The National Family Health Survey4 conducted in 2005 revealed that only 2.3 per cent of the rapes reported by women were done by men other than their husbands but only a dismal 0.6 per cent of the rapes done by their husbands was reported. The International Centre for Women (ICRW) and United Nation Population Fund (UNPFA) conducted an in depth study to assess the occurrence of violence in intimate relationships across eight Indian states. Sexual violence in marriage was found to be very common where as many as a third of the men who were questioned revealed that they had forced their spouse or partners into having sexual intercourse with them without their consent5.
The debate with regard to making marital rape a criminal offence was brought into limelight again owing to the observation made by the Minister of State for Home Affairs.6 However this debate is not a recent one since the need for making marital rape an offence was first discussed as early as in 1972 in the 42nd Law Commission Report. It was revisited again in 2013 by the J.S. Verma Committee. It paid heed to the recommendations made by UN Committee on Elimination of Discrimination Against Women in 2007 suggesting that India should include marital rape within its definition of rape. The J.S. Verma Committee report suggested that the exception of marital rape be removed from Section 375 of the IPC and evidence of marriage or an intimate relationship ‘may not be regarded as a mitigating factor justifying lower sentences for rape’.7 However this recommendation was not accepted.
In the controversy surrounding the constitutionality of Section 498-A on the grounds of it being misused by the women, the Supreme Court held that the mere possibility of abuse of a provision of law does not invalidate the law. It also went ahead to declare that if a statutory provision is otherwise constitutional and valid a possibility of abuse of power in cases shall not deem it to be unconstitutional.8 The fact that marital rape is prevalent in India is a reality. The oft repeated reasoning that marital rape cannot be recognised because it is against the tenets of socio-religious beliefs and the technicalities of the offence would not be understood by the uneducated mass of Indians has a pregnable logic9. By allowing women to challenge their marriage in case of cruelty as per the provision of Section 498-A of IPC and the Domestic Violence Act, 2005, the notion that marriage is a sacrosanct relationship is already broken down. Through these provisions the wife is given an option to raise her voice against any sort of cruelty meted out to her by her husband, a clear challenge to the invincibility of marriage.
Ministers in the Indian Parliament are divided on the opinion that recognising marital rape as an offence will challenge the age old family system in India.10 They are reluctant to follow example of the western nations who have criminalised marital rape on the ground that marriage is not an important institution for them. This reasoning is fraught with prejudice. The House of Lords in United Kingdom in 1991 established in the case of R v. R that marital immunity in rape has no place in the laws of England. The reason for the existence of this immunity in a progressive society till as late as 1991 was due to England’s obedience to Hale’s dictum11 which declared that it was the wife’s obligation to fulfill the demands made by her husband. It was emphasized in R v. R12 that it was the change in the status of a woman in a marriage owing to her financial independence and availability of matrimonial remedies, that she was now to be considered as an ‘equal partner’ and was not supposed to indulge in sexual intercourse at every whim of the husband considering it to be her wifely-duty. This history of understanding marriage as a ‘mutual matrimonial consent’ for having sexual intercourse even at times forcing a woman into having sexual intercourse by the husband and refusal to treat this act as a crime is very similar to the notions held in India at present.
They discussed whether recognising marital rape as an offence will have a deterrent effect in reducing the number of marital rapes. It was opined that the need to give recognition to rape within marriage is to give a strong message to society that such instances of sexual violence shall not be tolerated which is definitely a deterrent in the long run.13 A very interesting debate ensued amongst the lawmakers questioning whether forceful sex in an intimate relationship based on trust is not as degrading as when it is committed by a stranger? While discussing the harm caused to the social status of the institution of marriage it has been correctly surmised in the report that the foundations of such a social institution should be considered already shaken when one partner uses force against the other.14 The question of difficulty in proving the offence of non-consensual intercourse has been tackled with an apt response by the Police Superintendents’ Association of England and Wales stating that problems inherent in bringing a successful prosecution against domestic assault (which already was an offence) will not be much different than the ones envisaged in case of marital rape, however this cannot be ‘an excuse for failing to provide an appropriate legislation’ which would only aid the police in reducing the misery of the general public.15
