Open Access Research Article
MARITAL RAPE LAW IN INDIA
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Article Details
MARITAL RAPE LAW IN INDIA
AUTHORED
BY - AARATTRIKA CHANDA
The
law in India does not yet criminalize marital rape, i.e., the Indian Penal Code
of 1860 does not recognize that a husband can rape his wife. The reason given
includes protection of sanctity of the institution of marriage[1].
Through this paper, we explore the existing laws of marital rape in India and
how the laws prevent a woman from seeking remedy in case she is raped by her
husband.[2]
1. Introduction
Marital rape explained in Blacks
Law Dictionary 8th Edition is the process where the husband has
sexual intercourse with his wife without her consent. In the early days the law
and traditions dictated that the wife owed her body to her husband. In
Anglo-American tradition the wife was considered to be subservient to her
husband in the eyes of law and henceforth they surrounded their independent
life and legal status. This process was referred to as the coverture[3]
In a marriage the spouses are
entitled to their own rights. An individual is guaranteed with liberty and any
encroachment into such is a breach of privacy. That would further constitute to
be defined as cruelty.
Rape has been broadly categorised
into three forms, i.e., battering rape, force-only rape, obsessive rape.
Battering rape where there is
physical violence and then the husband proceeds the wife to hace sexual
intercourse with against her will. Majority of the marital rape falls under the
type of battering rape.
Force-only rape is also occurrent in
many households where the husband uses only that much of force that is
necessary to coerce the wife.
2. Historical Overview of Marital Laws in India
In the earliest legal texts like
Dharma shastra, the marital relations in the Hindu Society were underlined.
These texts said the importance of dharm or duty a man owed to his wife, his
family, his society.
Previously, marital rape in marriages
were considered to be legal. In the year 1994 marital rape was criminalised.
During the 1960s in England, the
Chief Justice stated that there can be no such thing as marital rape. Once a
wife marries a husband, she handovers her rights to her husband therefore the
wife doesn’t carry any right to refuse sex to her husband. This idea was
brought down in the 1800s when the Indian Penal Code and the Code of Criminal
Procedure were formed. There were no provisions for marital rape or bringing
justice to the same.[4]
The first notable change towards the
marital rape law started with the establishment of a committee by late J.S.
Verma. In this committee it was suggested to change the mindset towards marital
rape as it is believed to be an old mindset where the women were considered to
be the property of their husband.
A two-fold recommendation was made.
The topic of immunity available to the women in case where husband is the
perpetrator comes from the old notion that women are the possession of their
husband and the husbands have a legal right upon their women.[5]
In 2015, a debate was put up by the
Ministry of Home Affairs to criminalise the process of amrital rape. A bill on
this same topic was introduced in 2015 December but the matter was rejected by
the parliament stating that criminalising the process of marital rape will
result in excessive in the private sphere of a married couple.[6]
3. Statistical Findings
According to the National Family
Health Survey around 80 % of the married women of India claim that ttheir
current husband has raped them[7]
In the 2011 census, around
30,000 girl child were below the age of 15 and were forced to give birth to
children, further indicating the possibility of marital rape. Out of that
29,714 girl children were forced to give birth to a single child. [8]
In 2013, 181 Abhayam collected
data that states that out of all the survey has reported about domestic
violence. The authorities and the project head of 181 Abhayam staed that
majority of the women were unwilling to discuss the issue and they don’t think
the it is wrong when their husband insists on having sexual intercourse despite
of them not feeling like it. The project head of 181 Abhayam further saud that,
“When we tell them that they have equal rights to agree or disagree to a
sexual act, more often than not 'pati ki baat manni padti hain na' is the reply
we get,”[9]
In 2016, The National Crime
Records Bureau (NCRB) made a survey where the total number of victims to
child marriage ranged to 16,938. Among those 139 children where found to be
below the age of 6 years, these children had been kidnapped, or trafficked for
the sole purpose of marriage and was later forced to bear children.[10]
4. Legal Provisions
Section 375 of The Indian Penal Code
in 1860 provides us
with the definition of rape categorically leaving out marital rape from it.[11]
In 2012 a committee headed by Justice
JS Verma recommend to criminalise marital rape in India. In response to the
recommendation of the committee, the topic was debated in Lok Sabha where
Haribhai Chowdhury claimed that if marital rape is criminalised in India it
will complicate the family and marriage system in India.
