Updated: Feb 20, 2022
Written by: Girija Rani Mullapudi
Hello, my dear friends, families, or community, is it either one random thing that is troubling me or that my mind is unable to identify? And the thing was, when it came to sexual assault, bullying, or rape, we all agreed that it was an unethical or egregious crime against a woman.
However, in India, one form of rape is not considered a crime or illegal – “martial rape”.
In India, marital rape is a major problem. Every three seconds, an Indian woman is raped by her spouse, according to 1 in 3 men who cop to raping their wives. It's a crying shame that marital rape is still not illegal in this country after all these years.
Spousal abuse is a long-standing problem in India, and it has only become worse in recent years. Spousal abuse affects about 70% of Indian women, according to the National Crime Records Bureau's (NCRB) "Crime in India" 2019 survey (i). Marital rape is one of the many manifestations of spousal violence. The act of pressuring your partner to have sex without their permission, known as marital rape, is an unfair but all-too-common way to degrade and disempowering women. Today, more than 100 countries have passed laws against marital rape, but India is one of the 36 countries where the crime remains unpunished (ii).
According to Equality Now's survey, The World's Shame: The Global Rape Epidemic, India was one of only ten countries out of 82 that still legalised rape within marriage and exempted the rapist husband from punishment.(iii)
The Indian Penal Code (IPC) proceeds to specify that a husband is exempt from the law for rape against his wife, according to the wife's status. This is a direct example of India's default option being archaic and massively discriminated towards women, where the husband has utter dominance and legal recognition over the wife's rights.
Under the second exemption of section 375 (iv) of the IPC, it has been given that “Sexual intercourse by a many with his own wife, the wife not being under fifteen years of age, is not rape”. Furthermore, the caveat for age was also added into the IPC only due to the several instances of child brides dying due to premature intercourse with their husbands.
The case of Phulmoni Dasi (Queen-Empress vs. Hari Mohan Maiti) in 1881 was one of the most horrible incidents of marital rape. This case deserves special consideration because it drew a lot of attention from politicians and the general public. According to the truth, Phulmoni Devi, an eleven-year-old child bride, died of extreme bleeding when her husband, Hari Mohan, in his mid-thirties, attempted to consummate their marriage despite her being eleven years old.
In 2015, a women's challenge to the Supreme Court was rejected on the grounds that the rule does not change for one woman. In Arnesh Kumar v. State of Bihar (v), the Supreme Court stated that criminalizing marital rape would result in the breakdown of social and family institutions, despite already existing discriminatory rules.
The Verma Committee Report recommended that the exception for marital rape be removed from the act. Marriage is not an irrevocable invitation to sexual activity, according to the study. As a result, the connection between the perpetrator and the victim may be irrelevant in order for him to be charged with the crime (vi).
The UN Committee on the Elimination of Discrimination Against Women has proposed that marital rapes be made illegal in India (vii).
While S.375 (viii) provides an exception to marital rape, the Supreme Court of India ruled in Independent Thought v. Union of India (ix) that sexual intercourse with a girl under the age of 18 is rape regardless of whether she is married or not. “The exemption carved out in the IPC establishes an unnecessary and artificial difference between a married girl child and an unmarried girl child and has no reasonable nexus with any undefined goal desired to be achieved,” the court said.
In its recent judgement in NimeshBhaiBharatbhai Desai vs. State of Gujarat (x),the Gujarat High Court noted that husbands should be reminded that marriage is not a licence to physically rape their wives. By virtue of marriage, a husband does not own his wife's body, and she does not become an object of possession in any way. She does not give up her human right to absolute sovereignty over her own body by marrying, and she is thus well within her rights to give or withhold her consent to marital coitus at any time.
The Supreme Court recognised the right to privacy as a constitutional right in Justice K.S. Puttuswamy (Retd.) v. Union of India (xi), and expressly stated that it entails "decisional privacy expressed by an opportunity to make personal decisions mainly consisting of one's sexual or procreative disposition and decisions in respect of intimate relations." Sexual contact and cohabitation that is forced is a breach of this constitutional right.
VIOLATION OF CONSTITUTIONAL & LEGAL RIGHTS
• ARTICLE 14 (xii)
Marital rape is a violation of the Indian constitution's right to freedom, which is enshrined in Article 14. About the fact that the Indian Constitution grants freedom to all citizens, Indian criminal law discriminates against women who have been raped by their own husbands.
