BHARATIYA NYAYA SANHITA FALLS SHORT: NO JUSTICE FOR MARITAL RAPE VICTIMS BY - MR. SANTOSH SATI
BHARATIYA
NYAYA SANHITA FALLS SHORT: NO JUSTICE FOR MARITAL RAPE VICTIMS
AUTHORED BY - MR. SANTOSH SATI[1]
ABSTRACT:
Rape is considered the most heinous
crime against women. According to Section 63 of the Bharatiya Nyaya Sanhita,
2023 (BNS), rape is defined as an act committed against a woman without her consent.
Therefore, the primary factor for sentencing the accused in rape cases is the
absence of consent. What about the issue of marital rape, which remains a
hidden problem in Indian households? It has not been made a criminal offense
and is not explicitly addressed in any laws or statutes, including the Bharatiya
Nyaya Sanhita (BNS). The BNS only considers sexual intercourse by a man with
his wife as an offense if the wife is below 18 years of age. However, what
about the protection of other categories of married women? Does that constitute
a breach of the basic rights? Why is marital rape still considered a taboo? The
explanation, as stated by academics, is based on the belief that a husband
cannot be held responsible for raping his legal wife. This is because it is
argued that a woman has consented to sexual relations via the marital contract
and so cannot withdraw her assent (referred to as Sir Matthew Hale's consent
thesis). They often reference cultural and customary values, community
standards, and the sacredness of marriage as justifications for keeping marital
rape legally non-punishable. They argue that making marital rape illegal might
possibly destabilize the foundation of marriage, violate private rights, and
lead to a complex legal situation inside the family structure. The article is
on the historical context of making marital rape a criminal offense. It
discusses India's efforts in criminalizing marital rape and how BNS falls short
of the expectations, it also examines the global viewpoint on this issue by
citing instances from nations that have already criminalized it. The text
delves into the experiences of many countries, analyzing the influence of
legislative changes on public views, survivors' ability to seek justice, and
the overall occurrence of marital rape.
Introduction
According to data released in 2022 by
the National Crime Reports Bureau (NCRB), there are approx. 90 new cases of
rape reported daily, making it one of the most heinous crimes against women.
Rape, as defined under Section 63 of the newly introduced Bharatiya Nyaya
Sanhita, 2023 (hereinafter referred as BNS) refers to any sexual intercourse
between a man and a woman without her consent. Despite its evident
significance, this newly introduced legislation notably does not encompass
marital rape. Marital rape refers to any sexual act carried out by one spouse
against the other without the victim's permission, occurring inside the
confines of a marriage. Marital rape is a kind of sexual abuse and domestic
violence.
Although sexual intercourse inside
marriage was once seen as a marital prerogative, several nations now classify
engaging in sexual activity outside of marriage as rape and are taking strict
measures to combat this offense. Conversely, several traditional cultural
groups refuse to accept it.
This paper aims to elucidate how the
BNS failed to incorporate the concept of marital rape and instead retained the
legacy of colonial era law when it comes to marital rape. The analysis also takes
a worldwide perspective, investigating the approaches taken by countries that
have made marital rape illegal. By examining different nations, we may gain a
deeper understanding of how legislative changes as expected from the BNS might have
impacted the prevalence of marital rape, the capacity of survivors to seek
justice, and the public's opinion of this crime.
HISTORICAL BACKGROUND:
Traditionally, rape was mostly seen
as a violation of property rather than an offense against an individual. In
ancient civilizations, rape was mostly seen as a violation of a father's or
spouse's property rights, rather than as a violation of a woman's right to
physical independence or consent. Due to the prevailing notion that a woman is
seen as the possession of her husband, the husband is exempt from being
prosecuted for the crime of rape.
The concept of marital exemption to
rape is credited to Sir Matthew Hale, former chief justice of the Court of
King's Bench in England and a prominent English jurist of the seventeenth
century. Hale argued that a husband cannot be held responsible for committing
rape against his own spouse[2].
The legal wife has willingly
surrendered herself to her husband by their mutual marriage consent and
contract, and she cannot retract this decision. The inference was that after a
couple is married, the husband would no longer be prosecuted for raping his
wife[3].
