Implied Licensed Lawful Rapes of Wives in India: Analysis of Marital Rape

Written by Pooja Shukla & Mohammad Atik Saiyed

INTRODUCTION

“For there is but one essential justice which cements society, and one law which establishes this justice. This law is the right reason, which is the true rule of all commandments and prohibitions. Whether written or unwritten, whoever neglects this law is necessarily unjust and wicked” -Marcus Tullius Cicero.

The time has not changed; instead, it has transformed like a piece of coal into a pinnacle of paragon, refracting & reflecting the modern dews of development. We live in the 21^st century, in the fourth wave of feminism, where modernization & western progressive ideology has touched nearly every sphere of the global world, including politics, economics & financial systems, societal structures, and psychology.

The females in the modern world are fighting toe to toe, standing head-to-head, and walking hand in hand, making the life of humans on this earth relatively more complete. Women are the real architects of the home & the world, walking ahead every day but are we moving forward or not?

India, the land of diversity, is also the land of dilemma, wherein it is one of the only 36 countries where the raping of a wife by her husband is not criminalized. The nation has changed drastically in its judicial condition by a series of judgments heading toward more liberal & open ideologies of the protection of rights & welfare of all. Surprisingly, Exception 2 of Section 375 of the IPC, 1860, which deals with non-consensual & unwilful sexual activity classified as “rape,” expressly excludes the horrendous crime of marital rape.

If sexual intercourse occurs between a woman and her husband, and his wife is over 15, an exception to the said rule exempts the husband from legal repercussions. The Indian government believes marriage is an irrevocable “implied consent” to sexual intercourse. But a significant legal and social question that the judiciary and legislature must address is this: in the twenty-first century, which is experiencing the quickest pace of change, do women’s privacy and dignity not match those of men?

Although not recognized under Indian penal law, the 8th edition of Black’s Law Dictionary classified marital rape as “a husband’s sexual intercourse with his wife by force or without her consent.” Therefore, marital rape happens when the husband believes the wife’s body belongs to him. According to contemporary social jurisprudence, ––the husband and wife are recognized as equal partners in a marriage, and neither man is allowed to assert any superior claim over the other regarding the other’s physical attributes or social standing.

UNVEILING LEGAL REMEDIES AND EMPLOYING LAW AS A TOOL FOR SOCIAL CONSTRUCTION IN THE REALM OF MARITAL RAPE.

Paramountly, for a rational and reasonable understanding, the aspect of Marital rape needs to be comparatively analyzed with the constitutional framework, personal laws in the Indian legal domain, and the international safeguards and jurisprudence which has been provided hereinbelow:

Article 21 of the Constitution states that every citizen has the right to life and personal freedom. And over time, the Supreme Court has expanded this article’s purview through several decisions, adding the rights to bodily autonomy, the right to live with dignity, and the right to sexual privacy. Marital rape is when a wife’s body is treated as a belonging entitlement to the husband, and sexual acts are performed against her will.

In Indian culture, divorce is frowned upon because marriage is regarded as a sacred institution. Significantly, personal laws are discriminatory and unequal when it comes to women.

Whether in the law of succession in personal laws or the law for divorce, they are biased on notions of patriarchal society. Though the judiciary has worked hard to demolish the arbitrary practice of triple talaq, providing a little relief to Muslim women and providing a right to father’s property for daughters after 2005 that is not the end. There are several practices like Polygamy in Islamic law, which is allowed and arbitrarily done by the men, leading to several instances of suffrage and silence by women in their marital homes in fear of getting deserted.

Rape is a horrific crime against an individual that comprises violence, assault, and a moral decline. Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act both list cruelty as a reason for divorce. The court ruled that although marital rape is not a recognized criminal offence, the court can nonetheless award a divorce since it acknowledges the conduct as physical and emotional cruelty. A partner in a marriage has the power to choose not to suffer, which is essential to the autonomy guaranteed by natural law and the Indian Constitution. The law cannot make a spouse endure suffering against her desire by denying a divorce.

The recent judgment by Kerela HC (MAT APPEAL NO. 151 of 2015) held that Bodily integrity is included in the right to respect for one’s physical and mental well-being; any disrespect for or violation of one’s bodily integrity is a breach of one’s right to personal autonomy. Because of this, marital privacy is fundamentally and intimately linked to human freedom, and any physical or other intrusion into this area would reduce privacy.

Fundamentally, this would amount to cruelty. Therefore, the court is not prohibited from considering marital rape as an act of cruelty and granting a divorce simply because it is not punishable under the law. The Bench concluded that marital rape is a solid basis for filing for divorce.