The Exception divides women into two groups depending on their marital status and protects men from committing crimes against their spouses. As a result, the Exception allows married women to be victimised only because of their marital status, while single women are protected from the same actions.
The Supreme Court held in BudhanChoudhary v. State of Bihar (xiii) and State of West Bengal v. Anwar Ali Sarkar (xiv) that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can only be passed if the classification is rationally related to the goal of the act. However, Exception 2 fails the purpose of Section 375, which is to defend women and punish those who commit rape. Exempting husbands from penalty is diametrically opposed to that goal. Simply put, if a woman is married or single, the repercussions of rape are the same.
• ARTICLE 21 (xv)
The guarantees enshrined in Article 21 include, among other things, the rights to wellbeing, anonymity, integrity, healthy working conditions, and a safe climate, according to the Supreme Court's imaginative reading.
The Supreme Court ruled in State of Karnataka v. Krishnappa (xvi) that sexual harassment is an unconstitutional invasion of a woman's right to privacy and sanctity, in addition to being a dehumanising act. Non-consensual sexual contact is considered physical and sexual assault, according to the same ruling.
The Supreme Court in SuchitaSrivastava v. Chandigarh Administration (xvii) equated the freedom to make sexual conduct decisions with the rights to personal liberty, anonymity, reputation, and physical integrity.
• DOCTRINE OF COVERTURE
The origin of this doctrine can be traced back to Victorian-era British colonial rule. During the nineteenth century, India was a British colony. At this period, all Indian rules were heavily inspired by English laws and Victorian norms. The marital exception to the IPC's concept of rape was drafted in response to Victorian patriarchal norms that denied men and women equality, barred married women from owning land, and combined husband and wife identities under the "Doctrine of Coverture."
STATISTICS REVEAL THE TRUTH
Women recorded 1,477 incidents of domestic abuse between March 25 and May 31, 2020. In the first three weeks of the lockdown, the National Commission for Women (NCW) received 587 reports. This was a significant increase from the 396 reports received in the previous 25 days, from February 27 to March 22. More reports were registered during the three months of lockout this year than in the previous ten years. The states of Uttar Pradesh, Bihar, Rajasthan, and Haryana registered the majority of the incidents. (xviii)
Rape is rape regardless of the perpetrator's name and survivor's era. A woman raped by a stranger, with an eye to a horrific assault, lives with a woman raped by her husband. Despite seventy three years of freedom, our penal legislation passed by the British was still largely unchanged. However, English rules were revised and marriage violations in 1991 were criminalised. However, there has been no concerted involvement in resolving this issue until now by any indigenous government.
i Crime In India 2019, National Crime Records Bureau (Ministry of Home Affairs) Government of India, https://ncrb.gov.in/. (Visited on 22 May 2021) ii Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
iii Marital rape is not a crime in India. It needs to be, Equality now a just world for women and girls, jan 31 2020, https://www.equalitynow.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be. (Visited on 22 May 2021) iv Indian Penal Code, 1860( No. 45 of 1860) § 375. vArnesh Kumar v. State of Bihar,(2014) 8 SCC 469.
vi Justice Verma committee report on amendments on criminal law, Jan 23, 2013,http://apneaap.org/wpcontent/uploads/2012/10/Justice-Verma-Committee-Report.pdf. (Visited on 22 May 2021) vii UN Committee on Elimination of Discrimination against Women, 2019, https://ijrcenter.org/un-treatybodies/committee-on-the-elimination-of-discrimination-against-women/. (Visited on 22 May 2021) viii Indian Penal Code, 1860( No. 45 of 1860) § 375. ixIndependent Thought v. Union of India, (2017) 10 SCC 800.
xNimeshBhaiBharatbhai Desai vs. State of Gujarat ,( 2018) SCC OnLineGuj 732 xiJustice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161. xii The constitution of India, 1949. xiiiBudhanchoudary v. State of Bihar, AIR (1955) SC 191 . xivState of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 . xv The constitution of India , 1949. xviThe State of Karnataka v. Krishnappa, (2000) 4 SCC 75. xviiSuchitaSrivastava v. Chandigarh Administration, (2008) 14 SCR 989.
xviii Marital Rape: How Bad is the Problem in India and Why Coronavirus-led Lockdown Made it Worse,makersindia