Religious perspective on marital
rape:
Hindu Law:
The Hindu religion does not recognize
or accept the occurrence of rape inside the institution of marriage. In
Hinduism, women are highly esteemed and regarded as "Goddess Laxmi,"
while men are entrusted with the duty of ensuring them happiness and safety.
Without a doubt, if she is miserable, the family will inevitably collapse.
Women are confined to higher pedestals, and the Hindu religion specifically
bestows punishment for the act of rape and engaging in illegal relationships.
It lacks any inclination to intrude into individuals' personal affairs[4].
Islamic Law:
In Islam, sexual encounters within a
marriage are generally considered permitted, whereas those occurring beyond of
a wedding are considered banned (haram). Although sexual contacts inside a
marriage are typically seen permissible, will be considered unlawful During the
holy month of Ramadan or when a woman is pregnant. So, we can say that the
concept of marital rape is a unheard concept in Islam[5].
Christian Law:
The concept of rape inside the
wedlock is not specifically addressed in Christianity; instead, it focuses on
the institution of marriage and the associated responsibilities. The Bible
states that neither the woman nor the husband has complete power over their own
bodies; rather, they are both subject to one another. Furthermore, it states that both parties
shall not strip each other without mutual consent. During a certain duration,
if a couple fails to unite, they may be tempted by Satan to lose their ability
to restrain themselves. The Bible advises that both partners should fulfill
their marital obligations[6].
MARITAL RAPE CRIMINALISATION IN OTHER
NATION STATES
Position in United Kingdom:
In England, Sir Matthew Hale proposed
a broad notion that husbands are not legally responsible for engaging in sexual
intercourse with their wives. This is based on the belief that once a woman
gives her consent to intercourse at marriage, she cannot withdraw it[7]
but in the case of R V Clarke (1949)[8],
the wife successfully secured a judicial separation order. However, she
experienced sexual harassment during this time, which was brought to the
attention of the court. It has been determined that the individual is being
accused of committing rape. In case of R v. Steele (1976)[9],
the woman decided to leave her husband and seek refuge at a nurses' home
because to significant problems in their marriage. However, the husband
unlawfully entered the house and subjected her to harassment without her
consent. In this case, the court supported the hale argument. In 1991, the case
of R v R[10] radically
transformed the landscape by enacting legislation that recognizes marital rape
as a legally actionable offense. In this particular instance, an individual
(referred to as "R") was found guilty of trying to sexually assault
his spouse, and he contested the verdict by using the marital rape exception.
Following many appeals, the House of Lords conducted a review of the case. The
members of the House of Lords unanimously agreed to reverse the common-law
ruling and affirm the man's conviction for rape. At present being in a
matrimonial relationship does not exclude an individual from being held
accountable for committing a sexual crime on her wife as defined by the Sexual
Offences Act of 2003.
Position in United States:
In the case of Commonwealth v.
Forgerty[11] in the
United States, the court ruled that a husband cannot be charged with rape
against his wife. The court also determined that the husband may utilize the
institution of marriage as a defense. Prior to the 1970s, conjugal rape was not
considered a criminal offense in the United States, similar to the legal
approach in the United Kingdom where Hale's theory was applied.
However, in the late 1970s, the
feminist movement initiated the criminalization of marital rape in all 50
states. The landmark case of Oregon V Rideout (1978)[12]
marked the first prosecution for marital rape, although the husband was
ultimately acquitted. Subsequently, in Commonwealth V James.K. Chretien (1979)[13],
the first conviction for marital rape occurred. This led to the implementation
of three different approaches to address marital rape: removing it without any
additional language, clarifying that marriage is not a defense for rape, and
introducing a separate offense known as spousal rape. In 1976, the state of
Nebraska became the first of all fifty states to make marital rape a criminal
offense.
