The issue of Marital Rape has been in the limelight for the past few months. Plea for including marital rape as an offence by making suitable amendments in the Indian Penal Code had been challenged both in the Supreme Court and the Delhi High Court a few months ago and the matter is pending since then. Section 375 of the Indian Penal Code has been challenged as it discriminates married woman being sexually assaulted by their husbands.

The breach and violation of a woman’s bodily autonomy in cases of offences of different nature[1] have been accorded different levels of punishment according to gravity.

Rape, the gravest among these is the unlawful and forceful transgression in a woman’s bodily privacy without her consent and hence robbing her identity and dignified physical existence.

Except marriage, criminal assault in all other cases[2] without consent has been dealt with sternly by the Courts[3] and punished accordingly with the appropriate punishment with regard to the circumstances of each case.

The exception to section 375 of the Indian Penal Code absolves the man of any criminal liability if sexual intercourse is with his own wife above fifteen years of age.

The relation between a husband and wife stands on a different pedestal than all other relations as it is only in this institution that a person can have the joy of establishing a family by means of procreation and thus in a real sense have a happy union and bonding irrespective of its nature and character[4].

Rights, duties and obligations in a marriage for both the spouses are mutual and co-extensive and also includes the right of continuing a natural biological process. Consent with respect to marriage for furthering the avowed purpose has to be treated differently with respect to consent in all other cases.  There appears to be a little disbalance between the rights of both the spouses with respect to the criminal culpability regarding marital rape.

A woman’s natural desire of becoming a mother and thus voluntary submission has been accorded the status of consent whereas expression of desire by a man for becoming a parent and a father has to be treated a criminal offence if there is absence of desire from the side of the woman and thus be given the status of marital rape.

Stated differently, a man’s rights in a matrimonial relationship have been put on a lower pedestal and it is the sole prerogative of the woman to decide the course of action after tying the nuptial knot. Absence of consent from the woman for procreation is giving her the sole right to decide the time of consummation/procreation. Three scenarios emerge from the situation:

1. If both the partners voluntarily agree, no complexities arise.
2. If the man wishes for procreation but the woman is unwilling, the male must give up his desire or else criminal culpability would come into force.
3. If the woman is willing and the man does not agree he is cheating upon the wife for non-fulfilment of marital obligations.

The question of violence, abuse, or forcible sexual intercourse would have more credence and weight where the marriage is not voluntary and has been solemnized under pressure, duress or without the consent of one or both the parties. A clear distinction between forced and voluntary marriages should be drawn for accusation of marital rape. Forced marriages take place with no consensus between the bride and the groom.[5] It may be defined as a union where one or both parties are coerced into marriage against their will and under duress. In most countries this element of duress can include physical, psychological, financial, sexual and emotional pressure.[6]  There is often a continuum of coercion used to compel of marriage, ranging from outright physical violence to subtle psychological pressure.[7]  The absence of consent to marriage eliminates the possibilities of love, emotional and psychological bonding between the spouses. Consummation in such cases is more likely to be forceful and establishment of physical relations in these circumstances can very well be termed as sexual abuse[8] which is a corollary to forced marriage and should be punished under the appropriate law[9].

This is in stark contrast to marriages solemnized voluntarily with the consent of both the partners[10] or arranged with the consent of the parents after a considerable period of courtship. The emotional and psychological bonding is strong in contrast to forced marriage. Any choice or decision of procreation for furtherance of establishment of a family should be mutual and the choice and timing of consent to sexual intercourse should not be the sole prerogative of woman.

The colour, character and nature of libido, it appears, is gender specific. With respect to the female it has a greater sanctity and earns respect. The inheritance and possession of libido in male gives it a dark, evil and shady characteristic.

With respect to the woman, it is her innate wish, a pious and inalienable right for completing a natural biological process and both cannot be delinked. Whereas for a man it is a doubt and question on his character and integrity and any use thereof, howsoever lawful may result in his social stigmatization and criminal culpability.

