Published On: September 20, 2021 at 13:15 IST
Introduction
Marriage is considered to be a sacrament in India and not mere a contract. From the ancient times, the concept of marriage, its rituals and its significance have a really important place in the Indian culture. However, after the blending of various cultures like Aryans, Muslims after invasions, the concept has gone through variables and dynamics. Various concepts like Saptapadi, Kanyadan, Talaq, Meher etc. came into being.
Rape has been considered to be a great social evil from the very beginning. Various laws and punishments have been made to protect a person specially women in case of sexual intercourse done with her without consent or forcefully or even in the case of minority. Even the laws have been evolved after brutal cases but still there is a concept that is vague in India i.e., Marital Rapes.
The concept is still a grey area and different courts have different views regarding it. Recently, Chhattisgarh High Court has given a judgment in a case where it has expressed its views on Marital Rape in the favour of husband who forcefully had sexual intercourse with his wife.[1] The case has gained a lot of popularity and even the court was criticized on its decision.
Marital Rape as a Concept
Marital Rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need to involve physical violence. Marital Rape is considered as a form of domestic violence and sexual abuse.
In ancient times, Marital Rape were not considered as rapes even if done without spouse’s consent. But as per the modern societies, it is now considered as rape in various parts of the world. This generally takes place within abusive relationships. An important reason was patriarchal system of societies.
But after the concept of gender-equality and women-empowerment came into being, the marital-rape was adjusted in the criminal offences. But in some countries, this view has not been adopted yet under criminal laws rather as an exception to rape as per Indian Penal Code. Even in India, the concept is quite contradicting and even has caused lot of disputes even among different courts.
What are the provisions of Marital Rape in India?
In India, the concept of Marital Rape is considered to be a non-criminalized Crime. The matter has been properly defined under the Indian Penal Code, 1860 under the concept of Rape. It is very immoral and inhuman for the society.
- As per Section 375 of Indian Penal Code, 1860
“A man is said to commit “rape” if he:
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into vagina, urethra, anus or any part of any part of body of such woman or makes her to do so with him or any person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
Especially without her consent, or consent taken through force, misconception or fraud or in a matter, she is under the eighteen years of age, the consent doesn’t matter, or she is unable to communicate her consent.
But there are 2 exceptions regarding the rape and one of them is Marital Rapes. Exception 2 is written as Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
On one hand, where the Section pays focus on the word ‘Consent’ on one hand but it contradicts itself in the exception of Marital Rapes. This means that India falls under those thirty-six countries of the world which have not criminalized marital rapes.
- J.S. Verma Committee on Marital Rapes
Justice Verma Committee was constituted to recommend amendments especially in the field of punishments prescribed for sexual offences to be performed against women. The Committee was formed on December 23rd, 2013, after the outrage over the Nirbhaya Gang Rape Case. It was a three-member committee headed by Justice J.S. Verma with Justice Leila Seth, Former judge of High Court and Gopal Subramanium, former Solicitor General of India.
The Committee submitted its report on January 23rd, 2013, making various recommendations on laws related to rape, marital rape, sexual harassment, trafficking, and child sexual abuse, medical examination of victims, police, electoral and educational reforms.[2]
In case of Rapes, the main advice given by the Committee was that rape should be retained as separate offence and it should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of sexual nature should be included in its definition.
Also, they have explained that Indian Penal Code, 1860 differentiates between rapes within marriage and outside marriage. Under the Indian Penal Code, 1860, sexual intercourse without consent is prohibited but however, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife i.e. Marital Rapes.
They defined in the report that, “The Law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes is not a valid defence against the crimes of rape or sexual violation”.
They also notified that, “The exemption for marital stems from a long-outdated notion of marriage, which regarded wives as no more than the property of husbands.”
But due to contradicting views in regard with concept, the Indian Law has never adopted the following recommendation till date.
Case Laws
- Independent Thought Vs Union of India[3]
Exception of Section 375 contradicts Article 14
In this case, the petitioner urged the Supreme Court to revisit to exception to Section 375 of Indian Penal Code, 1860. The Article 14 of the Constitution fails in the case of exception to Section 375 of the Indian Penal Code, 1860. In it, victims were given authority prosecute the perpetrators if they were unmarried but not in case of married victims because they are their wives only.
The court in this case denied the contention of criminalizing Marital Rape and observed that:
“The view that Marital Rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional, but personal-nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
Hence, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
- Pardeep Tomar Vs State of Uttar Pradesh[4]
Minor girl must not reside with her husband before majority
The accused in this case married a girl who was only 16 years old at the time of marriage. The court rejected the contention that the girl may be allowed to go with the accused since they are married. The court opined that after the ruling in Independent Thought case, it is not permitted to do so. Even if the victim married him with her own consent, she shall not be allowed to cohabit with him until she reaches the majority age.