Position in Canada:
Section 271 and 278 of the Canadian
Criminal Code include information on sexual assault and the conviction of a
spouse for sexual assault. Prior to 1983, marital rape was not considered a
criminal offense in Canada. During the 1970s and 1980s, a feminist movement
emerged with the goal of repealing these restrictions. Women demanded several
measures to enhance the legal protection against sexual offenses, including the
establishment of marital immunity, the requirement of confirmation and a recent
complaint, safeguards against questioning about their sexual past and
reputation, and a stronger reaction to sexual assault against women.
Position in France:
The legislation criminalizes rape,
including within marital relationships, as well as domestic abuse, and the
authorities consistently and efficiently implement the law. In 1990, the Court
of Cassation granted permission for the prosecution of spouses in cases of rape
or sexual abuse. Marital rape was made illegal in 1994 via legislation
94-89. Additionally, a second legislation was approved on April 4, 2006, which
considers rape by a spouse as an aggravating factor in the prosecution of rape
cases.
RAPE LAW IN INDIA
The first case that was bought in is
the Tukuram V State Of Maharashtra case, also known as the Mathura rape case, a
girl was raped by police officers. The Supreme Court ruled that it was not
considered rape because she did not ask for help and it was done with her
"consent". The court also suggested that she was accustomed to
engaging in sexual activity and may have provoked the police officers. This
case sparked criticism for the mistreatment of rape victims, leading to the
addition of sections 376 (a) to (d) and a shift in the burden of proof from the
victim to the accused. Additionally, section 114(A) was added to the Indian
Evidence Act. Following this, the infamous Delhi rape case, also known as the
Nirbhaya rape case, occurred. In 2013, the Justice VS Verma committee
introduced the Criminal Amendment Act 2013, which expanded the definition of
rape. The committee also recommended the whole and full criminalization of
marital rape, emphasizing that it violates the right to life.
In India, the act of marital rape is
not recognized as a criminal offense. The Protection of Women from Domestic
abuse legislation, 2005 was passed by the Parliament of India with the aim of
enhancing the safeguarding of women's rights as provided by the Constitution.
The legislation specifically targets women who are subjected to any kind of
abuse inside their household and other connected situations. However, it failed
to include Marital Rape under its jurisdiction. The United Nations Population
Fund has reported that approximately 736 million women worldwide, which is
nearly one-third of all women aged 15 and older, have experienced physical
and/or intimate partner violence, sexual assault another person, or both, at
least once in their lifetime. The 172nd law commission report proposes the
invalidation of the exemption provided in section 375 of the Indian Penal Code
(IPC). It suggests that being the spouse of the victim should not be considered
as a mitigating circumstance recognized by the law.
The 17th Justice VS Verma committee
brought about a substantial amendment in the Criminal Act of 2013. They also
proposed the criminalization of marital rape as an offense. They advised that
marriage should not be considered a determining element for granting
permission, and the connection between the individuals should not be considered
a mitigating factor.
The Indian Penal Code (IPC) does not
explicitly disregard the concept of marital rape, but it indirectly addresses
it. The IPC states that if a wife is above 15 years old, it will not be
considered rape. This creates a distinction between married and unmarried girls
who are below 15-18 years old. However, other statutes such as the Prohibition
of Child Marriage Act, 2006; the Protection of Children from Sexual Offenses
Act, 2012; and the Juvenile Justice Act, 2015, define a "child" as
someone below 18 years old. It is worth considering why the age of consent for
sexual intercourse cannot be set at 18. As a result, in the case of Independent
Thought v. Union of India, the age was increased from 15 to 18. In the case of
Hrishikesh Sahoo v. State of Karnataka, Justice M Nagaprasanna ruled that in
certain specific circumstances, when a husband commits rape against his wife,
he cannot invoke the exception outlined in Section 375 of the Indian Penal Code
(IPC). This is because the exemption provided by the law is not absolute. The
court ruled that no legal exception may be so unrestricted that it permits the
conduct of crimes against society. According to the court, regardless of the
relationship between the individuals involved, rape is defined as a male
performing a non-consensual sexual act on a woman. If an action is punished for
a man, it ought to be punishable for a man, even if that guy is a spouse. The
number is 20.
The ruling has been temporarily
halted, and the High Court of Karnataka has submitted an affidavit affirming
the correctness of the judgment. Additionally, the court has issued the
suggestion of the Justice Verma Committee, which states that a marital or other
link between the offender and victim should not be considered.
