“Till Death do us Apart”- A Promise of Love and Respect or A Prerogative to Rape?

I. Introduction

Rape is a nightmare, the thought of which haunts every woman across the world irrespective of her age, relationship status, financial conditions, etc., the fear of which is forcing a large number of women to capitulate to the stringent, gender-biased societal norms. Owing to its abominable nature, rape has been rightfully recognised as a heinous criminal offence by various criminal justice systems around the globe, including India. Nevertheless, when we look at the laws pertaining to rape in India, a certain part of the law clearly delineates the inclination of the Indian Criminal Justice System towards patriarchy. The Indian Criminal Justice System has, time and again, refuted the concept of marital rapes and its existence in India. The fact that a married woman can be raped by the man she is married to and is living with, seems to be unfathomable to the law makers of our country up-till today. Furthermore, this refute has not been left unreasoned by the refuting party, irrespective of whether the reasons are of acceptable or unacceptable nature. There exists a set of few arguments, which always crop-up in order to negate the concept of marital rapes in India, whenever there is a demand to legally recognize and penalize the offence of marital rape in India. Further in this article, the negating arguments, the need of legal recognition and penalization of marital rapes will be elaborately discussed.

II. The marital rape exception clause

In a survey conducted by Equality Now, it was found that out of 82 countries, India is one of the only 10 countries where rape of a woman or a girl by her spouse or husband is expressly legal.³ The Indian Penal Code which is the major Indian criminal legislation, has a marital rape exception clause. Section 375 of the Indian Penal Code, which is pertaining to the offence of rape, has two exceptions, out of which the second exception states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.⁴ This marital rape exception is believed to be based on a statement of Sir Mathew Hale who was the Chief Justice of England in the 1600s. In one of his disquisitions named The History of the Peas of the Crown, he wrote “the husband can’t be guilty of rape committed by him upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract”. This statement sowed the seed which further led to the establishment of the notion that a woman, once married, looses the right to refuse any sexual interaction with her husband.

Ever since the feminist revolution came into existence, the most common justification that is put forth in order to not criminalize marital rape is the “concept of implied consent” in a marriage. Based on this concept, marriage is considered to be a civil contract and consent to sexual activities is considered to be the defining element of the contract.⁵ It must be noted here that this concept of implied consent for sexual activities in a marriage stands clearly inconsistent with the definition of consent that has been given in Section 375 of the Indian Penal Code. Explanation 2 of Section 375 defines consent as an unequivocal voluntary agreement when the woman by word, gesture or any other form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.⁶ The most vital part of this definition are the last three words: “specific sexual act”. It clearly specifies that one action cannot amount to a recurring and irrefutable agreement for different sexual acts, which means that specificity is an essential. Secondly, the agreement has to be unequivocal and voluntary that is unambiguous, clear, precise and one’s independent choice. It must be noted that marriage does not fulfil any of these criteria. A woman marrying a man with her consent does not amount to an unequivocal voluntary agreement to any and all kinds of sexual acts of her husband’s choice. A vow to stay with each other till death do them apart is a sacred promise of love and respect, and it is illegal and unethical to misinterpret it as the transfer of ownership of a woman’s body to her husband. There is nothing called as implied consent in the eyes of law pertaining to rape, be it an unmarried woman, a prostitute or a married woman.

Furthermore, as far as the argument of protecting the sacrosanct of marriage by not criminalising marital rape is concerned, it is high time for the law makers to understand that the moment one person in a marriage is subjected to brutality which amounts to rape, by her own partner, the marriage is destroyed at that very moment and there is no saving it thereafter. In the words of Morton Hunt, an American psychologist, who was one the very firsts to express their views on marital rape, “the mentality of a marital rapist is that husbands are supposed to rule their wives”.⁷ The idea of a sacrosanct and a marital bliss, places the Indian concept of the institution of marriage at a paramount level. The holiness attached to it, brings with itself the notion of wife being subservient to the husband, or the husband being the master of the wife and her body being the prerogative to the husband. To rebut this argument which is quite obsolete, firstly it is necessary to understand that marriage is a union of two equals and not a slavery agreement. It is nowhere mentioned that a lady is bound to do away with all her rights as an individual as soon as she enters into a marital union. Moreover, after being subjected to such brutality, when the victim is denied justice in the name of protection of the sacrosanct of marriage, it is nothing but the mere protection of the male chauvinism. This denial of justice to the married women who are raped by their own spouse is only a method to prolong subjugation of women in the Indian society.

