Exception 2 of Section 375 of the Indian Penal Code (“IPC”) validates marital rape against wives not aged below fifteen years. Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita (“BNS”) raised the same to eighteen years of age, providing no reasoning behind this age bar. The concept of ‘no means no’, ought to be/should be universally applicable, and the marital status of a woman cannot override this inherent human right to life and dignity. Across various states of India, however, High Courts have given effect to the marital rape exception (“MRE”), by legalising that consent is immaterial, when it comes to unnatural or even forceful sexual intercourse with a wife, and that men cannot be charged, if the wife is above 18 years of age. In this article, I explain why the judiciary must intervene and hold MRE as unconstitutional, considering the situation in India. Further, I analyse the recent High Court judgements and deal with the problem of consent. Lastly, I suggest how marital rape must be held as an offence, considering the totality of the circumstances.
Need for intervention by the Judiciary
In RIT Foundation v. Union of India, the Delhi High Court delivered a split verdict with J. Shakdher holding the marital rape exception to be unconstitutional, while J. Shankar prioritised the institution of a marriage over a woman’s bodily autonomy. Aggrieved by the same, appeals and fresh petitions were filed in the Supreme Court, and they remain pending till date. The dire need to remove the marital rape exception is evident in the latest National Family Health Survey 5 which observed that 83% of married women aged 18-49 have experienced sexual violence from their husbands. Courts, lawmakers and the general public have mostly upheld the sanctity of marriage and the importance of a public-private distinction whenever there has been an uproar for marital rape to be declared unconstitutional.
However, what one necessarily decides to overlook, is that this crime within closed doors can be done away with only when the law intervenes. Sexual violence can be prevented only by sex education, something which India and many other countries are devoid of. A UN study of 10,000 men in Asia and the Pacific found nearly half of them admitted to sexual violence against their partner. The selective interference of the judiciary in private spheres must be called into question. If the state and the judiciary have the authority to intervene in cases involving minors who are sexually assaulted by their family members (Section 5(n) of the POCSO Act, 2012), then they also bear the responsibility to intervene in cases of marital rape.
Unconstitutionality of Marital Rape
That the marital rape exception is unconstitutional is clear from afar, as it explicitly violates the elements of the golden triangle of the Indian Constitution, that is, Articles 14, 19 and 21. Not having the recourse to law, solely based on one’s marital status, and being deprived of sexual and bodily autonomy hit the core of these Articles. Marriage cannot be used to create an intelligible differentia, unnecessarily exempting married men from the law. One of the reasons put forth by the counsels in the marital rape case was that removing the exception would create a new offence, which courts do not have the power to do. Critics have already explained why such an argument is false and illogical, as Section 375 of IPC (and Section 63 in BNS) already define the same offence. Widening the ambit of the law cannot be equalised with creating new offences. J. Shakdher also held that spouses have a right to expect normal sexual relationships from each other. This is a dangerous precedent, as it de-prioritises the right to consent. Married men who sexually assault their wives, can easily escape the law. The argument of misusing the law is also given as wives can easily accuse their husbands of marital rape. Again, this is a slippery slope as the apprehension of misuse of a law cannot validate its removal. The same was held by the Apex Court in Sushil Kumar Sharma v. Union of India.
Hazardous precedents set by High Courts
The Madhya Pradesh HC held that the absence of consent by the wife for sexual acts is not important in a XYZ (Confidential) v. State of Madhya Pradesh Police Station here the wife alleged forced unnatural sexual intercourse by the husband. Referring to Navtej Singh Johar & Ors v. Union of India (“Navtej Singh Johar”), and Umang Singhar v. State of M.P (“Umang Singhar”), the court held that since the alleged act is not an offence as per Section 375 IPC, the same cannot be said to be an offence under Section 377 IPC.
The Navtej Singh Johar case lays down that an offence under Section 377 is not made out if consent is there. The Court in Umang Singhar equated that with the MRE in Section 375, thus laying down that, since the man is a “husband”, and the woman is a “wife”, consent is immaterial. The same was followed by the Madhya Pradesh HC. The problem lies in equating the two laws and straying from the core of the case. Firstly, the contention is not whether the unnatural sex was an offence, but rather, whether the woman gave consent to the act or not. Secondly, a woman being a wife, does not allow the husband to expect sexual gratifications and violates her right to human dignity.
The Chhattisgarh HC had a golden opportunity to criminalise marital rape, as the circumstances supported the same, in Dilip Pandey & Ors. v. State of Chhattisgarh.The court not only upheld the charges framed by the trial court under Section 34 and 498A of IPC, but also that under Section 377 of IPC against the accused husband. Yet, when it came to recognising the same as a form of Marital Rape, the court refused to do so, and discharged the husband from charges under Section 376 of IPC.