JUDICIAL STANCE ON MARITAL RAPE:
Following a notable adjustment in the
legal age for granting consent, there have been rulings that strengthen the
criminalization of marital rape. One such ruling is the case of RIT Foundation
v Union of India[14], where
Justice Rajiv Shakdher held that marital exemption is a violation of
Article 14, 15, 19(1)(a), and 21. However, Justice Hari Shankar expressed a
contradictory conclusion, arguing that it was not unlawful.
The case of X vs Principal Secretary,
Health and Family Welfare Department, Govt of NCT Of Delhi[15],
included the inclusion of the terms "sexual assault" or
"rape" in rule 3B(a) of the MTP Act. This regulation pertains to a
husband's act of sexual assault or rape performed on his wife. These two
judgments have provided hope for the criminalization of marital rape.
In the case of Nimeshbhai Bharatbhai
Desai v. State of Gujarat[16],
the court ruled that married women are not allowed to file charges of rape
against their legal husbands. However, the court emphasized that it is now
necessary to include the idea of "implied consent" into the
institution of marriage. The law must prioritize and protect the rights of
physical autonomy and integrity for all women regardless of her marital
status.
The case of Jaideep Bhanushankar
Verma vs the Union of India. In this instance, the Gujarat High Court has said
that it is now crucial for a writ court to ascertain if Exception-2 to Section
375 of the Indian Penal Code may be considered obviously arbitrary and whether
it infringes upon a woman's basic right to sexual autonomy.
The writ petition argued that the
exception allowing a husband to have sexual intercourse with his wife without
her consent is based on the doctrine of Coverture, which states that upon
marriage, a woman loses her separate existence and is regarded as the property
of her husband. The petition further argued that this exception violates
Articles 14, 15, 19, and 21 of the constitution, as well as the right to live
with dignity, the right to personal liberty, the right to sexual autonomy and
bodily integrity, and the right to reproductive choices. The high court has
sent a notice to the attorney general of India and the government of Gujarat.
The criminalization of marital rape
has not only been influenced by previous cases, but also by the introduction of
a bill by Shashi Tharoor. This bill, titled the Women's Sexual, Reproductive
and Menstrual Rights Bill 2018, recommends the removal of exception 2 in
section 375 and adds a proviso to explanation 2. "The consent of a woman
to engage in sexual activity should not be assumed based on factors such as her
ethnicity, religion, caste, education, profession, clothing preference,
entertainment preference, social circle, personal opinion, past sexual conduct,
or any other related grounds”.
OBSTACLES WITH MARITAL RAPE:
Rape should be recognized as rape
irrespective of the relationship involved. The primary reason for not making
marital rape a criminal offense is the system of marriage. In India, marriage
is considered a custom, tradition, and sacrament. Former Chief Justice of
India, Depak Mishra, has expressed the view that marital rape should not be
considered a crime in India. He believes that criminalizing marital rape would
lead to complete chaos within families, and that the stability of our country
depends on the foundation of family values. However, this institution has
undergone significant change, resulting in several cultural transformations
such as the acceptance of live-in relationships, the recognition of the
unconstitutionality of Section 377, the legalization of same-sex marriage, and
the concept of judicial separation due to irretrievable breakdown. The Supreme
Court has granted permission to consider petitions on marital rape. If
criminalization of marital rape is enacted, there will be consequences.
Consent evidence issue: Section 122 of the Indian Evidence
Act grants a privilege to married individuals, exempting them from providing
evidence related to communications made during their marriage. Another issue
concerning evidence is the determination of consent from the wife. There is a
gap in understanding how the court will ascertain whether the consent was
consensual or non-consensual. In cases involving violence against women, the
court often relies on presumptions. For instance, in cases of dowry death, it
is presumed that if a woman dies unnaturally within seven years of marriage, it
is considered a dowry death. If the presumption of marital rape is established,
it is likely that many unfounded instances will be reported by wives.