The court in this case observed that:
“It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. In there is some theory that propounds such as unconstitutional myth, then that theory deserves to be completely demolished.”
Sexual Intercourse by husband upon his Wife during Separation
Sexual intercourse between husband and wife is normal but when they are living as husband and wife. Even if wife is above 18 years, it can be concluded form Section 375 that the husband can have sexual intercourse with wife even without her consent in Indian Penal Code. But this may not be case in the situation when both of them have separated. It is seen as offence under Indian Penal Code under Section 375B[5] which writes that:
“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years, but which may extend to seven years, and shall also be liable to fine.”
This Section prescribes that if a husband and wife are not living under the same roof for some reason may be by mutual agreement or legally, they can’t have sexual intercourse with each other as per this section. For this period, both of them have to maintain some rules and regulations as per given by law. If they failed to do so and have sexual intercourse with each other, they are liable for the offence in the Section 376B. In such a case they are entitled to punishment of at least two years and at most seven years with fine.
What are the guidelines to be followed during Legal or Judicial Separation?
Legal Separation also refers to Judicial Separation or Limited divorce or in general, it means separation from bed and board. The length of this time period is generally between 6 months to 2 years, which varies from state to state. Generally, there are some official guidelines written on the form of legal separation for which both of them have to abide by. Some of these are:
- Living Separately
Husband and Wife must live separate and apart from each other during the time period. But in some cases, this might be changed because of the circumstances so sometimes the persons can live under one roof but with some limits prescribed.
- No Harassment or Interference
Neither party should in any manner harass, annoy, or interfere with the other. This also includes getting physical or having sexual relationships with each other.
- Child Support, Alimony, property division
This all is provided by the court under an agreement made between husband and wife temporarily. Permanency can be given after divorce.
Such types of guidelines are present in the agreement of legal or judicial separation which is signed by both the parties and is binding in nature. If not exercised properly, the parties can be punished under as per law. One of such punishment is mentioned in Section 376B of IPC.
What are the Conjugal Rights given to a husband?
Generally, conjugal rights[6] refer to those rights that demonstrate sexual relations, regarded as exercisable in law by each partner in a marriage. Hence, in law conjugal rights are rights created by marriage, i.e. right of the husband or the wife to the society of the other spouse. These rights are recognized in both –personal laws and criminal laws.
Section 9 of the Hindu Marriage Act, 1955 relates with the restitution of conjugal rights. As per this section:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”
For this Section to be applicable the reasonableness has to be proved by the person who has withdrawn from the society. Hence, if a wife is not giving consent to get physical even after marriage which is a conjugal right, the husband can approach directly to the court for the restitution of this conjugal right. Similarly, in other personal or secular laws also, the rights can be retrieved by simply approaching the court.
It is to be noted that the ‘test of reasonability’ has to be conducted by the court and has to be proved by the person who has withdrawn from the society on any grounds specified.
Conclusion
Marital Rape have been increasing lately especially in India. Where many countries have made Marital Rape a criminal offence, in India it is still a conflicting area. Marital Rape is exempted from punishments given under ordinary rapes only because the accused is the husband of the victim. India is a patriarchal society, and the culture is based on family as a base, due to which for a long period, women were just treated as household workers and were not given any rights. This is a reason behind non-criminalization of Marital Rape in the country till date.
Even the term of the exception is itself gender-biased infringing the Article 14 in one way or other. There is no need to force a person to do sexual intercourse when a person can go to the court directly for the restitution of conjugal rights. If it is found by court to be in favour of the complainant, then he can claim his conjugal rights with the spouse.
Reference
- Marital Rape – A non-criminalized offence in India
- How are Conjugal Rights in violation with Marital Rape?
[1] EXPRESSWEB DESK, “Sexual intercourse by husband not rape, even if by force”, (Last visited on September 15th, 2021)
[2] “Marriage is not a valid defence, against rape, says committee”, (Last visited on September 15th,2021)
[3] Independent Thought Vs Union Of India, (2017) 10 SCC 800
[4] Pardeep Tomar Vs State of Uttar Pradesh, Matters Under Article 227 No. 4804 of 2020, delivered on January 27, 2021
[5] SANGEETA KRISHNAN, “Section 375: All you need to know about Section 375 of IPC”, (Last visited on September 16th, 2021)
[6] APURVA VISHWANATH, “Explained: Conjugal rights before the Supreme Court”, (Last visited on September 16th, 2021)