Marital Rape and its Legal and Cultural Complexities

The authors of this blog are  Lakshay Kumar and Pulkit Khanduja B.A.LLB, second year (4th semester) students at Guru Gobind Singh Indraprastha University (GGSIPU) College- Delhi Metropolitan Education (DME).

Both Rape and Marital Rape are closely interrelated but ironically Rape is punishable under the IPC and not Marital Rape. Rape is one of the most heinous offence that can be committed upon a woman and is both socially frowned and legally punishable, but Marital Rape is an exception to Rape. There could be various reasons why marital rape is still not an offence ranging from the belief that interference in the marital life of individuals by the law would hamper the sacred institution of marriage. The second reason why Marital Rape is still not a specific offence under IPC is because of the presumption among various jurists that there are enough legal remedies available under the Indian law that protects the women from any harm caused to them either physically or mentally by their spouse. Other reasons advanced are the mental thinking that the Indian society believes and that is women after marriage has given full control over her body to the spouse and thus has given consent of every sexual intercourse and happens between them. However, these socially backward thinking was discarded after the 1970s because of the feminist revolution. These justifications were replaced by more scientific justification like the “consent theory”.  As per this theory a woman has been deemed to have given consent to whatever the husband asks her to do after the marriage. Thus, in the present article, the author tries to explore the legal and cultural implication of Marital Rape.

Marital Rape and Fundamental Rights
In the introduction section we dealt with many reasons or justification given in favour decriminalization of Marital Rape, and one of the justifications was that making marital rape an offence would be an intervention of the State in the private life of the married couple and hence will destroy the sacred institution of marriage. One of the major characteristics of a marriage is that it legitimises sexual relationship between the couples and hence the State believes that sexual relationship is highly personal to the married couples and hence it should not intervene in the private life of the Individual. However, this policy of non-Intervention in the private matters of the Couple can sometimes lead to certain problems. For instance, if a woman is suffering from any kind of mental or physical cruelty by her male spouse then the State has to intervene in order to protect the wife from cruelty subjected by her husband, because if the State does not intervene then the wife would be left with no legal remedies. Inlay man’s term the definition of rape is sexual intercourse with a woman without her consent. If we look at the definition then it becomes clear that in order to constitute the offence of Rape it is necessary to establish that the sexual intercourse must have taken place without the consent. Consent is something which can change with different situation and hence it can not be presumed that when two individuals marry then in that case women have given implied consent to sexual intercourse at any given time during marriage. Thus, this justification given in favour of not criminalizing Marital Rape is a violation of Article 14 which is right to equality and Article 21 which is right to life and personal liberty. At this junction it is important to note the exception 2 for section 375 of IPC. As per exception 2 of 375 if a man has sex with his wife whose age is between 15-18 then in that case it would not amount to rape[1]. Thus through this section it is indicated that marital rape is not an offence, thus a big question that arises is that what if a wife refuses to have sexual intercourse with her husband and despite this the husband forces to have sex will that not amount to forcefully having sexual intercourse or not ?. The big question also arises is that can the law force the wife to have sexual intercourse with his husband? All these questions are yet to be answered. While understanding the involvement of judiciary in the marital affairs of the individual two Judgements have to be kept in mind first is the case of T. Sareetha v. T. Venkata Subbaiah[2]

In this case the Constitutionality of  the concept of Restitution of Conjugal Rights(hereinafter- RCR) was challenged on the grounds that Restitution of Conjugal Rights forced a spouse to live with his married partner without his or her wishes. The Andhra High Court declared Section 9 of Hindu Marriage Act (hereinafter- HMA) as unconstitutional as it gave the right to the State to decide whether a spouse will be living with another spouse or not. In the same judgement, it was held that no unwilling person could be forced to indulge in positive sexual act as it would be against human spirit and human dignity if any unwilling person is compelled to engage in sexual act [3]. Another case that of Harvinder Kaur v. Harmander Singh[4] the Delhi High Court took a contrary view from that of Andhra High Court and upheld the Constitutionality of RCR under the HMA. The court was of the view that RCR does not force the spouse to live with another spouse rather it is incorporated to save the institution of marriage[5]. The court took a bold stance in this case and observed that sexual relations are not the only factors that resolve around a marriage. This view was highly appreciated but the court failed to recognise the fact that if a wife is directed to live with her husband against her will then there are high possibilities that she may be forced to indulge in sexual relations with her husband[6].

Marital Rape and Constitutional law
Before analysing marital rape from constitutional law perspective, it is noteworthy to discuss the constitutional validity of RCR and what does the Supreme Court has to say. In the case of Saroja Rani vs Sudarshan Kumar Chada[7]  the Supreme Court finally upheld the constitutional validity of RCR and agreed with the decision upheld in Harvinder case[8]. The court observed that it is valid to treat married women and unmarried women differently and hence it does not violate Article 14 since the institution of marriage fulfils the criteria of reasonable classification under article 14. Thus, it could be said that the exception to rape in IPC is justified since although Rape per se is not unconstitutional but since marriage is based on reasonable classification hence marital rape is allowed and not violative of Article 21.

Marital Rape and its Cultural Significance
Culture and law go hand in hand. Both are interlinked to each other. But for understanding marital rape in its cultural perspective we first have to analyse the difference between public morality and constitutional morality. Constitutional morality is based on the equality of sexes and individual autonomy. It may not be necessary that whatever comes under the ambit of constitutional morality might also come under the scope of public morality. For example- at one stage in time Sati was a culturally and publicly accepted norm, however it was against constitutional morality and hence is now prohibited and punished. Similarly, the concept that that in marital rape the women is presumed to have given consent at the time of marriage might be a socially accepted norm, but it does not stand the constitutional morality ground as it restricts the autonomy of an individual. Thus, it can be said that although our culture might promote marital rape, but the need of the hour is to analyse the concept of marital rape while weighing it with principles constitutional morality.

Proposal and Reforms 
Both the Fifth law Commission and the Ninth law Commission recommended that marital Rape should be considered as a separate offence under IPC. However, the Fifteenth law commission differed from the above recommendation and said that marital rape should not be considered as a separate offence, however recommended that in case the husband and wife are living separately because of any judicial order, then in that case then non-consensual sex with the wife would amount to rape. The biggest reform that is indicated is made in JS Verma Committee which made the following recommendation in respect to marital rape[9]
1)    The idea that wife has given consent at the time of marriage to have sexual intercourse and such consent can not be taken back by her. This view should be discarded as it is discarded in countries including England.
2)    Exception 2 under section 375 should be removed
3)    Marital and other relationship should not be a ground to justify the crime of rape or any sexual offence against women
4)    The fact that the accused is an intimate relative like a husband should not a mitigating factor while awarding sentence to the accused.

[1] Indian Penal Code, 1860, No.45. Legislative Assembly, 1860(India)
[2] T. Sareetha v. T. Venkata. Subbaiah, AIR 1983 AP 356
[3] Ibid
[4]  Harvinder Kaur v. Harmandar Singh AIR 1984 Delhi 66
[5] Ibid
[6] Id
[7] Saroja Rani v. Sudarshan Kumar Chada, AIR 1984 SC 1562
[8] Supra At 4
[9] Government of India Report of the Committee on Amendment to Criminal law (Government of India, 2013) Chapter 3: Rape and Sexual Assault.