Unfounded accusations made against
the in-laws and husband: There is often a high number of false cases filed by
wives against their husbands and in-laws. This is due to the presence of gender
biased laws and the absence of gender-neutral laws. The court has acknowledged
that there is a trend of filing multiple cases against husbands and in-laws in
both family and criminal courts, specifically under the Hindu Marriage Act and
the Protection of Women from Domestic Violence Act.
NEWLY INTRODUCED BNS, 2024 AND
MARITAL RAPE:
Marital rape is a highly debated
subject in India and worldwide. Although some nations have made substantial
progress in criminalizing marital rape, India is falling behind in tackling
this grave infringement of human rights. The outlawing of marital rape in India
has faced several impediments, such as the reverence for marriage as a holy
institution, concerns over unfounded allegations, and discussions around the
definition and proof of consent. Nevertheless, there is an increasing
recognition of personal independence, respect, and fairness that is slowly
supplanting conventional male-dominated systems. Although the progress may be
sluggish and sometimes faced with opposition, it is crucial to acknowledge
marital rape as a criminal act in order to provide justice for survivors and
dismantle detrimental patriarchal practices.
Conclusion
As cultures progress, the act of
making marital rape illegal shows a dedication to respecting and prioritizing
the autonomy, dignity, and well-being of every person. It emphasizes the
concept that consent is an essential entitlement of every individual that must
be respected in every situation, especially within the institution of marriage.
The punishment of marital rape goes beyond just a legal matter; it signifies a
shared declaration of the importance of human rights, equality, and the
endeavor for a fair and impartial society.
Regrettably, the recently implemented
Bharatiya Nyaya Sanhita, 2023 (BNS) does not effectively tackle the problem of
marital rape, thereby dashing any expectations for advancement in this area. It
is important to comprehend that criminal law serves the purpose of not only
imposing penalties but also establishing society standards by defining what
actions are considered morally incorrect. The failure to acknowledge marital
rape by the BNS has established an implicit standard that privileges men,
implying that marital rape is not morally objectionable. This will have in
significant negative consequences for society. Legislators cannot shirk their
duties by asserting that society is unprepared or by invoking apprehensions
about spurious cases. It is imperative to recognize and confront the injustice
of marital rape. It is crucial to acknowledge this infringement in order to
safeguard human rights and advance gender equality, eventually resulting in a
fairer society.
[1] Assistant Professor, IMS Law
College, Noida; email-santosh.sati@imsnoida.com
[2]
SIR MATTHEW HALE, HISTORIA PLACITORUM CORONAE: THE HISTORY OF THE PLEAS
OF THE CROWN (Professional Books Limited, P.R. Glazebrook ed., 1971)
[3] Anderson, Michelle J. (2016).
"Marital Rape Laws Globally". pp. 177–186
[4] NewIndianXpress (no date) Religion
and marital rape, a tricky territory, The New Indian Express.
Availablehttps://www.newindianexpress.com/cities/delhi/2022/feb/14/religionand-marital-rapea-tricky-territory-241
9141.html#:~:text=The%20seer%20says%20that%20Garuda,what%20happens%20within%20a%20family
[5] Islamic perspective on marital
rape - leading & Enlightening Journal Umy. Available at:
https://journal.umy.ac.id/index.php/jmh/article/download/271/234.
[6] Marital rape: A blatant attack on
Christian principles (2014) News | Jamaica Gleaner. Available at:
https://jamaica-gleaner.com/article/news/20141110/marital-rape-blatant-attack-christian-principles-0.
[7] KD GAUR (2020) ‘sexual offence in
marriage under english law’, in INDIAN PENAL CODE. 7th edn. gurgaon, haryana:
LexisNexis, p. 1107
[8] R v Clarke - [1949] 2 All ER 448
[9] Regina v Steele: CACD 1976
[10] R v R [1991] UKHL 12
[11] 419 Mass. 456 (Mass. 1995)
[12] State v. Rideout, 303 Or. App. 504
(Or. Ct. App. 2020)
[13] 383 Mass. 123
[14] 2022 SCC OnLine Del 1404
[15] (Civil) No 12612 of 2022
[16] Saba, (Apr. 18, 2018)