Section 376 B of Indian Penal Code,
1960 states that a
husband can be punished for having unconsented sexual intercourse with his
separated wife. The minimum punishment is of two years and the maximum is for
seven years
Section 498A of Indian Penal Code underlines a punishment of maximum
three years of imprisonment of a husband or the relative of the husband if they
subject their wife to cruelty.
Protection of Women From Domestic
Violence Act, 2005
defined marital rape as a form of domestic abuse but doesn’t criminalise it.
Section 13 (1) of Hindu Marriage Act,
1955 states that any
form of cruelty on a wife by the husband including desertion, neglect can be a
ground for divorce
Section 198 (6) of Code of Criminal
Procedure, 1973
allocates provisions where minor victims who has suffered from marital rape can
file a complaint against her perpretrator till the age of 20 years of agreement
Exception 2 to Section 375 of Indian
Penal Code following
the case of Independent Thought v. Union of India & Anr. Interpretated the follow:
Sexual intercourse in a marriage
where the wife is a minor is not a rape despite of the fact that the minor wife
cannot give consent which can be legally recognised in India[12]
In the case of Raju Ahmed Laskar
v. The State of Assam and Ors. the court interpreted that marital rape is
only considered in case of non-consensual with a wife between the age of 12 and
15 years. Section 375 of Indian Penal Code doesn’t identify non consensual
intercourse of a man and and a wife as marital rape if the woman is above the
age of 18 years.[13]
Section 506 of Indian Penal Code,
1860 guarantees
punishment to perpetrators if they use criminal intimidation to force a woman
into illicit act including married women
Section 377 of Indian Penal Code,
1860 underlines
punishment of maximum of 10 years for anyone who performs illicit act with a
man, woman, child or animal against the natural course of nature
Section 493 of Indian Penal Code,
1860 states that
whenever a man deceit a woman into thinking that she is married to him and then
continues to perform illicit act with her is punishable under the Indian law
and the punishment can extend up to a period of ten years.
Section 354 of Indian Penal Code,
1860 is a provision
which helps the victims of marital rape to hold their perpetrators guilty. If
anyone is found to outrage the modesty of a woman in any non-consensual manner
then that person can be held guilty.
5. Doctrine of Coverture
This doctrine was introduced in
England in 1936 where the court stated that once a husband and wife enters into
marriage, the woman by herself has no independent legal identity and therefore
the issue of marital rape doesn’t arise as if the woman by herself doesn’t have
any right then the husband is not infringing or violating any right by having
sexual activities using force
The Indian Constitution doesn’t
recognise the doctrine of coverture but holds the fact that a woman looses her
legal identity and her individual rights following marriage.
6. Test of Manifest Arbitrariness
The manifest arbitrariness is a novel
phenomenon in the context of standard of assessment of legislation under the Article
14 of Indian Constitution. Justice Nariman in the case of Shayara Bano
v. Union of India, stated that when anything is done in an excessive
manner, then the law is simply arbitrary.[14]
It is argued that whenever a
non-consensual sexual intercourse is done by a man on a woman it is considered
to be a crime when the same act is done by the husband on his wife , then the
husband is granted immunity. This creates a false hierarchy between the two
sexual acts, which removes the primary motive of rape law to hold the perpetrator
to be accountable.
7. Marital rape provisions in Hindu law
Currently, The Hindu Marriage Act,
1956 doesn’t necessarily criminalise marital rape. The provisions related to
non – consensual sexual relations are discussed.
Section 9 of Hindu Marriage Act, 1956, states that in instances where a
spouse is not giving consent for a sexual activity then, the other spouse can
file a petition in the court to restore the conjugal rights and the privileges
that are accompanied with marriage. However, this section has been used for ill
purposes also like using legal options to force individuals into illicit act by
their spouse.
Section 13 of Hindu Marriage Act,
1956, gives the
spouses to live separately while being married in the eyes of law. The reason
behind the separation includes cruelty by the spouse.
