Criminalisation of Marital Rape

The Author of this blog is Ms. Vrinda Sareen of Amity University, Noida 

INTRODUCTION

The Indian Penal Code (‘IPC’) in S.375 criminalises the offence of rape. It is an expansive definition which includes both sexual intercourse and other sexual penetration such as oral sex within the definition of ‘rape’. However, in Exception 2, it excludes the application of this section on sexual intercourse or sexual acts between a husband and wife. Thus, a wife under Indian law does not have any recourse under criminal law if a husband rapes her.

Exception 2 of section 375 of IPC states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.[1]

On the basis of the legal interpretation of Exception 2 of Section 375 of IPC, it can be stated that since consent is a pre-requisite in order to compose the crime of rape, therefore in cases of marital relationship an irrefutable presumption with respect to the consent towards the sexual intercourse act is drawn. Another reason for carving out this exception is to protect the institution of marriage, which has been reiterated time and again by the legislature as well as the courts.

While on the other hand, there is a provision in the Indian Penal Code criminalising one form of marital rape:

Section 376B of IPC states that “Sexual intercourse by husband upon his wife during separation:

Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

Explanation - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of S.375”.[2]

So the basic idea is that marital rape is not a criminal act in India. But the question here arises that keeping in view the present changing scenario of India shall marital rape be criminalised in India or not?

PROGRESS OF LAW IN INDIA CAN BE TRACED BACK TO FOLLOWING STAGES

Ø  The first report to deal with this issue was the 42nd Law Commission Report.[3]This report made two important suggestions: First, it noted that in instances where the husband and wife were judicially separated, the exception clause must not apply. Second suggestion made in this report was regarding non-consensual sexual intercourse between women aged between twelve and fifteen years. It stated that the punishment for such offences must be put into a separate section and preferably not be termed rape.

Ø  The second report to deal with the issue was the 172^nd Law Commission Report.[4]It was argued that when other instances of violence by a husband towards wife are criminalised, there was no reason for rape alone to be shielded from the operation of law.

Ø  ‘Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’)[5] in 2012 made two-fold recommendations with respect to the issue. First, that the exception clause must be deleted. Second suggestion was that the law must specifically state that a marital relationship or any other similar relationship is not a valid defence for the accused, or relevant while determining whether consent existed or not and that it was not be considered a mitigating factor for the purpose of sentencing.

Ø  In light of this, the Criminal Law Amendment Bill, 2012 (‘Amendment Bill, 2012’) was drafted.[6] In this Bill, the word ‘rape’ was replaced with ‘sexual assault’ in an attempt to widen its scope but the Bill did not contain any provision to criminalise marital rape. The Amendment Bill, 2012 did not take into account the suggestions laid down in the J.S. Verma Report. The Parliament Standing Committee on Home Affairs in its 167th Report(‘Standing Committee Report’) reviewed this Amendment Bill, 2012 and also organised public consultations. Here, it was suggested that S.375 must be suitably amended to delete the exception clause. However, the Standing Committee refused to accept this recommendation. The Standing Committee Report argued that, first, if they did so, the “entire family system will be under greater stress and the committee may perhaps be doing more injustice”. Second, the Committee reasoned that sufficient remedies already exist since the family could itself deal with such issues and that there exist a remedy in criminal law, through the concept of cruelty as under §498A of the IPC.

Ø  As per the Criminal Law (Amendment) Act of 2013, a change was brought in the definition of rape as provided under S.375 of IPC. It states: a man is said to commit rape not only if he indulges in sexual intercourse against the will or consent of a woman or by placing her under any fear or misconception, but also if he indulges in acts of perversity against the person of a woman.

Even after the recommendations being made from time to time looking at the changing needs of the society, Exception 2 to S.375 of IPC still prevails.

RELEVANT JUDGEMENTS

In the case of Independent Thought v. Union of India, 2017 (10) SCC 800, the Supreme Court held that Exception 2 to S.375 needs to be read in such a manner that for such exception to be available, the wife has to be above 18 years of age and therefore, the age limit of 15 years prescribed by the 2013 amendment was struck down.

In the case of Foundation v. Union of India, the criminalisation of marital rape has been contended on the grounds that Exception 2 to S.375 is unconstitutional and violative of fundamental rights of married woman under Articles 14, 15, 19 and 21 of the Constitution of India. Currently, the petition is pending in the High Court of Delhi.

