Open Access Research Article
A CONTRASTING LEGAL POSITION OF INDIA & ITS NEIGHBOURS ON MARITAL RAPE BY: DAKSHITA SHARMA KATARE
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AUTHORED BY: DAKSHITA SHARMA KATARE
Abstract
Rape is one of the most heinous
crimes that has been recognized around the world and has been made punishable
in almost every nation, though the degree of punishment may vary from state to
state basis. While rape in itself is a horrendous crime, marital rape is even
worse as it breaches the trust one has on his or her partner and creates a
question mark on the sanctity of the institution of marriage itself. Sadly
enough, even though rape is a recognised crime throughout the globe, every
nation has their own perspective and their distinct laws on marital rape. Some
countries recognize it as a crime, while others regard it as an exception to
the status of crime. A few country also hold an unclear stance on the legal
position of marital rape. India is one of the nation which does not recognise
marital rape is a crime. Since, India is a one of the prominent countries in
South Asia and lies in the Indian sub-continent, wherein it shares similar
culture and history with its neighbouring countries, it is notable to look at
the stance of India’s neighbours on this issue. Recent developments within the
country have been looking forward to making interpretations in this regard, to
decide whether India should decriminalize marital rape or not. In such a
situation taking a look at the position of this socio-legal issue in the
neighbouring countries, shall help in taking an informed decision and
incorporating the positive aspects of the fellow nations. In order to achieve
the above purpose, this short note has been written by reviewing the available
literature on this topic.
Keywords: Marital Rape, India, Bharatiya Nyaya Sanhita,
Nepal, Bhutan, etc.
Marital rape is understood
as rape within a marital relationship, that is, the act of sexual intercourse
with one’s spouse without his or her consent. It is a form of domestic violence
and sexual abuse within the boundaries of marriage.
From the point of view of law, it has
different in status in different countries. Out of the 198 nations, 142
countries have criminalised marital rape, 49 of them have explicitly excluded
it from the ambit of a crime, while the rest 7 have unclear laws and ambiguity
regarding the same. Unfortunately, India is amongst those 25% nations who have
not criminalised marital rape. On the contrary, two of its immediate
neighbours, Nepal and Bhutan fall under the category of other 72% nations which
have explicitly criminalised marital rape. Just like India, its other
neighbours (except the above two), that is, Afghanistan, Bangladesh, China,
Maldives, Myanmar and Sri Lanka, have also not criminalised marital rape,
whereas Pakistan has taken no clear stand on this grave issue.[1]
The major issue in criminalising
marital rape is the difficulty in proving the incidence of the said act and the
risk of abuse of such law.
Let us take a quick glance at the
legal position of Marital Rape in India, Pakistan, China, Nepal and Bhutan.
Tussles and Conflicts within the System: India
The substantive law of crimes in the
modern India has been governed under several legislations, wherein the major
piece of legislation had been the Indian Penal Code, 1860 (also called the
‘IPC’ in short), along with several newer criminal legislations dealing with
crimes of specific nature such as the Official Secrets Act, Prevention of Corruption
Act, Arms Act, Drugs (Control) Act, etc. The IPC now stands repealed and has
been replaced by a newer legislation – the Bharatiya Nyaya Sanhita, 2023 (also
referred to as the ‘BNS’) this year. This new law now majorly governs the
Indian substantive criminal law and defines major crimes along with prescribing
their punishment.
Earlier the IPC, and now the BNS, are
the primary substantive criminal law which deal with almost all the offences
like theft, robbery, rape and murder. Section 375 of the IPC and Section 63 of
the BNS define the term rape, and Section 376 of the IPC and Section 64 of the
BNS provide for its punishment, thus criminalizing rape in India.
Now, it must be noted that Exception
2 to Section 375 of IPC read with Section 376B clearly provide that marital
rape is legal in India, except when the wife is below the age of 15 years or
when the husband and wife are separated from each other. The only change we see
upon going through the provisions under Section 63 Exception 2 read with Section
67 of the BNS is that the statutory limit of 15 years has been increased to 18
years, yet marital rape has still not be criminalized under the Indian law.