Valuable lessons can also be learnt by revisiting the debates in 1983 when Section 498-A was introduced amidst lot of protests predicting its possible misuse by women. This prediction did come true to some extent. As was also observed by the Delhi high Court that some complaints under Section 498-A were exaggerated and were in the ‘heat of the moment over trifling fights and ego clashes’.16 Post this observation the course taken by the judiciary was not to dilute the provisions under Section 498-A or to decriminalize it as was requested by some groups. Instead the Delhi High Court and later the Supreme Court in all their wisdom laid down the ‘Guidelines for Arrest’ to be followed in Delhi while dealing with a case under the mentioned section17. Inter alia the police was advised through these guidelines to not arrest the husband and his family members without prior investigation into the veracity of the claim.18
An offence in a matrimonial relationship is different from a crime at large. Sensitivity towards all parties involved is invariable. The National Commission of Women while discouraging frivolous complaints maintained its position stating that Section 498-A cannot be removed on the pretext of its abuse when the life and liberty of women were at stake.19 They suggest creation of Mahila desk at the police station and Crime Against Women (CAW) cells to make the female complainants less uncomfortable. The Delhi Legal Services Authority, designated NGOs, National Commission for Women were asked to set up opportunities for mediation and conciliation between the parties so that every chance to save the marriage was exploited.20
It is wrong to understand that wives have been a given a complete free hand in accusing their husbands according to their whims and fancies. There are well meaning provisions in the IPC as well as the Criminal Procedure Code, 1973 (hereinafter CrPC) to deter them from making false allegations. False information given with the intent that the public servant uses his lawful power to cause injury to another is liable to be punished with six months of imprisonment or fine of a thousand rupees.21 A higher punishment of up to seven years can be granted if a false charge is alleged with intent to injure.22 In addition to this there are also provisions for providing compensation for accusations made without any reasonable cause23 and when persons are groundlessly arrested.24 The amount of compensation and imprisonment can be made more stringent for deterring false complaints by the legislature. These stipulations most definitely qualify as an effective deterrent for harassing innocent parties.
It becomes important to criminalise the offence of marital rape specifically because its lack of recognition in Section 375 of the IPC itself questions the value the society attaches to violence against women. The literature available about the difficulties of transformation in the attitude towards recognising rape within marriage in United Kingdom about two decades back throws light on its similarity with the situation in India. The present place India enjoys in the world qualifies it to be a progressive economy, leaving no reason for it to adhere to archaic colonial interpretations of women to be the property of men. While marriage is a sacred institution its sacredness is not challenged by criminalising marital rape but by that first incident of rape by the husband. Consideration must be and has been given to avoid vexatious litigation by the legislature and the judiciary. Such an excuse for denying the wives their right to bring the sexual aggressors to book will be both unfair and unconstitutional. In keeping with all the government efforts taken to better the status of women in Indian society, it has become imperative that they be protected from sexual violence in the safe confines of their own homes.
1 http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html, last visited on 17th May, 2015.
2 “Marital Rape: Why both sides have got it wrong”, written by Flavia Agnes, Times of India, dated 17th May, 2015.
3 http://www.thehindu.com/opinion/op-ed/comment-article-rape-rhetoric-and-reality/article6705077.ece, last visited on 20th May, 2015.
4 http://www.thehindu.com/news/national/marital-and-other-rapes-grossly-derreported/article6524794.ece, last visited on 18th May, 2015.
5 Figure 5.2, ‘Masculinity, Intimate Partner Violence and Son Preference in India-A Study’, 2014, by the International Centre for Women (ICRW) and United Nation Population Fund (UNPFA)
6 http://pib.nic.in/newsite/PrintRelease.aspx?relid=119938, last visited on 18th May, 2015.
7 Para 79 (ii)(c) J.S. Verma Committee Report, 2013.
8 http://infochangeindia.org/women/analysis/sc-upholds-constitutionality-
of-section-498-a.html, last visited on 19th May, 2015.v
9 http://blogs.wsj.com/indiarealtime/2015/04/30/modi-governments-reasons-
why-marital-rape-is-not-a-crime/, last visited on 18th May, 2015.
10 Para 5.9, 167th report on the Criminal Law (Amendment) Bill, 2012, presented to the Lok Sabha on 4th March, 2013.
11 Hale, 1 PC 629
12 [1991] 3 WLR 767, 770 E-G
13 Para 3.22, Law Commission Report (No. 205), UK, dated 13th January, 1992.
14 Para 3.27, Law Commission Report (No. 205), UK, dated 13th January, 1992.
15 Para 3.39, Law Commission Report (No. 205), UK, dated 13th January, 1992.
16 Chandrabhan v. State, order dated 4th August, 2008.
17 Standing Order no. 330/2008
18 http://spuwac.com/wp-content/uploads/2014/06/1627.2008.pdf, last visited on 18th MY, 2015.
19 Para 6.1, Law Commission Report no. 243, 2015.
20 Supra, 22
21 Section 182, IPC, 1860.
22 Section 211, IPC, 1860.
23 Section 250, Cr.PC, 1973.
24 Section 358, Cr.PC, 1973.
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