Before I begin my submission on this topic, let me at the outset, make it clear that rape in itself is a very heinous crime, which involves the violation of the bodily agency of a victim (in most cases this is a woman). It is, therefore, a crime that needs the strictest punishment which can serve as a deterrence. That being said, in recent times, the debate on what has come to be labeled as ‘marital rape’ has been growing, with various social activists and feminists crusading for its criminalization. While their intention may be genuinely good, and I do not wish to ascribe any foul motive towards their activism, the very concept of ‘marital rape’ is highly flawed.
First of all, let us begin with what constitutes rape, by looking up at its definition as per the Indian Penal Code. According to Section 375 of the IPC, a man is said to commit ‘rape’, if he:
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: —
- Against her will.
- Without her consent.
- 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.
- 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.
- 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 consequences of that to which she gives consent.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.
In this well-articulated piece, Who Decides The Definition Of Rape, published on Youth Ki Awaaz, the writer has added a couple of suggestions to consider; one being recognition of woman-on-man rape (i.e a sexual act involving a woman having sex with a man against his consent) and, the recognition of marital rape as a crime. While I agree with the first part of the writer’s suggestion, I would differ with the second on the following grounds:
- If you look up the definition of rape, by logic, the most important conditions for what could be defined as marital rape would be if the husband has sex against the woman’s will and without her consent.
- However, when a man and woman decide to marry each other (here, the assumption is that there is no coercion and that, both parties are willingly getting married), they both, under a legal contract confer, what are called, ‘conjugal rights’ upon each other. Among other things, conjugal rights involve the right to initiate and have sexual intercourse with each other.
- In fact, if a spouse leaves the other without any reasonable grievance, Section 9 of the Hindu Marriage Act, 1955 gives the latter spouse the right to have restitution of conjugal rights. There are some conditions that need to be fulfilled in order to earn such restitution, but this clearly demonstrates the fact that spouses have sexual rights over each other. There is an identical provision for restitution of conjugal rights in the Special Marriage Act as mentioned in Section 22 of the Act.
- Even the Muslim Marriage Act carries the provision with some hint of added complexity, which to some extent is covered in this link https://blog.ipleaders.in/restitution-of-conjugal-rights/
- In fact, multiple courts including the Supreme Court of India have maintained, that denial of conjugal rights is tantamount to domestic violence and is a valid ground for divorce, the evidence of which is can be found in the two different court judgments:
https://www.livelaw.in/denying-sex-spouse-ground-divorce-delhi-hc/
- The concept of conjugal rights is what differentiates a marriage from any other kind of relationship. For example, a girlfriend and boyfriend may say that they too have sexual intercourse, and thus enjoy the sexual aspect of conjugal rights. But the assumed ‘conjugal rights’ of a boyfriend and girlfriend are not recognized legally. The law does not recognize an unmarried boyfriend-girlfriend pair as a couple.
- With the acceptance of ‘live-in’ relationships, the Judiciary has facilitated a couple to live with each other without officially transferring conjugal rights on each other. A marriage without the confer of conjugal rights will become indistinguishable from a live-in relationship. The court does not legally recognize live-in relationships (courts do not consider being in live-in relationships to be a crime; however, they are not recognized as legally official relationships), and a couple which chooses to be in one does so with their own responsibility. Therefore, if a woman wants protection against rape and yet wants to live together with her partner, she may instead of getting into the legally recognized institution of marriage, get into the informal, legally unrecognized institution of a live-in relationship.
- Just because marital rape is not recognized in India, does not mean a husband is necessarily permitted to have sexual intercourse with his wife against her will and consent. It is just that this would constitute as an abuse of conjugal rights, and is recognized as Domestic Violence*.
- At least conceptually, since the beginning of civilization and the establishment of the institution of marriage (one which involves confer of conjugal rights on the involved partners), a large number of people have willingly entered into the institution. If the concept of conjugal rights is taken away from marriage, a separate societal institution which will have to substitute the existing one of a similar nature will have to be created for such people. Essentially marriage then becomes what we today call live-in relationship, and a new institution will take the place of marriage. But there is absolutely no necessity to have this kind of social innovation, because couples who wish to stay together without conferring conjugal rights can do so by getting into a live-in relationship, whereas the couples who wish to stay together by conferring conjugal rights over each other can get married.
