A recent order of the Chhattisgarh High Court, clearing a man from charges of marital rape has reignited the debate about marital rape and the lack of laws to act as a viable deterrent. The court's observed on August 23 that sexual intercourse or sexual act by a man with his own adult wife is not rape even if the same is by force or against her wish.
Successive governments have steered clear of bringing in legislation to criminalise marital rape, arguing for the need to protect the "institution of marriage" and that it would result in malicious prosecution against husbands. However, critics have pointed out that the government's disinclination to outlaw marital rape stems from a patriarchal mindset.
"The high court's observations though frustrating are not wrong or misplaced," advocate Sriram Parakkat told BOOM. "Fact of the matter is that marital rape is not a crime in India, so even if the judiciary wanted to, it couldn't penalise the accused," he added.
Criminalising marital rape would open a pandora's box of malicious prosecution, advocate Tanveer Ahmed Mir argues.
However Leah Verghese, a research manager at Daksh (a civil organisation involved with research and promotion accountability in governance), says the deeper reason is the patriarchal notion that a wife is subordinate to her husband and that marriage implies irrevocable consent to sexual intercourse.
BOOM examines the issues surrounding the issue of marital rape.
Also Read: Rape Laws in India: All You Need To Know
What is Marital Rape?
Sexual intercourse or an act of sex with one's partner or spouse without their consent is marital rape. It is a form of domestic abuse, but not recognised as a crime in India under the provisions of the Indian Penal Code (IPC), 1860.
Historically, rape was seen as an act of crime, or theft or damage of a man's property (usually a husband/father), Oxford University Law Professor Jonathan Herring explains in his book Family Law: A Very Short Introduction.
Herring explains that the property here would mean the man's daughter or wife. Thus, the damage done was not against the victim (the woman), rather it was a crime against the man. Therefore, by this logic, a husband could not rape his wife.
Also Read: Bombay HC: Tejpal Verdict Like A Manual On How Rape Victim Must Behave
What are the Indian laws on Marital Rape?
Marital rape falls under the exception to rape laws which state sexual intercourse with one's wife who is over the age of 15 is not rape.
"The police usually charge the accused under section 377 (unnatural sex), or victims and survivors can rely on section 354 (sexual assault) of the IPC," Parakkat said. "Alternatively, victims can also assert cruelty or sexual abuse/assault under the Protection of Women from Domestic Violence Act, 2005," he added.
"The origins of the exception to marital rape being treated as rape lie in the conservative Victorian values on which the Indian Penal Code was based. India is in the dubious company of 32 countries like Iran, Afghanistan, and South Sudan who have not criminalised marital rape," Verghese said.
Though the Chhattisgarh HC cleared the 37-year-old of charges of marital rape, Justice NK Chandravanshi retained charges against him under section 377 of the Indian Penal Code, 1860 for "unnatural sex".
"Charging the accused under 377 (of the IPC) is correct. The court could have also charged him under section 354 for sexual assault. However, both these charges are inadequate because a rape charge and a conviction thereafter carry particular protections which include support for survivors as well as limits for the convicts that other sections do not have," advocate Karuna Nundy said.
Also Read: Marital Rape Is Cruelty, Good Ground For Divorce: Kerala HC
What do the courts say on marital rape?
In 2017, the Supreme Court had referred to the Justice J.S. Verma Committee report to recommend making marital rape a crime. The committee had said that the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity.
However, not much has come off it.
Indian courts continue to take conflicting and diametrically opposite views on this issue. The dichotomy is puzzling as legislative exemption to marital rape survives despite a plethora of judgments from several constitutional courts asserting a woman's bodily rights.
The Supreme Court recognised the right to bodily integrity in the context of privacy in its 1990 Madhukar Narayan Mardikar verdict.
In the Suchita Srivastava verdict, the top court had said a woman had the "right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods".
The top court has repeatedly held that "rape is not only a crime against the person of a woman, it is a crime against the entire society".
And yet, the Supreme Court in its 2017 Independent Thought verdict had refused to examine the exception to Section 375 of the IPC (rape laws) which allows a man to have forced sex with his wife if she is over 15 years of age. The top court's verdict had said that legislative immunity given to marital rape stemmed from the "outdated notion that a wife is no more than a subservient chattel of her husband" but checked themselves at simply declaring that "sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not".
The Gujarat High Court in its 2018 Nimeshbhai Bharatbhai Desai verdict had underlined the need to make marital rape an offence. "A law that does not give married and unmarried women equal protection creates conditions that lead to marital rape. It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote marital rape," Justice JB Pardiwala had observed.
Recently, the Kerala High Court observed that marital rape, though not a crime was good grounds for divorce.
Earlier this year, while staying the arrest of a man accused of raping his live-in partner, then Chief Justice of India SA Bobde had observed, "However brutal the husband is...when two people (are) living as husband and wife... can sexual intercourse between them be called rape?"
Meanwhile, the Punjab and Haryana High Court on August 26 decided to test the validity of a wife filing an FIR accusing her husband of rape. The high court's decision came on a husband's plea seeking to quash the FIR filed against him by his wife.
The IPC, which is the bulwark of criminal jurisprudence, is a hangover from colonial laws. However, even the British in its landmark 1991 verdict in R v R, ruled that a husband cannot rape his wife.
"There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour," the House of Lords had observed.
"We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim," it had added.
Pandora's box or Patriarchal mindset?
Successive governments have cautioned the courts against transgressing into the domain of the legislature. The Supreme Court too has asserted its hands are tied, relying on its function to simply expound laws.
"The courts are not allowed to legislate in a surrogate manner," advocate Tanveer Ahmed Mir told BOOM. "Their (judiciary) job is to interpret the laws and the law does not recognise marital rape," he added. "Even the top court in the 2014 Arnesh Kumar judgment had to its previous judgment on dowry laws," he added.
Misuse of dowry laws is often quoted by many to support non-interference on the marital rape issue. Mir believes that outlawing marital rape would be akin to letting out a bull in a china shop.
Critics however feel the actual reason is the entrenchment of patriarchal mindset in almost all aspects of society. "It is 2021 and we are still having this conversation," said Neha Singhal, team lead, Criminal Justice at the Vidhi Centre for Legal Policy.
"We have been having this conversation (on women's rights) for many decades and clearly the Legislature is unwilling to change the law. In fact, the institution of marriage is so dependent on a man's ownership over a woman's body that people seem to think that criminalising non-consensual sex between a husband and his wife will destabilise the very institution of marriage," Singhal added.
"False prosecutions are a specious reason for retaining this provision. This provision has no place in the law books of modern democracy in the twenty-first century," Verghese said.
"Just because the law may be abused cannot be a grounds for not having a law to protect women at all. The relationship between a perpetrator and a victim should not have a bearing on the crime. Non-consensual or forcible sexual intercourse does not stop being a rape just because the man and woman happen to be married," advocate Fauzia Shakil said speaking to BOOM.