In several cases over the years, the Supreme Court had granted the remedy of dissolution of marriage, not only when adultery, cruelty, or desertion was present but also on the grounds of irretrievability when the sacred bond of marriage between the two parties had broken entirely down; lost its trust, love, and care for the opposite parties; had a severe emotional breakdown; failed to manage their respective emotions. Although the “irretrievable collapse of marriage” is not expressly mentioned in the Constitution, the Supreme Court has consistently exercised its authority under Article 142 to administer the required, uncompromising justice.

COMPARATIVE ANALYSIS OF THE INTERNATIONAL JURISPRUDENCE

Analyzing India’s violations of the human rights standards embodied in different international instruments, omitting such heinous crime defies the rights of women and shall therefore bear the responsibility of imposing penalties on the offender, making amends to the victim, amending the criminal code to make it compliant with international human rights laws, and effectively enforcing measures to combat gender-based violence. The Beijing Declaration calls on all nations to ensure the ratification and full implementation of CEDAW.

The unwillingness of India to classify marital rape as a criminal action violates not just CEDAW, to which India is a party, but also the International Covenant on Civil and Political Rights (ICCPR) infringing on Article 26 or Article 5 and the Universal Declaration of Human Rights (UDHR).

DIVERGING VIEWPOINTS

We live in an era where there is a buzz about creating an equal world for every human being. We talk about designing a ‘Just’ society for women providing them with equality in status, opportunity & liberty. But the initial step in the ladder of modernization is to stop seeing women as properties and instead be honoured as equal and distinct legal entities. The exception that non-criminalizes the crime of rape is violative of the value & fundamental right enshrined in Article 14 of the Constitution, which promises equality to men & women in the spheres of life.

Based on marital status, the exemption establishes two classes of women and immunizes the action of men against their women. This exemption allows married women to be victimized for no other reason than their marital status and protects unmarried women from the same acts. Article 14 of the Indian Constitution guarantees equal rights and protection to all its citizens.

Women’s fundamental rights to equality, dignity and privacy are violated by the exception granted by Section 375. Classifying marital rape as impliedly consent-based sexual intercourse also violates the spirit of Article 21 of the Constitution, which guarantees the right to health, privacy, dignity, safe living conditions, and a safe environment for every individual.

It was made clear by the Honorable Supreme Court in Justice K.S. Puttaswamy v. Union of India. The exception furnished in the section is non-congruent with the commitment & vision of the Indian nation towards a developing progressive country with equal women’s rights & growing leadership to change the world.

To meet the needs of the changing times, the JS Verma Committee was established in response to the nationwide protests in the Nirbhaya gang rape case, which also recommended the government discard the regressive exception provided by the law from the shackles of medieval India. Earlier, rape was considered only damage to the honour of the woman & her family. But today, we have turned into a society that protects the rights of everyone, which includes the fundamental rights of equality, dignity & privacy of women. In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW)67 suggested that the Indian government ought to condemn & criminalize marital rape.

“Injustice anywhere is a threat to justice everywhere.”

-Martin Luther King
CONCLUDING THOUGHTS AND SUGGESTIONS

Hindus consider marriage to be a sacred bonding. The Indian society at the time viewed divorce as being too radical. The silent victims of such a strict regime were the women. But times have changed, things have changed, and the social order has changed. Women who no longer have to suffer abuse or injustice at the hands of their husbands in silence are the true winners of such a policy. The system of marriages, however, is expected to come to a total end due to how the judiciary handles marriages that are irretrievably broken.

It’s high time that we realize and consider crimes as crimes, punish them and prescribe legal penalties for them. Marriage is not a product of terms and conditions applied where both the partners consent to get physical; it’s neither an implied, irrevocable consent. Thus, the commission of any criminal act should not impact the victim’s marital status.

Even while our current rules are far from ideal, they will eventually take into account the interests of both sides and be flawless. But one thing is clear to all of us: laws do not always come to our aid in eradicating societal problems like marital rape. Instead, social change in people’s attitudes is required. It’s not the end of oppression; it’s the beginning of a new revolution aiming to eradicate this societal ideology, leading to long-lasting oppression in marriage.

Marriage isn’t an irrevocable agreement; it is a love relationship, giving you a companion and not a personal slave. Normalizing divorce is the need for the hour; if this is not done, many victims will silently suffer every day in their marital homes. This customary crime would lead to an enormous failure of Indian society and culture, leaving no humanity in humans.