Written By: Aditya Sharma
RAPE AND MARITAL RAPE
India has a constitutional history of almost 73 years in the terms of post-independence. However, the development of the Indian constitution started with the Regulating Act of 1773, being one of the oldest in the world. As the times changed and the water flowed, many provisions and principles were added, and the Laws were formed. One such Law is Rape and marital rape.
India was ruled by the Britishers for almost 200 years, and it was the only one who made formal laws in India. However, when they arrived and started developing laws, they didn’t know Indian customs and practices, and as a result of which many principles were to be introduced at a later stage. Britishers made laws based on the knowledge of their customs and country.
However, it was Macaulay’s thinking that the principles like Rape and kidnapping were incorporated into the Indian Penal Code in their vary origin. At that time, that is the nineteenth # Maritial Rape is Still Rape 2 century, it was a belief that if a woman is raped or abducted, it is generally with her consent only which resulted in the dishonour of her family by the society. However, with the introduction of sections 375 and 376 in the IPC, these offences got some acknowledgement.
Rape can also be termed as one of the most heinous offences that a human being can perform. It is an offence against women or a girl child below the age of 16, in which an offender sexually harasses a woman in absence of her free will and consent. The punishment prescribed for the said offence under the IPC is a “rigorous imprisonment for a term not less than ten years and in some cases even life imprisonment.”
According to a report published by the National Crime Records Bureau, there were 28046 cases reported for the offence of rape against women (including both slabs, i.e., below 18 years of age and above 18 years of age) all over India in the year 2020. This is an alarming figure which shows that almost 75 cases were reported each day for offences relating to rape. The report also pointed out that Rajasthan was the state where the greatest number of cases were reported (5310) during the said period. However, these are only the figures which were reported. Imagine if the figures which are reported are these high, what would be the scenario if we include even the cases which go unreported due to various reasons like the pressure from family so that they don’t get defamed.
IPC defines rape under its section 375 as :
“A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or (c) manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, 3 under the circumstances falling under any of the following seven descriptions: — First. — Against her will. Secondly. —Without her consent. Thirdly. —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. —With her consent when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. —With or without her consent, when she is under eighteen years of age. Seventhly. —When she is unable to communicate consent.
Explanation 1. —For this section, “vagina” shall also include labia majora.
Explanation 2. —Consent means an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act: Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. —A medical procedure or intervention shall not constitute rape.
Exception 2. —Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.
On an analysis of the given section, we can infer that all the sexual acts of penetration (penetration, in this case, can be through body parts or objects) by a man against a woman without her consent contributes to the offence of the Rape. Rape is a heinous crime, intolerable to society. It not only just affects the victim and their family but also the whole society, by disturbing the peace and harmony in the society.
This section provides for 2 exceptions which are acts by a medical practitioner to operate and treatment which is justified but the other exception doesn’t seem to be much justified which is sexual committed by the husband against his wife even without consent.
Under section 375 of IPC, explanation 2 provides that the sexual acts which are committed by a husband against his wife is not rape even if it were to be committed without her consent. This seems to be unjustified but has certain foundational principles behind it. One of them is the belief in the Indian society that by solemnizing a marriage both, husband, and wife, enter into a relationship where the consent for each other’s acts is impliedly given during the wedding. According to this belief, one can infer that whenever a husband commits any act there is an implied consent of his wife behind him, then whether the act is a day-to-day routine or sexual intercourse. In societies, all over the world, it is believed that marriage is a sacred institution and consent in this case is implied and does not require express consent.
Another reason for the exception which can be provided is that, establishing a consent. It is often observed that the most difficult part to establish in the court of Law is the mental element, like consent and intention. In the case of a relationship between husband and wife, it is very difficult to prove that the consent which was given was free. There is also one exception provided under this section i.e., females below the age of 18.
As also pointed out in the NCRB report almost 75 cases of rape were recorded every day, it was also observed that 94% of these cases were committed by a closely related person to the victim. However, the fundamental issue raised against the Criminalization of marital rape is the destabilization which will be caused in the society, since marriage is a social institution and something like this would cause damage to family systems established. There is also another contention that women are generally conservative and are neither motivated nor are financially independent to stand out and report something like this, which creates a hindrance in the system. However, there are other provisions in the IPC also which protect the rights of a wife like domestic violence, etc. and also the Protection of Women from Domestic Violence Act which protects women from different kinds of domestic violence.
Nevertheless, before the Supreme Court judgment of 2017 in the case of Independent Thought vs Union of India, where it was held by the supreme court that rape of a girl will be considered rape, given that the girl was victimized as a minor. This judgement was delivered because of the Nirbhaya case.
Through the case of Independent Thought v. Union of India [(2017) 10 SCC 800], it was also cleared that it doesn’t matter whether the convicted was charged for rape under IPC or sexual penetrative assault under POCSO, the end punishment remains the same in both the cases as was explained by Madan B Lokur, J in his judgement in Para 92 as:
“Assuming some objective is sought to be achieved by the artificial distinction, the further question is: what is the rational nexus between decriminalizing sexual intercourse under the Indian Penal Code with a married girl child and an unclear and uncertain statutory objective? There is no intelligible answer to this question, particularly since sexual intercourse with a married girl child is a criminal offence of aggravated penetrative sexual assault under the POCSO Act. Therefore, while the husband of a married girl child might not have committed the rape for the Indian Penal Code, he would nevertheless have committed aggravated penetrative sexual assault under the POCSO Act. The punishment for rape (assuming it is committed) and the punishment for penetrative sexual assault are the same, namely imprisonment for a minimum period of 7 years which may extend to imprisonment for life. Similarly, for an 'aggravated' form of rape, the punishment is for a minimum period of 10 years imprisonment which may extend to imprisonment for life (under the Indian Penal Code) and the punishment for aggravated penetrative sexual assault (which is what is applicable in the case of a married girl child) is the same (under the POCSO Act). In other words, the artificial distinction merely takes the husband of the girl child out of the clutches of the Indian Penal Code while retaining him within the clutches of the POCSO Act.”
Judiciary acts as a custodian of the rights of citizens. But in this case, following the principles of Separation of power, there is not which judiciary can do, however, the legislature can. All over the world, 150 countries have already criminalized Marital rape (as of 2019), India should also think of it. There will be hindrances in doing so but overcoming them is also necessary.
It can be concluded that rape is classified as an offence under IPC. It has an exception of Marital rape where a husband is not held liable for the incapacity of rape under the IPC. However, he can be held liable for his acts under different penal Laws like the POCSO Act where he will serve the same sentence that he would have ordinarily served by the means of IPC.
Indian Penal Code, 1860 (Act 45 of 1860).
National Crime Records Bureau, India, available at: TABLE 3A.3.xlsx (ncrb.gov.in) (last visited on February 04, 2022).
Indian Penal Code, 1860 (Act 45 of 1860), s. 375.
Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005).
Independent Thought v. Union of India [(2017) 10 SCC 800].
Mukesh & Anr vs State for NCT Of Delhi & Ors [(2017) 6 SCC 1].
The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).
Independent Thought v. Union of India [(2017) 10 SCC 800].