MODEL OF CRIMINALISATION OF MARITAL RAPE: PERSONAL OPINION

The agenda behind discussing the model for criminalisation of marital rape is that, the report of J.S. Verma Committee on one hand recommends the deletion of Exception 2 to section 375 of IPC whereas on the other hand the 42^nd Commission Report suggested that marital rape be put into a separate section, and not be called ‘marital rape’ and also have a different punishment. The approach of the model is as follows:

·         Firstly, the mere removal of the exception will not be sufficient to cover all the circumstances of marital rape as it will lead to excess of judicial discretion and consequently leading to arbitrary consequences. Secondly, it is necessary to lay down the exception in terms of law so that the person knows which act will constitute a crime.

·         There must be no difference in the sentencing policy. S.376 of the IPC lays down the sentencing policy. The punishment for rape is between seven years to life imprisonment.  However,  S.376B  deals  specifically  with  husband  and  wife  living separately  has  a  different  sentencing  policy  with  the  punishment  between  two  years  to seven  years.  This  clearly  shows  that  the  intention  was  to  bring  about  a  lesser  standard  for punishing rape when the husband was the convict. However, on grounds of equality as given in Article 14,  we  argue  that  this  is  unconstitutional.  There is no  justification  for  having  a lesser punishment policy because of the relationship of existence of marriage. In light of this, we propose that §376B be repealed and the sentencing policy work as it does.

·         Consent in cases of marital rape must not be presumed because Consent is understood on the basis of circumstantial evidence. Considering the nature of the act of marital rape, producing evidence is extremely difficult.

Due to the crime being of private nature, oftenly, the only proof will be that of the wife’s testimony. In  such  instances,  it  is  extremely  important  to  look  for  other  forms  of evidence  to  corroborate  charges  of  rape.  This  means  that  if  the  husband  has  had  patterns  of cruelty,  domestic  violence,  it  will  be  relevant  while  determining  whether  the  husband  has committed  rape.  It  need  not  be  a  mandatory  factor  but  must  work  as  a  contributing  factor. Although, it will  be  in  conflict  with S.53  and  54  of  the Indian Evidence Act,  1872 as  past  bad character is not relevant. However, in cases of marital rape, this might sometimes be the only significant  source  of  corroborative  evidence  to  prove  a  history  of  assault.  For  example,  if  a wife applies for protection under the PWDVA, 2005 on the basis of being a victim of ‘sexual assault’, this must be treated as admissible evidence.

·         Expert testimony, specifically  testimonies  of  doctors,  will  also  be  relevant  since  the  mental  trauma  and  the psychological  trauma  that  the  victim  faces  can  be  established  through  such  evidence.

CONCLUSION

Therefore, from the close reading of Exception to S.375 it can be stated that there is an overwhelming misconception that Exception 2 grants absolute immunity to husband against the acts done towards wife which would otherwise constitute rape. On the other hand, the immunity is provided only for sexual intercourse with wife being more than 18 years of age and not for the pervert act against the person of his wife.

In N v. State of Chhattisgarh CPR No. 1415 of 2019, the court accepted the plea of the victim thereby making prima facie charges against the husband based on the allegations of involvement of unnatural sexual intercourse and insertion of external objects by a husband on the person of his wife.

Therefore, in my opinion the argument that the marital rape cannot be criminalised in view of the socio-economic conditions of the country as stated in the judgement of Independent Thought v. Union of India, is not a valid reason and in fact makes the Indian society regressive rather than progressive.

In light of all of this, I propose a model to criminalise marital rape. First, I propose  that  the  exception  clause  be  deleted.  Second,  I propose  that  it  be  specifically highlighted  that  the  relationship  of  husband  and  wife  will not be a defence. Third, I propose that the sentencing policy be the same. Fourth, I propose  for  certain  amendments  in  the  Evidence  Act  to  ensure  that  it  takes  into  account  the complexities of prosecution in cases of marital rape.

 

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[1]The Indian Penal Code, 1860. §375

[2]The Indian Penal Code, 1860, §376B

[3] Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at

http://lawcommissionofindia.nic.in/1-50/report42.pdf

[4] Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at

http://www.lawcommissionofindia.nic.in/rapelaws.htm

[5]JUSTICE J.S. VERMA COMMITTEE, Report of Committee on Amendments to Criminal Law (January 23, 2013)

[6]The Criminal Law Amendment Bill, 130 of 2012