III. Limpid violation of fundamental rights

Owing to the patriarchal roots of this country, a wife has always been considered acquiescent to the husband. Earlier women were chattel to their husbands and this meant that they did not have any rights in the marriage.⁸ In the era of such beliefs where husbands have been considered to be the masters of their wives, it has been inscrutable to a large section of the population of this country that a husband can rape his wife. Hence, this leads us to another argument that is always put forth in order to negate the concept of marital rape; the argument being that after marriage, a woman steps into a submissive position which is subject to the dominance of the man she is married to, thereby losing her right to bodily autonomy to her husband who, from the time of marriage, enjoys exclusive privileges over his wife’s body.

Not considering marital rape as a crime is a step towards the upholding of the orthodox, patriarchal and sexist norms of the Indian society, which have been existent for too long now, and there is a dire need to change the picture. Even if, marital rape is not recognized as a criminal offence by the law makers of our country, the act of marital rape is in successful violation of various significant constitutional provisions and the rights guaranteed thereunder, which clearly shows that not criminalizing marital rape is a wrong decision.

First and foremost, Article 14 of the Indian Constitution talks about equality before law and the equal protection of laws to every person within the territory of India. In the case of Vikram Cement v State of MP⁹, the Apex Court opined that “The underlying purpose of Article 14 is to treat all persons similarly circumstanced alike, both in privileges conferred and liabilities imposed.”¹⁰ Denying justice to rape victims, where the denial is based purely on the marital status of the victim and her relation to the culprit, and not imposing liabilities on the culprit because of his relation to the victim is a blatant violation of the very purpose of this Article. Moreover, in the case of M Nagaraj v Union of India,¹¹ a constitutional bench of the Hon’ble Supreme Court has clearly upheld that in very certain terms the right to equality is a basic feature of the Indian Constitution.¹² Therefore, not criminalising marital rape also leads to the violation of the basic feature of the Indian Constitution. Also, this Article allows reasonable classification if it has been successfully proved that classification is based on intelligible differentia and the differentia has a reasonable relation with the object sought to be achieved by the legislation, which in this case cannot be proved and it is an excellent example of error on the face of law. Section 375 of the Indian Penal Code, 1860 criminalizes rape and protects a woman but it excludes forceful intercourse if the woman is married to the culprit. Here we see that the purpose of the legislation is to give justice to the rape victims but the differentia that is being created has no nexus with the purpose of the legislation, it is rather contradictory to the purpose of the legislation.

Also the fact that if a married woman falls within the age group of 15- 18 years of age, then, marital rape would be treated as a criminal offence, which doesn’t strike sense at all, since there is a wide disparity in the age for a consent for a married girl child and an unmarried girl child. In the eyes of law, a girl who is under 18 years of age is considered to be a minor and thus her consent doesn’t count, so just because of the prevailing customs in our Indian society where girls do get married under 18 years of age, that would still not justify the lowering of the age of consent to as low as 15 years of age.

Further, taking into account Article 21 of the Indian Constitution, that also is being grossly derogated with. This provision guarantees every person the right to life and personal liberty. Right to life is also inclusive of the right to live with human dignity which is not being considered if marital rape is not being considered as a criminal offence. So if a law doesn’t make an effort to criminalize something which is as heinous and derogatory as marital rape, Article 21’s purpose is being put to utter shame. Adding to it, right to bodily self-determination comes under the ambit of right to life, which again is being neglected. Right to good health is also a pertinent part of Article 21 and that also is being disobeyed as marital rape has an extremely serious repercussion on the physical, intellectual and spiritual health of a woman. Right to privacy is another area that comes under the ambit of Article 21 and when a man imposes himself on another woman sexually, be it married or unmarried, he is disturbing the sexual privacy of a woman, thereby clearly violating Article 21.