In Sanjeev Gupta v. State of U.P. & Anr, the Allahabad HC, referring to Umang Singhar case, held that the ingredients mentioned in Section 377 of IPC are also present in Section 375(a) of IPC, and that BNS has no such provision like Section 377 IPC. Akin to the previous cases, this Court acquitted the man of any offence under Section 377 IPC since the wife was above 18 years of age.
Misplaced emphasis on the nature of sexual activity
The Supreme Court had partially struck down Exception 2 of Section 375 in Independent Thought v. Union of India, deciding that sexual intercourse with one’s wife aged between 15 and 18 years would also amount to rape. The object of this decision was to bring uniformity amongst the provisions of POCSO Act, IPC and other statutes. The above-mentioned High Court cases however, are about consent given by the wife, and not her age. What is consistently noticed is the misplaced emphasis on “unnatural sex” rather than “forced sex.”
Again, a problem arises as there need not be force used to show the absence of consent. Consent has to be derived from the relevant circumstances, as was held in State of Himachal Pradesh v. Mango Ram. If the consent of the wife is taken as material, then it would not matter if the sexual act is unnatural or not. In either case, it ought to be an offence. The question which arises though, is whether the victim has the burden to rebut the presumption of consent, or the accused has the burden to prove the presence of consent. This, along with the proof of the existence of sexual intercourse creates a problematic situation, where the courts would be unable to determine the same.
Doing away with the misuse of law
There are reasons why the misuse of marital rape law cannot be taken as a defence against holding MRE unconstitutional. Firstly, it is reasonable to assume that women could misuse it, to harass their husbands, or for other ulterior motives, as there are usually no witnesses to this crime. At the same time, as seen from the aforementioned statistics, if this offence is allowed to prevail, the repercussions are greater than if curbed. The psychological effects are more prominent apart from the physical harm suffered, as it affects the victim’s work life, social life and even relationship with one’s own family. This is because the perpetrator here is someone the victim knows and trusts. Marital rape is not the same as marital conflict.
Secondly, when the law in the form of Section 498A of IPC exists for cruelty meted out by the husband and/or his relatives to the wife causing her grave mental or physical injury, or even driving her to suicide, then it is unreasonable for the law to presume that the wife cannot be a victim of sexual assault or rape from her husband. Section 498A has a history of misuse as well, but over the years, the Courts have been cautious enough, to decide from the evidence available whether the husband should be prosecuted or not. For instance, in Rajaram v. The State of Madhya Pradesh, the Apex Court set aside the conviction of the accused after considering the “cumulative effect” of the evidence available including the two dying declarations given by the wife. It held that the High Court had discredited the only evidence available against the appellant. Similar steps could be taken for a marital rape law as well, to prevent its misuse
Lastly, what must be kept in mind is that crimes like marital rape or cruelty under Section 498A do not happen in isolation. Taking into consideration the totality of the circumstances of the case, judges can decide whether an offence of marital rape is made out or not. This would also solve the problem of consent discussed in the preceding section. In State v. Mr. Ram Gopal, while deciding a case of Section 498A IPC, the Court discussed the need to look at the totality of circumstances, to test the veracity of the prosecution story. It clarified that mere variations in the evidence should not be considered to reject the prosecution story, rather, efforts should be made to find the truth within permissible limit. Similarly, for marital rape cases, the motive and intentions of the husband, the nature of the couple’s relationship, previous history of any cruelty inflicted on the wife by the husband, could serve as important determiners to decide on marital rape case.
Conclusion
The author proposes the following, to resolve concerns regarding the high possibility of misuse of law, and the grave repercussions on the husband, if he gets wrongfully convicted. Marital rape exception should be held unconstitutional and be removed from the Exception of Sections 375 of IPC and 63 of BNS. Following this, it should be introduced as a Section 498B IPC offence, with punishment similar to that mentioned in Section 498A (and its counterpart in Sections 85 and 86 of BNS). The reason for it being legislated under a separate heading is that the cruelty under 498A IPC is for specific reasons mentioned in Explanations (a) and (b). However, marital rape could happen due to a variety of reasons, so restricting the offence would hinder the course of justice. Rape is a heinous crime, and affects the mental health of a woman, traumatising her for life, irrespective of the perpetrator being a stranger or her own husband. The Apex Court’s intervention is essential to do away with the loophole of using marital status as a defence for rape, and affirm, that no one should be exempted from this heinous act.
The Author is a third-year student at NALSAR University of Law, Hyderabad
Image Credit: The Leaflet
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