It is noteworthy here that the Indian
legal system has undergone a lot of changes in the past one decade, especially
with respect to crimes against women including rape due to the uproar in the
nation after the Nirbhaya Gang Rape Case
(2012) and the Shakti Mills Gang Rape
Case (2015). Now, in present, especially in the post covid-19 lockdown
period, marital rape has emerged as a grave concern and attempts are being made
to criminalize it.
It must be noted that research
undertaken by various academicians and research scholars in the country have
shown the following findings:
·
846 of 3447 women, that is, almost 25% women have disclosed
that they have been victims of marital rape.[2]
·
Spousal violence including marital rape is associated with
depression and Post Traumatic Stress Disorder.[3]
·
That during Covid-19 pandemic the stringent lockdowns had
concurrently increased complaints of domestic violence and cybercrime.[4]
|
(Table 1 & Table 2 Source: Deosthali, P. B.,
Rege, S., & Arora, S., “Women's experiences of marital rape and sexual
violence within marriage in India: evidence from service records” 29(2) Sexual and reproductive health matters 2048455
(2021).)
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In 2013, the Justice JS Verma
Committee had recommended the criminalization of marital rape in India by
deleting the Exception from the provision of rape in law. Later, several
petitions were filed in the Delhi High Court in the year 2015 for the first
time demanding criminalisation of marital rape. But, the Central Government
viewed it as opposed to the ‘sacrament’ of marriage.
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(Image Source: Marital
Rape in India, available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-in-india-1(last visited on December 22, 2024).)
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In 2017, a complaint was filed
against Hrishikesh Sahoo by his wife on the charges of rape and cruelty which
was being heard by the Sessions Court. During the pendency of the case, Sahoo
preferred a writ petition to the Karnataka High Court pleading to drop the
charges against him on the grounds of exception to the provision of rape which
allows marital rape. But Justice M. Nagaprasanna rejected the petition taking
into consideration the 2013 report recommendations. He then went ahead to file
a Special Leave Petition before the Supreme Court of India challenging this
ruling, whereby, the 3-Judge Division Bench comprising of CJI N.V. Ramana,
Justice Hima Kohli and Justice Krishna Murari passed the order of interim stay
on the High Court’s decision, which was opposed by the Karnataka state
government.[5]
Meanwhile, in 2022, four cases namely
as, RIT Foundation v. The Union of India,
Khusboo Saifi v. The Union of India &
Anr., All India Democratic Women’s
Association v. The Union of India, and Farhan
v. State & Anr., were heard together by a Divisional Bench of the Delhi
High Court constituted by Justice Rajiv Shakdher and Justice C. Hari Shankar
with the major issue of criminalising marital rape. While the former ruled out
in favour of criminalising marital rape, the latter held that marriage in
itself is an “implied” consent.
This split verdict created anomaly
and thus the matter went to the Supreme Court, where it is still pending. Also,
Dalit activist Ms. Ruth Manorama also filed a fresh petition before the Apex
Court challenging the marital rape exception under the law. All these petitions
were clubbed in early 2023, to be heard by the CJI D.Y. Chandrachud and Justice
P.S. Narsimha, but had remained unheard until January 2024. It was only in
October 2024, when the Union Government filed a 49-paged lengthy affidavit
which opposed the idea of removing or repealing the marital law exception
provision and claimed that the Protection from Domestic Violence Act exists to
cater to the issue of marital rape by providing penal provisions in it and that
the BNS does not require said changes. This has led to a huge setback in the
desire for criminalization of marital rape.
Here, it must be noted that
previously, in a major development in September 2022, a Supreme Court bench
headed by the present Chief Justice DY Chandrachud while ruling on women’s
right to safe abortions regardless of marital status held that for the purposes
of the Medical Termination of Pregnancy Act, the definition of rape should
include marital rape.
Awaiting a Clarification: Pakistan
Earlier, the definition of rape under
the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 explicitly excluded
marital relationship. But with it repealment and consequent enactment of the
Protection of Women (Criminal Laws Amendment) Act, 2006, rape has been newly
defined.[6] The new definition has no reference to marriage altogether.
