This topic came under my radar when I was surprised to read what our ex-Chief Justice had to say about marital rape. In a National Conference on Transformative Constitutionalism in India, Dipak Misra, was heard showing hostility towards the criminalization of marital rape by saying such things as our whole country is based on the family system and if we disregard it, it shall bring chaos and that “Rational anarchy has no place in the Indian democracy” (News and News 2019). Justice Misra is one of the most respected and revered judges. Before stepping down, numerous landmark cases passed under his tenure and he is considered one of the more rational and liberal individuals among the Chief Justices that proceeded him. If esteemed individuals like him have such opinions about this matter, I believe we get a very bleak picture of marital rape in the judiciary system.
Section 375 Of The Indian Penal Code
To understand why the Indian legal system is so vague about marital rape, we must analyse the laws which talk about it, i.e.- Section 375 of the Indian Penal Code. Section 375 states what rape is. But peculiarly, the exception to this provision states that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape” (“Section 375 In The Indian Penal Code” 2019). Here a man is given immunity from the crime of rape if he is the husband of the victim. Many argue that there is nothing wrong with this. They say the IPC has sufficient provisions to deal with assault and abuse. They even go to the extent of saying that the exception covers arranged marriages due to the fact that it criminalises intercourse with brides under the age of fifteen. Through this logic, they try to ignore the deep patriarchal undertones to this exemption.
Section 375 of the IPC is based on section 1 (1) of the Sexual Offence Act, 1959 of English Law (Sankaran, 1978). By the common law, it was stated that a man cannot rape a woman as by consenting to marriage she has given herself to the man (Sankaran, 1978). But soon this exception was banned by R v R in 1991 (“R. V R [1991] UKHL 12 (23 October 1991)” 2019). The judges ruled that the court had left all common sense in order to state that the plaintiff had consented to the act because she had married her husband. The exemption of marital rape is a legal fiction in today’s age of rape laws (“R. V R [1991] UKHL 12 (23 October 1991)” 2019).
What we must realize is that this exemption makes a woman the property of her husband. It assumes that after the woman consents to marriage, she has consented to every action and decision her husband makes. In today’s age of egalitarianism, we cannot let such rationale be a founding stone for a law. While a woman who enters a marriage may make her body accessible to her husband, it is with the understanding that she can deny sex whenever she wants. Many may still protect the exemption by stating that it is hard to define where consent starts and ends in a relationship like marriage and that it protects innocent husbands from vengeful wives. (Sankaran, 1978)
To the former argument, we say that the law does not prevent a woman who is sexually familiar with her rapist to press charges against him and thus the law should not prevent a wife from pressing charges against her husband. It is up to the court to analyse the facts of the case and infer whether there was consent or not. To the latter argument, we say that the exemption is not enough to protect an innocent husband against a wife who wants to do harm. If she can’t press rape charges, she will press other charges in order to defame him. This rationale is not enough to prevent actual victims from seeking justice in the court of law (Sankaran, 1978).
Violation Of Basic Human Rights
Regardless of which side you are on, you cannot deny that this exemption is a blatant violation of article 14 and article 21 of the constitution and practically legalises abuse. It has been stated by the supreme court that rape is a violation of not only a person’s dignity but her/his basic human rights (“Shri Bodhisattwa Gautam Vs Miss Subhra Chakraborty On 15 December 1995″ 2019). It is not enough to say that our present laws are sufficient enough to deal with abuse in a domestic setting. It is the duty of the state to address the crime of rape separately and make sure the guilty pay for their crime.
In terms of the application of section 375 of the IPC, I believe there is a clear violation of justice. In the case of Queen Empress v. Haree Mythee, a minor Bengali girl named Phulmoni Dasee was found bathed in blood on her husband’s bed. Her cause of death was a vaginal rupture. While the husband was prosecuted for homicide he was not charged under rape. While this case inspired the judiciary to increase the age of consent, nothing was done with regards to marital rape. It was considered that because Phulmoni was married to the perpetrator, he could not have raped her (“Queen-Empress Vs Hurree Mohun Mythee On 26 July, 1890” 2019).
In the case of Sreekumar And Anr. vs Pearly Karun, the wife was subjected to sexual intercourse against her will. She was also humiliated and tortured by her in-laws on a daily basis and was asked for more dowry. The court ruled that the plaintiff could not file rape charges as she was living with him at that time and does not fall under the ambit of Section 376-A which states that “whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine” (“Sreekumar And Anr. Vs Pearly Karun On 22 June, 1998” 2019). Not only does this section reduce the term of punishment under section 376, but it also states that someone’s dignity and basic human rights can not be violated if she resides in the same household of the perpetrator.
In cases where family and law collide, legislators find it difficult to make laws and ensure the delivery of justice. But in cases as violative as rape, the state should not deprive the victims of a chance to get justice and should take a hard stance.