- The institution of marriage evolved with the advent of large civilizations, primarily for the identification of couples who would be betrothed to each other and enjoy conjugal rights over each other and would as a result, end up parenting the next generation. Even today, in most, if not all, places, knowing the parenthood of a particular child is considered important for various purposes. It is for this purpose that marital relationships are ones which are recognized by the law and recorded as such. In the absence of such factors, there would have been no reason for the state to grant legal recognition to marital relationships. In a live-in relationship, a couple do not grant conjugal rights to each other, and are generally not expected to bear children, and hence there is no reason for the state does not need to recognize such relationships officially. If such couples do bear children, it is assumed that they are born out of perfectly consensual unprotected sexual intercourse. If the unprotected sexual intercourse leading to pregnancy was unprotected, then it will be recognized as rape under the existing Section 375, IPC, and the biological mother does not need the law to recognize marital rape as a crime to be able to file a complaint.
- If a wife feels that the husband is abusing the conjugal rights granted to him by having non-consensual sexual intercourse, then she can complain about the same under the Domestic Violence Act, and it is then a valid ground of divorce.
- As to whether spouses are entitled to have sex with each other, by virtue of the fact that they are legally married, and the fact that conjugal rights are conferred upon marriage, the answer is Yes. Two partners married to each other do have the right to initiate sexual acts with each other, with the consent assumed to be in existence until denied except for particular instances. This is in contrast to two unmarried persons between whom consent for sexual acts is assumed to be denied until granted for ever instance, although most persons who has personally experienced the dynamics of romantic relationships would agree that to various degrees, consent between two unmarried romantic partners (whose partnership is not recognized by the law) is assumed to be granted.
*As per the Protection of Women from Domestic Violence Act, 2005, the definition of Domestic Violence includes the aspect of Sexual Violence as per the following description in Section III, Explanation I (ii):
“sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
Another problematic aspect with criminalizing marital rape is the difficulty of proving the same. In a non-marital rape, the victim could produce various evidences of resistance, which if found to be of unimpeachable nature, the accused could be convicted of the charge of rape. However, a husband-wife relationship is by definition a sexual relationship. Hence, it is difficult to establish the lack of consent at a particular instance in an unimpeachable manner. This interview with Flavia Agnes, founder of Majlis, a women’s legal aid group, briefly touches upon the difficulty in proving marital rape https://www.business-standard.com/article/current-affairs/proving-marital-rape-is-not-easy-it-would-be-a-challenge-for-the-woman-flavia-agnes-116042300710_1.html
As we see from the above, the fact that conjugal rights, on the basis of which consent for sexual activity between spouses is to be assumed as long as it is not denied at certain instances, are an integral part of the institution of marriage means the term ‘marital rape’ itself is a misnomer. However, even in the current legal framework within India, a wife does have the provision to seek remedies if her husband has been sexually abusing her. If she does want to have remedial action for such violation of the Domestic Violence Act, she is free to seek a divorce from her husband for the sexual abuse. Even if India were to criminalize marital rape, it is impossible to have a resolution for the same beyond this. If along with having sexual intercourse against the will and without the consent of the wife, the husband has also committed worse acts of domestic violence accompanying the forceful sexual activity, for which even under the existing Domestic Violence Act, the penalties are bound to rise for the husband.
Thus, even without the criminalization of marital rape, the Indian legal framework provides the wife with a mechanism of redressal if she is subjected to sexual abuse. In fact, because of the broad definition of sexual abuse in the Domestic Violence Act, theoretically, at least, she is protected from even such sexual offenses committed by the family she is in, which do not fall under the definition of rape. Therefore, while India remains one of the 36 countries which have so far failed to criminalize marital rape, sometimes, it is the minority that displays the better part of wisdom, and as such, in my opinion, marital rape should not be defined as a separate category of crime in India. And we do not necessarily have overtly regressive countries for our company, marital rape has not been criminalized even in China and Singapore.