The exception to Section 375 of the IPC states: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
To obtain an understanding of where such a law stems from, one must examine the traditional justifications provided to exclude marital rape from the aegis of rape law. Three traditional justifications have been outlined by Prof. Mrinal Satish who assisted the Justice Verma Committee, a committee created in the aftermath of the December 16th Delhi gangrape to review the laws on sexual offences.
The first justification falls under what can loosely be termed as the ‘contract theory’. It can be traced back to 17th century England when former Chief Justice Sir Matthew Hale asserted that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” The statement discusses the concept of implied consent in the marriage wherein through a marital contract, from a misogynistic point of view, the wife is granting her husband irrevocable control over her sexual autonomy.
The second justification can be referred to as the ‘property theory’. Rape was not conceptualised as an offence against the rights of the woman, the person of the woman or the woman herself. In fact, rape law under this theory was conceived as a mechanism to safeguard the woman, who was considered to be the man’s property, from the sexual aggressions of other men. The woman starts off as the property of her father and then through marriage, becomes the property of her husband. She is viewed as a commodity who must be guarded as opposed to a living entity whose rights must be enforced and preserved. The idea of a man committing a violation against the woman’s sexual autonomy wouldn’t arise under this theory as his wife will be considered to be his property.
The third justification can be called the ‘unification theory’. Under this theory, after marriage, the wife’s legal identity merges with that of her husband’s. She, therefore, doesn’t have a legal existence independent to that of her husband’s. As a result, it isn’t legally feasible for a man to rape his wife.
However, these archaic traditional justifications hold no merit in today’s context. Irrevocable implied consent in marriages doesn’t exist as the institution of marriage itself is legally revocable through divorce. In addition to that, the patriarchal idea that women are the property of men is prima facie ridiculous enough not to warrant further thought, and the concept of disappearance of a woman’s legal identity simply because of the institution of marriage is to be rejected outright.
Additions to the arguments used by parliamentarians against the removal of the marital rape exemption clause in the Indian Penal Code are that marital rape is uncommon, impossible to prove, may facilitate false charges against the husbands and would be a catalyst for the destruction of marriages. These arguments do not have a legal or logical basis, but have manifested itself in the Criminal Law (Amendment) Act of 2013 which, in contradiction to the Justice Verma Committee suggestion, did not alter or remove the marital rape exemption clause in Section 375 of the IPC.
Marital rape is categorised by jurists to exist under three prevalent heads: battering rape, force-only rape and obsessive rape. ‘Battering rape’ encompasses a majority of cases of marital rape wherein the wife experiences physical and sexual violence through the hands of the husband. ‘Force-only rape’ involves cases where the force used is just sufficient to coerce the wife and typically occurs after the wife has refused sexual intercourse. ‘Obsessive rape’ covers perverse and sadistic acts meted out to the wife that are often physically violent.
India has provided for legislations and enactments that seek to protect the woman from violence in her own house. These legislations include protection from dowry, domestic violence, female infanticide, etc. However, it has failed its citizens by not recognising marital rape as a violation of human rights and bringing it within the purview of a criminal offence. A victim of marital rape has limited options of approaching a court for a judicial separation or of booking her husband under domestic cruelty legislations.
Official statistics and data on marital rape is difficult to come by due to the regressive construct of the Indian society which impedes a victim of marital rape from speaking out and also from reporting the violence. However, there is sufficient evidence to indicate its rampant existence. The United Nations Population Fund conducted a survey in early 2000 which showed that two-thirds of married Indian women claimed to have been forced to engage in sexual intercourse by their husbands. In 2011, a similar study by a Washington based non-profit – the International Centre for Research on Women – said that one in every five Indian men surveyed admitted to forcing their wives into sexual intercourse.
The constitution of India provides within its ambit rights and duties to facilitate women empowerment. Articles 14 and 21 that discuss the right to equality and right to life and personal liberty respectively are both violated by the act of marital rape. The exception under Section 375 discriminates against a married woman as it holds her unequal in the eyes of the law without any reasonable classification and doesn’t afford her the same protection as it does to an unmarried woman from rape. Marital rape also violates the implied right to live with dignity which can be found under an expansion of Article 21. In addition to this, Article 21 also covers the right to sexual privacy, the right to bodily self-determination and the right to good health, all three of which are violated by the marital rape. The harm in the offence of marital rape lies in the blatant disregard of the woman’s sexual autonomy and not criminalising it simply promotes the non-recognition of the woman’s control over her own body in a marriage.
For centuries, rape has been a misogynist and patriarchal instrument used to impose the dominance of men over women and within a context of a marital relationship, the woman is not only more vulnerable to it, but is also likely to accept the abuse passively due to the inherent patriarchy and internalised notions of social constructs that exist within Indian women. Add to this equation a non-existent legal framework to protect those who have been and are being sexually abused by their spouses and it is almost as if marriage is being accepted as a valid defence for rape and sexual violation. This is an issue that must be rectified immediately and it can only start with the criminalisation of marital rape.
As recommended by the Justice Verma Committee, the relationship between the accused and the complainant cannot be considered to be relevant when determining the question of consent to the sexual activity. Judicial and legislative awakening is imperative in this day and age where married women cannot seek the aid of the law to battle the very real nightmares hiding behind the socially presentable veneer of their own homes.
About the Author
Varsha Rao is currently pursuing a B.A./L.L.B. degree from National Law University, Delhi (NLUD). She is a member of the NLUD Death Penalty Research Project which is being conducted in collaboration with NALSA. Her interests lie in the field of behavioural science and criminology. She is currently pursuing her internship with Alexis Centre for Public Policy and International Relations.