Section 24 of Hindu Marriage Act,
1956 provides
cruelty as a ground for divorce. The Indian law specifically doesn’t recognise
marital rape however through this section the victims of marital rape can gain
separation from their husband on the ground of cruelty.
8. Fundamental right in private sphere
When the notion of criminalising
marital rape arises, it is often stated that the law of a country cannot
interfere into the private sphere of a married couple however there exists
restitution of conjugal rights as explained in Section 9 of Hindu Marriage
Act, 1956. Restitution of conjugal rights was first present in the
English law where a court can pass a decree encouraging a married couple to
live together. In this the court does interfere into the private life of a
married couple as opposed to the debate against criminalisation of marital rape
where it was argued in the parliament that by criminalising marital rape we
will be interfering into the private life of a couple[15].
In the case of T. Sareetha v. T
Venkata, Andhra Pradesh High Court struck down the constitutionality of
restitution of conjugal rights, the argument stating that the Section 9 of
Hindu Marriage Act violates Article 14, 19 and 21 of the Indian
Constitution. In this the court agreed to the fact that a woman can be
harmed of her rights and personal autonomy. The court in this case also agreed
that “no positive act of sex can be forced upon the unwilling persons,
because nothing can conceivably be more degrading to human dignity and
monstrous to human spirit than to subject a person by the long arm of the law
to a positive sex Act”[16]
9. Rape versus Cruelty
Section 376 of Indian Penal Code,
1860 defines rape as
a non – consensual sexual activity forced upon a woman, where she has not given
any form of consent. This section considers all form of penetrative and
non-penetrative act done upon a woman against her will as an offence. The major
element required to establish rape is absent of consent, coercing including
using means of intimidation. The minimum punishment for rape is minimum of 7
years of imprisonment.
Section 498A of Indian Penal Code,
1860 defines cruelty
as any form of abuse inflicted by the husband or his family after marriage.
Cruelty can be inflicted in the form of physical, emotional or mental abuse.
The punishment for cruelty is less severe than that of rape and there is 3
years of imprisonment. However cruelty can be a valid ground for divorce
according to Section 24 of Hindu Marriage Act, 1956
10. Changes in marital rape law
10.1 Late Justice J.S. Verma Committee
The first notable change towards the
marital rape law started with the establishment of a committee by late J.S.
Verma. In this committee it was suggested to change the mindset towards marital
rape as it is believed to be an old mindset where the women were considered to
be the property of their husband.[17]
10.2 Criminal Law Amendment Act,
2013
Then came the Criminal Law Amendment
Act, 2013, where broader definition was given to Section 375 of Indian Penal
Code where all forms of penetration was considered to establish rape
However, the Criminal law Amendment
Act of 2013 failed to actually criminalise marital rape. However it criminalised
sexual intercourse between a man and his separated wife[18]
10.3 Supreme Court’s Judgement
Next change came with the Supreme
Court’s judgement on the case of Independent Thought v. Union of India, in 2017
in relation to protect victims of child marriage from marital rape. In this any
sexual intercourse of a man with his wife who is below the age of 15 is
criminalised[19]
10.4 Parliament
The notion of marital rape was
introduced in 2015 in the parliament. The parliament refused to bring about any
sort of change as it believed that India is a country where the notion of
marriage is considered to be sacred and therefore the provisions of marital
rape cannot be introduced[20]
11. Arguments against criminalisation of marital rape
11.1 Adequate legal remedy for marital
rape
While it is considered there exists a
gap in the Indian Lae to address the matter of marital rape, the exception has
already been filled with the sections of Protection of Women from Domestic
Violence Act of 2005, Section 498A of Indian Penal Code, and Hindu Marriage
Act. Additionally, The Domestic Violence Act also recognises non-consensual
sexual abuse among the definition of domestic violence and provides remedies
like protection orders, legal separation, monetary compensation. It also recognises
cruelty done by the husband or any of his relatives against the wife and
Section 13 of Hindu Marriage Act allows divorce under the grounds of cruelty.[21]
11.2 Cultural Significance
In the case of Independent thought
the Supreme Court in its judgement stated that marriage is a personal process
and the concept of criminalising marital rape goes against the institution of
marriage[22]. In the
case of Nimeshbhai Bharatbhai Desai v. State of Gujrat, the Gujrat High
Court stated that marriage stands on the pillars of trust and confidence. The
very act of marital rape in itself violates those pillars. The court
furthermore added that the majority of the women are till now financially
dependent on their husband therefore they will not be able to survive outside
of the framework of marriage
11.3 Consent
Sir Matthew Hale of England in 1736