Thus, it has been argued that marital rape has been included within the ambit
of the offence of rape.[7] However, as of February 2015, there were no reports of a
case being brought before a superior court to clarify the law.[8]
Thus, Pakistani legal system is still
awaiting a clarification as to the interpretation of the term „rape? and
whether it in application includes marital rape or not.
An Issue Left Untouched: China
In the year 2015, Domestic Violence
Law was introduced in China and it in itself is landmark legislation as for the
very first time in the Chinese legal system, it attempts to define the term
‘domestic violence’.
But, the Anti-domestic Violence Law
of the People's Republic of China in no manner whatsoever deals with the
gruesome issue of sexual violence. It only deals with physical and
psychological aspect of domestic violence and not with the sexual aspect. Thus,
the Chinese legal system is absolutely silent towards marital rape.
Further, a study conducted by the
U.S. State Department reveals that the Chinese law does not safeguard same-sex
couples or victims of marital rape.[9]
Thus, the entire issue of marital
rape has been left completely untouched by the Chinese government and no major
developments with regard to this are visible in the country.
The Petty Equality in the Land of Happiness: Bhutan
The Penal Code of Bhutan, 2004
criminalises marital rape under its Section 199 and 200.
These Sections read as
follows:
Marital rape, Section 199.
A defendant
shall be guilty of marital rape, if the defendant engages in sexual intercourse
with one's own spouse without consent or against the will of the other
spouse.
Grading of Marital rape,
Section 200.
The offence
of marital rape shall be a petty misdemeanour.
Now it must be clearly noted here that
under Section 199 marital rape has been criminalised in Bhutan. But under
Section 200, the offence of marital rape has been graded as an offence of petty
misdemeanour. Now under Section 3 of the same Code an offence of petty
misdemeanour as a class of crime has been defined as the one which provides for
a maximum term of imprisonment of less than one year and a minimum term of one
month for the convicted defendant.
Thus, the incidence of marital rape
though criminalised in the Land of Happiness Bhutan, it has been treated as a
minor violation of the rights of the spouse. In fact, even rape in Bhutan under
Section 177 & 178 is regarded as a mere felony of the fourth degree, that
is, punishable with a sentence of imprisonment which is for a minimum three years
and a maximum of less than five years.
So, though the law of Bhutan protects
both a husband and a wife from marital rape by the use of gender-neutral term
„spouse? and gives equal treatment also in the definition of rape to both men
and women, it fails to create equality between the rape and marital rape. In
addition to this, its treatment of both the offences as non-heinous ones needs
a recheck and the punishment for these offences should be increased.
Ushering Improvements in the Legal System: Nepal
Out of all the countries neighbouring
India, the one which has seen maximum development with respect to marital law
is Nepal.
Marital rape was criminalised under
the previous existing Criminal Code of Nepal of the year 2006, which now stands
repealed.[10] Thus, marital rape has been criminalised in Nepal since
long. In the year 2017, the new Criminal Code Bill was introduced. Under
Section 219 (4) of Chapter 18 of this Muluki Criminal Code, 2074, "If a man rapes his wife when he is
still in marital relationship with her, he shall be sentenced to up to five
years in jail."[11]
Marital rape was criminalised in Nepal for the first time in
2001 by the precedent Meera Dhungana
v. HMG, NKP 2058. In this
case, the Supreme Court of Nepal had declared “marital rape as punishable crime and issued a directive order to
Justice and Parliament to formulate just legal provisions for marital rape.”
In Nepal, marital rape has three
exceptions. They have been depicted in the figure below:
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(Image Source: Marital Rape in Nepal, available at: https://lawinpartners.com/publication/marital-rape-in-nepal/(last visited on December 22, 2024).)
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As far as the procedural requirements for convicting a person
on the grounds of marital rape are concerned, the statute imposes a limitation
period for filing a complaint of the said offence. The complaint of marital
rape has to be filed within a year of commission of crime by either spouse. The
victim gets only a year’s time to get an FIR registered for commission of
marital rape and bring his/her accusation to police and prosecution.
Post the registration of complaint,
the investigation process and the trial procedure is followed more or less in
the same way as in any cognizable criminal case in India. The major difficulty
during this process is the collection of evidences against the accused. Because
of the nature of the offence, arguing a case of marital rape in the Court
becomes very challenging.