                                                THE MISUSE

Laws are prone to misuse by picking up the loopholes or leaks. Sexual relations between married partners is a private affair away from the public gaze. Proving consent or its absence by one of the partners by way of evidence is thus a very daunting task. Since matrimonial relations are not static and keep fluctuating, any deterioration of relations or daily or petty squabbles may in turn encourage the female partner[11] to take recourse to law by accusing the husband of marital rape. Relations turning sour would therefore run the risk of false accusations and setting the criminal law in motion resulting in protracted litigation.

Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in relationship among the parties. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but have also lead to enormous social unrest affecting peace, harmony and happiness of the society.[12]

The number of cases where both persons, out of their own will and choice, develop consensual physical relationship, when the relationship breaks due to some reason, the women use the law as a weapon for vengeance and personal vendetta. They tend to convert such consensual acts as an incident of rape may be out of anger and frustration thereby defeating the very purpose of the provision. This requires a clear demarcation between rape and consensual sex.[13]

If matrimonial rape is declared as an offence, the risk and chances of false and frivolous cases are likely to rise as it would become very easy for the wife lodge a complaint of rape on grounds of absence of consent when the matrimonial relations turn sour and in such cases the chances of conviction of the husband might become high on account of presumption drawn under section 114A[14] of The Indian Evidence Act, 1872. It will not only disturb the individual relations but increase in the number will also set a wrong precedent for social harmony.

Any change in law is desirable only after its broader and holistic interpretation. An amendment based on narrow considerations with heavy leanings or tilt on one side may prove to be counterproductive. Marital rape if declared as an offence is likely to provide more teeth to women centric laws with a greater chances of its misuse. The necessary amendments would be increasing the age of wife for giving consent under Exception II of section 375 of the Indian Penal Code from fifteen to eighteen years as the same has also been provided under clause six of section 375. This would also be necessary because of the following factors:

1. The legal age of marriage under clause (iii) of section 5 of the Hindu Marriage Act, 1955 for a bride is eighteen years.
2. The Prohibition of Child Marriage Act, 2006 declares a female under eighteen years of age as a child.[15] Section 3 of the said act declares child marriage[16] voidable at the option of the contracting party.
3. In a criminal trial for the offence of sexual intercourse by a man with his own wife, the Court only takes cognizance of the offence if the wife is under eighteen years of age.[17] This is in stark contrast to Exception II to section 375 of The Indian Penal Code, 1860 and is an anomaly and lacuna in law.

Declaring marital rape as an offence should only be done keeping in mind all these factors.  A one sided gender based approach would not be feasible.

[1] Sections 354, 354A, 354B, 354C, 354D, 509 of the Indian Penal Code etc.

[2] Strangers, cousins or relatives of whatever degree and nature

[3] In a plethora of judicial pronouncements

[4] Across different religions marriage is and may be considered a contract, a pious obligation, a religious duty having the common purpose of tying the nuptial knot under personal laws for the purpose of cohabitation and thus establishing a mutual bonding of trust and togetherness.

[5] Preventing and eliminating child, early and forced marriage- Erik Oude Alink

[6] Forced marriage: An analysis of legislation and political measures in Europe- Alexia Sabbe. Marleen Temmerman. Eva Brems. Els Leye. Springer Science+Business Media Dordrecht 2014

[7] Force marriage: Wikipedia the free encyclopaedia

[8] Which might be interpreted as a synonym of marital rape covered under exception (ii) of section 3 of the Protection of women from Domestic Violence Act, 2005

[9] Protection of Women from Domestic Violence Act, 2005

[10] A marriage where the individuals love each other or get married with or without the consent of their parents. Also known as love marriage. Love marriage: Wikipedia the free encyclopaedia.

[11] Depending on individual temperament

[12] (2010) 7 SCC 667

[13] Geeta Sharma vs State of NCT of Delhi and Another-CRL.L.P. 137/2017 and CRL.M.A. 4027/2017 decided on 21-07-2017

[14] Presumption as to absence of consent in certain in certain prosecution for rape

[15] Section 2 (a)

[16] 21 years for male and 18 years for female

[17] Section 198 (6), Code of Criminal Procedure, 1973.

Author:

Saurabh Sinha, The author is a New Delhi based researcher and writer.