stated that whenever a man and a women enters into the binds of marriage there
is a mutual matrimonial contract signed between the man and the wife which
later on the wife cannot retract.[23]
Even though this immunity was
retracted in the commonwealth states of England and Wales in 1991 the argument
of marriage and consent was prevalent when the marriage laws were formed and is
used to justify marital rape as seen by the Law Commission of India’s 172nd
Report on Review of Rape Laws of 2000.[24]
12. Arguments for criminalisation of marital rape in India
12.1 Protection of Rights
Criminalising marital rape in India
protects the rights of an individual which are guaranteed under the Protection
of Human Rights Act, and the process of forced intercourse does violate the
rights of an individual. The Domestic Violence Act, 2005 guarantees certain
rights to women like protecting them form harm and injury. Allowing marital
rape in India violates those rights which are guaranteed under the Domestic
Violence Act.[25]
12.2 Encroaching of Constitutional
Rights
Article 21 of the Indian Constitution
guarantees the citizens of India a right to live their life with dignity and is
an umbrella for personal rights and liberty. The Supreme Court acknowledges
that any form of violence which is led from non-consensual intercourse is a
form of interference to the right of privacy[26]
In the case of State of
Maharashtra v. Madhkar Narayan, the Supreme Court in its judgement stated
that women are entitled to sexual privacy. Thus, criminalising marital rape
safeguards a woman’s right to privacy and a good quality of life.[27]
13. Judicial Approaches
In 2012 Pam Rajput Committee
was set up by the then government to analyse the status of married women in
India. The committee in its report recommend to illegalise marital rape. In
2015 Women and Child Development Ministry further reevaluated the report of
this committee and agreed about the need to establish clear laws to illegalise
non – consensual sexual conduct between a man and his wife
In 2018 Gujrat High Court gave its
judgement against the process of criminalosing marital rape stating that a man
cannot be simply arrested due to forcing his wife to have sexual activities However,
later on Gujrat High Court under the ruling of Justice J.B. Pardiwala stated
that the law is biased towards married and unmarried women. He further went on
to elaborate the fact that whenever an unmarried woman is forced to have
non-consensual sexual activity with then the perpetrator is charged with rape
and the provisions in Indian Penal Code underlines clear punishment and
remedies. However, if an unmarried woman is forced to perform illicit act with
her husband against her consent then there is no such provisions in place. The
court later went on to state that the law should not bias between women.
The Kerala High Court in 2021 issued
that any form of marital rape between the partners can be a cause and reason
for divorce. Justice Muhammed Mustaque added that post marriage a woman doesn’t
handover her rights on her body, rights to privacy to her husband and therefore
the husband has no right to have any rights in that marital relationship.
Karnataka High Court in March 2022,
held a man liable under the section 375 of Indian Penal Code for forcing her to
have sexual activities with him. However when this appeal was made to the
Supreme Court a stay was issued on this order.
In September 2022 the Supreme Court
consisting of a division bench headed by the CJI Justice D.Y. Chandrachud
stated that the only instance of marital rape can happen when a married woman
is forced to be pregnant and bear child of her perpetrator against her will.
14. Landmark Cases
Queen Empress v. Haree Mohan Maiti
This is first case in India where the
topic of marital rape was brought up. An eleven year old child bride died due to excessive bleeding when her
husband in his mid-thirties tried to cinsumate the marriage. There was an
instance of ruptured vagina. The age of consent at that time was of 10 years
and sex with a wife was not rape. The husband got away with 12 months of hard
lanour. Following this incident a bill was passed increasing the age of consent
from 10 years to 12 years but the criminalisation of marriage did not take
place[28]
Sakshi v. Union of India (2004)
In this case, an NGO raised a
questioned that whenever a husband performs cruelty on his wife the Indian Law
considers it as a punishable offence but whereas whenever the husband performs
sexual intercourse with his wife without her consent, the act should also be
admitted as a punishable offence. Supreme Court upheld the existing definition
of marital rape under Section 375 of Indian Penal Code where there is no
provision for marital rape and refused to alter it.[29]
Independent Thought v. Union of India
& Anr. (2017)
In this case a minor victim had
suffered from marital rape. A NGO named by Independent Thought filled a writ
petition challenging Section 375 (Exception 2) of Indian Penal Code. Section 3
(3) of Prohibition of Child Marriage Act, 2006 states that a child marriage can
be annulled if the child has suffered from marital rape and the marriage can
even be declared as void. Previously the age was restricted till 15 years but
following the judgement of this case the age got increased to 18 years.