The figure below gives a quick glance
of the procedure to be followed in case of marital rape:
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(Image Source: Marital Rape in Nepal, available at: https://lawinpartners.com/publication/marital-rape-in-nepal/(last visited on December 22, 2024).)
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During the course of pendency of the
case, the court is empowered to give temporary reliefs by the way of
interlocutory orders, that is, giving interim orders. A few types of interim
orders which the court can give to the husband are:
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(Image Source: Marital Rape in Nepal, available at: https://lawinpartners.com/publication/marital-rape-in-nepal/(last visited on December 22, 2024).)
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In order to prove ones case, the prosecution has to, like any
other crime, prove marital rape beyond reasonable doubt. Further, lack of
consent must be proved, which is in fact very difficult to prove in these cases
due to the nature of relationship between the victim and the accused.
Nevertheless, the testimony of the victim plays a pivotal role as important
evidence in the cases of marital rape in Nepal.
As far as the protection of the
accused is concerned, marital rape poses a great threat on their rights. This
is because, one might misuse this legal protection to retaliate against their
spouse, take vengeance or revenge, harm the reputation of the other party, hide
their own mistakes and acts of adultery, etc. This is also one of the reasons
why India is yet to criminalise marital rape.
Apart from this, it must be noted
that just like Bhutan, the rape laws in Nepal are also gender neutral, unlike
the gender biased rape laws of India, where rape is recognized only against a
female and not against a man.
A Way Forward
A careful analysis of the existing
laws of these five countries shows how laws greatly differ even in geographical
close regions. All the five legal positions bring us to a simple conclusion
that it is a very tough task to criminalise marital rape and assign a proper
punishment to it. Family is a space where one lives the most comfortably, but
heinous patriarchal practices like that of marital rape deter this peaceful
dwelling. It is the duty of the state to protect the lives of each and every
individual not only on the streets, but also within the four walls of the
homes. Also, various steps taken by the respective governments for
criminalising marital rape and gender-neutral treatment of rape are few of the
indicators of advanced democracy as they define the position of women in the
society as well as the available social and legal protections to both men and
women. Criminalising marital rape and gender neutral treatment of rape is an
essential for any legal system. Thus, India must learn from its neighbours to
accept these changes and reform its legal system. Finally, apart from the
drafting of laws, proper implementation of such a noble law must also be
facilitated so that justice in true sense can be attained by the people and
human rights of the Indians as well as that of the nationals of other countries
are also kept secure!
[1] Claire Provost, “UN Women justice report:
get the data” The Guardian, Jul. 6,
2011.
[2] Deosthali,
P. B., Rege, S., & Arora, S., “Women's experiences of marital rape and
sexual violence within marriage in India: evidence from service records” 29(2) Sexual and reproductive health matters 2048455
(2021).
[3] Agarwal,
N., Abdalla, S. M., & Cohen, G. H., “Marital rape and its impact on the
mental health of women in India: A systematic review” 2(6) PLOS global public health e0000601 (2022).
[4] Bagchi, S.S., Paul, S., “Violence during lockdowns in India” 7 Nat
Hum Behav 306–307 (2023).
[5] Challenge to the
Marital Rape Exception, available at: https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/ (last visited on
December 22, 2024).
[6] The Pakistan: Penal Code, 1860.
[7] Rao, Hamza, “Marital rape: Is it
criminalised in Pakistan?” Daily Pakistan
Global, Aug. 31, 2017.
[8] Khan, Myra “Rape Laws in Pakistan” The
Legal Brief, Feb. 21, 2015.
[9] U.S. Department of State Bureau Of
Democracy, Human Rights, And Labor, “2017 Country Reports on Human Rights
Practices” (April, 2018).
[10] UN Secretary-General, In-depth study on all forms of violence against women, UN Doc A/61/122/Add.1 (Jul. 6, 2006).
Article Information
A CONTRASTING LEGAL POSITION OF INDIA & ITS NEIGHBOURS ON MARITAL RAPE BY: DAKSHITA SHARMA KATARE
Authors: DAKSHITA SHARMA KATARE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/12/25
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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