Looking into Article 15, it imposes a duty on the part of the state to ensure that there is no discrimination towards any citizen on the basis of sex, religion, race, caste or place of birth. When we don’t consider marital rape as a criminal offence, we are upholding and accepting the stereotypical patriarchal mind-set that a married woman has an implied consent to all sexual relations with her husband. This is nothing but pure, absolute discrimination that has been existent in our society and more so the law which is supposed to eradicate such evils, is contributing in aggravating the situation.

Article 19(1)(a) that guarantees freedom of expression is also being defied when something as atrocious as marital rape is not being penalized by the law. Freedom of expression includes the right of an individual to express his/her sexual desire or sexual orientation. Freedom of expression also includes the right to consent or not to consent to a sexual relationship which gives the power to initiate it as well as refrain from doing it. Several judgements by the Supreme Court have also expressly stated that free expression includes the right to deny a sexual relationship, which is obviously not being kept in mind while not criminalizing marital rape. Moreover, freedom of speech and expression also includes a person’s right to speak about, express and report any atrocity that he/she is being subjected to. When something as brutal as marital rape is not criminalized, it takes away the woman’s right to speak about, express and report such brutality that she was or is being subjected to, as the complains and cry for help falls on deaf ears.

IV. Conclusion

Many rights including basic fundamental rights are being vandalized when we don’t recognize something as brutal, heinous and destructive as marital rape as a criminal offence. And the above pointers clearly indicate the fact that the act of marital rape is entirely unconstitutional. Violating the law of the land is something that is too outrageous and should, at once, be taken care of, but turning deaf ears and a blind eye to this social evil, by the law, in a certain degree, creates a question mark on the role of judiciary as it only enhances the crime by protecting the perpetrators and making the entire legal system inefficient.

A woman being forced to indulge in intercourse with her husband, does not come as a surprise in our society because this is considered to be a normal affair, as a woman is bound to fulfil the whims and fancies of her husband and is nothing but a subject to the wishes of the man she has married to. It comes as a matter of utter surprise and shock that the marital status of a woman contributes as a deciding factor as to whether a rape is actually a rape or not.

The big question that remains unanswered here is what should be looked into in order to decide whether an act amounts to a specific criminal offence or not? If we go by the rule, for an act to be a criminal offence under a specific section of the Indian Penal Code, it should fulfil the components of the particular Section. When a man forces his wife to have sexual intercourse with him, without her consent and the act fulfils all the components of the offence of rape as defined under Section 375 of the Indian Penal Code, why should the act not be punishable? How does the fact that the victim is married to the culprit matter in such case? When we have so many legally correct reasons to eliminate Exception 2 of Section 375, then why does it still exist? Doesn’t this show that the law makers are still adamant to preserve the patriarchy that is deep rooted in our society. Are we really fulfilling the purpose of the law? Aren’t we playing a part in upholding the masochistic mind-set when we say that ‘women in a marriage never get raped’? Are we all, not contributing to one of the most disastrous of crimes?

Lastly it is said that there are other remedies for married women when they are subjected to any sort of brutality in a marriage like section 498A, Protection of Women from Domestic Violence Act, personal laws, etc. When this argument is put forth, the difference in the severity of other offences and marital rape is completely ignored. So now what we all need to collectively think is that why is it so difficult to get such a violative and outrageous legislation eradicated? To conclude, it is high time the law makers do away with their obsolete, patriarchally inclined, arbitrary and unconstitutional reasons to not criminalize marital rape and work towards the motto of “justice for all.”

“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.”― Philippa Gregory, The Red Queen

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