However, the shortfall of this judgement was it had no provision where victims
of marital rape can seek remedy. This judgement was only restricted towards a
certain age group and was not generalised.[30]
Nimeshnhai Bharatbhai Desai v. State
of Gujrat
The issue addressed in this question
is if a husband forces his wife to perform oral sex whether it would come under
the ambits of rape as underlined in Section 377 of Indian Penal Code. Secondly,
whether forcing the wife will be referred to as cruelty by the husband upon the
wife under Section 498A of Indian Penal Code.
The Gujrat High Court stated that any
husband cannot have infinite right against his wife and therefore any form of
crime against the women will not be criminalised and therefore took a chance to
criminalise marital rape and in that process acknowledging the right of married
women.[31]
Raju Ahmed Laskar v. The State of
Assam & Ors.
The appellant in this case was a
woman married under the Muslim law. There was separation between the man and
the wife, and evidence of sexual intercourse was there. The first question
arose whether at the time of sexual intercourse during was consensual or not. Indian
law states that any type of sexual intercourse at the time of separation falls
under the ambits of rape.[32]
Samar Ghosh v. Jaya Ghosh
The supreme court recognised that
there are some fundamental rights that are guaranteed to every citizen under
the Indian Constitution. Any force of forceful illicit act is a form of mental
and physical act without consent is a breach against the rights guaranteed.
Supreme Court further added that any from of marital rape even though is not
criminalised falls under the umbrella of cruelty and thus marital rape can be a
ground for divorce under Section 13 of Hindu Marriage Act[33].
Harvinder Kaur v. Harmander Singh
In a case of marital rape the Delhi
High Court refused to interfere into the matters. The court held that the case
involved household [34]matter
and the constitution had not remedy for it and any interference can possibly
destroy the essence of marriage.[35]
State Through Reference v. Ram Singh
& Ors.
This case eventually led to enactment
of Criminal Law (Amendment) Act,2013. The Amendment Act established several
eminent changes in the rape law of India. Previous to this rape only was
comprising of penetration into a women’s private part but later on it stated
that the inability of the woman to give consent is also a ground for rape.[36]
15. Conclusion
Marital rape law is not yet an
established law in India. Evaluating through the evolution of marital law, and
understanding the changing notion of marital rape to a discourse shaped by
individual right and societal expectations and their boundaries.
Despite of significant improvement in
the legal provision, and the statistical finding is a sobering reality. Reports
from the National Family Health Survey and the National Crime Records Bureau
underscore the nature of marital rape, demanding urgent legal at the current
prevalent gap.
Section 375 of Indian Penal Code,
1860 defines rape but excludes marital rape. The criminalisation of marital
rape gained a momentum in 2012 with the report of Justice JS Verma Committee. However,
when this debate was taken to the Lok Sabha it gave rise to potential issues in
the family structure.
Section 376B of Indian Penal Code,
1860 regards non-consensual intercourse with separated wife as an offense.
Section 498A emphasizes the punishment for inflicting of cruelty on a wife. The
Protection of Women from Domestic Violence Act, 2005 labels marital rape as
domestic abuse. Section 13(1) of Hindu Marriage Act, 1955 identifies cruelty as
a ground for divorce.
There is a great emphasising upon the
protection if the rights of an individual under the Constitution. The
encroachment on constitutional rights, particularly Article 21 guarantees the
citizens their right to live with liberty and dignity.
In conclusion, the topic of
criminalising marital rape expands more than legal provisions and delves into
the safeguarding the rights and values.
