By: Adv. Ruchika Chouhan
Marriage is regarded by the Indian society as a holy union of two individuals. Sadly, how ‘holy’ this union is, remains a question shoved behind the curtain of marriage. There are numerous women who are afflicted by the ruthless pain of marital rape, sadly not yet criminalized by the Indian Parliament. The rationale for not criminalizing marital rape lies in the archaic Contractual Consent Theory as propounded by Sir Mathhew Hale in the 17th century, wherein a husband could not be held guilty of marital rape since his lawful wife was deemed to have ‘consented to have sexual intercourse with her husband at his whim’. Such an ideology not only degrades the sanctity of marriage but also deprives women of their fundamental right to live with dignity and their personal liberty.
Married women in India, above the age of fifteen (15) years, who are raped by their husbands, do not have any legal protection, of the Indian Penal Code, 1860. The only situation when such aggrieved married women can seek relief from the Court is when their lawfully wedded husbands have committed rape on them during the period of separation. However, married women above the stipulated age limit, are sadly, not entitled to any protection against marital rape.
Such a law is violative of the fundamental right of equality and right to life and personal liberty, under Articles 14 and 21, respectively. Merely discriminating between rape victims based on the relationship between the rapist and the victim and / or on the basis of age is wholly unreasonable. Every individual has the right to its own bodily integrity and absolutely nobody has the right to violate it, not even a husband. Instead of protecting and safeguarding his wife’s bodily integrity (physical, mental and / or emotional), the law sadly allows the husband to violate the wife and walk away scot-free, regardless of the gross violation of the cardinal human and fundamental rights, on account of a staunch patriarchal ideology, reinforcing the most unfair male dominance of the society.
After the nationwide chaos, over the neglected echoing screams of the victims of sexual assault, the Justice J S Verma Committee was constituted and subsequently issued its recommendations in 2013, stating that the unreasonable immunity granted to a husband-rapist should be taken away and should be penalized like any other rapist on grounds that ‘a rapist remains a rapist regardless of his relationship with the victim’. However, the Criminal (Amendment) Act, 2013, did not provide for amending the rape laws in line with the protection for marital rape victims, as recommended by the Committee.
On the other hand, the Protection of Women from Domestic Violence Act, 2005, includes ‘sexual abuse’ under the definition of domestic violence. Therefore, marital rape can be reported as domestic violence and requisite action can be taken against the husband under the Act.
On 7th August 2021, the Hon’ble Kerala High Court dismissed an appeal filed by a husband against an order of the Family Court categorically holding that marital rape qualifies as cruelty.
However, the need of the hour is to make marital rape an offence. The reasoning that the private sphere of marriage cannot be intruded stands redundant as the marriage is scrutinized through other offences, namely Cruelty (Section 498 A), Bigamy (Section 494) and Dowry Death (Section 304 B) under the Indian Penal Code, 1860. These are offences not just against the society but also committed against the institution of marriage, just as marital rape. Further the Protection of Women from Domestic Violence Act, 2005 and the Hindu Marriage Act, 1956, govern conditions for right of a woman to seek redressal for domestic violence and divorce, respectively, whilst combating sour marriages.
As a party to and having ratified the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), the willful abstinence of the Indian Parliament from amending the Code on the lines of criminalization of marital rape amounts to violation of Article 1 of CEDAW.
According to the statistics, as shared by the Ministry of Women and Child Development (‘Ministry’), the number of complaints registered with the Ministry from March till September, 2020 accounts for 13,410 cases. This figure only accounts for those cases which have been reported and is inclusive of other forms of domestic violence other than marital rape, as well. In a country where the larger percentage of the married womenfolk are subdued and threatened by their in laws and / or give in to societal pressure, coupled with the absence of a proper regime against marital rape under the Code, the probability of the actual number of marital rape amounting to domestic violence are countless and unreported. During the pandemic, where thousands have faced unemployment, failure of business, in addition to lack of proper education, sadly, the only mode of unleashing the inner frustration for the aggressive segment of the menfolk, is more often than not, in the form of violence, on submissive family members, especially the wives. While the world is battling the medico-legal issue of the pandemic, the violence meted out to the married women in the form of marital rape is wholly neglected by the law makers, and once again suppressed.
In light of the above, why is the personal liberty compromised in the case of marital rape? If a woman is subjected to physical and / or mental harassment for dowry, she can seek protection under different provisions but if this leads to rape, the woman cannot seek protection under the Criminal Laws of the country. In the absence of such a framework, who will protect women against the diabolical patriarchy that reeks in our society and sadly, only views a wife as a sex object, especially in the lower rung of the society? Further, can a possibility of misuse of laws be the correct reasoning for not protecting a woman in her own house? Can the Government not reassure the married women about their safety in their own abode or should the Government choose to sleep in oblivion, where the trust of millions is broken and are made to reside with persons, who happen to be perpetrators of the most heinous crimes unleashed on them? Her psyche and her dignity are compromised on a daily basis for years and such cases go unreported because of a centuries’ old patriarchal ideology. Where we teach our girls self-defense, is it only to be applicable till they get married? The fundamental principle differentiating any sexual intercourse from rape is the lack of free consent between the two individuals in the act. The autonomy of a woman over her body, mind and soul cannot be ceded to another individual owing to the solemnization of a marriage. Despite entering into a marriage, an individual does not ever lose one’s individuality. Viewing a marriage, where a man rapes his wife as normal, is far from the essence of marriage and should be strongly revolted against. It is high time that the State jolts out of its oblivion and wakes up to the bloodcurdling screams of married women. After all any kind of rape is rape!
A woman, throughout her life, has the right to sexual autonomy. Simply entering into a marriage does not mean a one-time irrevocable grant of consent to her husband at the time of entering into the wedlock. Such a right is independent of the entire institution of marriage.
The ball now lies in the court of the Judiciary, as a petition for criminalizing marital rape, as has been filed before the Delhi High Court and is pending final hearing under W.P (C) No. 284 / 2015. From what seems to be a long battle, this judgment can be the first breath of respite ever since the enactment of the Code to secure the basic human and fundamental rights to married women, needed to help them lead a life with minimum human dignity in their own personal space.
Although India is progressing in enacting laws for the betterment of the society, the pathetic status of women gets further exacerbated by being pushed into oblivion by our law makers. Protecting a civilized society starts from protecting its smallest unit, a family, wherein equal roles are played by the female and male energies, alike. If the female energy is not respected due to the male dominance, stemming from the incessant reinstatement of the patriarchal ideologies, India is far from progressing as a country that guarantees the Fundamental Rights to all its citizens alike.
Ruchika Chouhan graduated with BBA LLB (Hons) in 2019 and has practised for two years as an Advocate. She has expertise in wide ranging matters and further holds keen interest in contributing towards disseminating information amongst the general public about the legal developments in the country. Currently, Ruchika is pursuing Masters of Law in Intellectual Property and Technology Law from Jindal Global Law School and continues to aspire to contribute to the development of her profession. She can be reached at ruchika.chouhan95@gmail.com.
You are right Ruchika. I am sure your argument will sensitize people to the issue and make everyone understand, what you are telling is right.
True. I hope people understand how important and sensitive this topic is. Everyone knows but nobody wants to talk about it. Objectifying a woman and not considering her consent is always put into a question.
It’s definitely a sensitive issue that needs to be acknowledged before our society.