[1] http://docs.manupatra.in/NEWSLINE/ARTICLES/UPLOAD/8787A55C-D93F-4589-8A68-A9A032AFAF0E.PDF
[2] Krina Patel, The Gap in Marital Rape Law in
India: Advocating for Criminalization and Social Change, 42 Fordham Int'l L.J.
1519 (2019).
[3] Sir Matthew Hale (1609 – 1676) in
History of the Pleas of the Crown
[4] Krina Patel, The Gap in Marital Rape Law in
India: Advocating for Criminalization and Social Change, 42 Fordham Int'l L.J.
1519 (2019)
[5] Justice J.S. Verma Committee,
Report of Committee on Amendments to Criminal Law (January 23,2013)
[6] RAJYA SABHA DEBATES, Discussion on
the Indian Penal Code (Amendment) Bill, 2015, 53, Session Number 237, December
4, 2015
[7] https://www.thehindubusinessline.com/data-stories/data-focus/marital-rape-most-married-women-are-sexually-abused-by-their-husbands-says-nfhs-data/article65409875.ece
[8] 2011 Census of India. Registrar
General and Census Commissioner of India/*
[9] The Times of India, “25% of
helpline calls about marital rape”
[10] National Crime Records Bureau,
2016 report on Marriages in India
[11] Agnidipto Tarafder and Adrija
Ghosh, ‘The Unconstitutionality of the Marital Rape Exemption in India’ (2020)
3(2) University of Oxford Human Rights Hub Journal 202, 204 accessed 19 May
2021
[12] Independent Thought v. Union of
India 10 SCC 800, AIR 2017 SC 4904
[13] Raju Ahmed Laskar v. The State
of Assam and Ors. LQ/GauHC/2023/187
[14] Shayara Bano vs Union of India
9 SCC 1 (n 82) [101] (Nairman J)
[15] In 1969, Justice Scarman
recommended the abolition of this remedy
[16] T. Sareetha v. Venkata Subbaiah,
AIR 1983 AP 356
[17] Justice J.S. Verma Committee, Report
of Committee on Amendments to Criminal Law (January 23,2013)
[18] Criminal Law (Amendement) Act, No.
13 of 2013, PEN CODE 375, Exception 2; The Criminal Lw (Amendement) Act, No. 13
of 2013, PEN. CODE 376A
[19] PEN. CODE (1860), 375, Exception 2
[20] LOK SABHA DEBATES, Question on
Marital Rape, 2016, Question No. 2872, March 15, 2016
[21] Kanodia & Ray, supra note
47 at 53
[22] Independent Thought v. Union of
India 10 SCC 800, AIR 2017 SC 4904
[23] Independent Thought, 382
SCC at 45
[24] Law Commission of India, 172nd
Report on Review of Rape Laws (2000); Nigam, supra note 22, at 13
[25] Janani. G.S, Dr. S Pandiraj
“MARITAL RAPE IN INDIA – NEED FOR CRIMINALIZATION” 120 International Journal of
Pure and Applied Mathematics, (2018)
[26] Independent Thought, 382 SCC
at 22; Karnataka v. Krishnappa (2000) SCC (India)
[27] Madhukar Narayan Mardikar,
AIR 1991 SC 207
[28] Queen Empress v. Haree Moahn
Maiti, (1886) ILR 8 All 622
[29]
Sakshi v. Union Of India Writ Petition (Criminal) No. 33 Of 1997
[30] Independent Thought v. Union of
India 10 SCC 800, AIR 2017 SC 4904
[31] Nimeshnhai Bharatbhai Desai v. State of
Gujrat 2018
SCC Online Guj 732, [104] 62
[32] Raju Ahmed Laskar v. The State
of Assam and Ors. LQ/GauHC/2023/187
[33] Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
[34] Krina Patel, The Gap in Marital Rape Law in
India: Advocating for Criminalization and Social Change, 42 Fordham Int'l L.J.
1519 (2019)
[35] Harvinder Kaur v. Harmander
Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546
[36] ‘The Criminal Law (Amendment) Act
2013’, No. 13 of 2013 (Amendment Act 2013)(2013)
State
Through Reference vs Ram Signh & Ors. (2014) App. No. 6/2013
Article Information
MARITAL RAPE LAW IN INDIA
Authors: AARATTRIKA CHANDA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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