With 150 countries criminalising marital rape, India stands out as a boorish nation with successive governments failing to take a principled stand on this emotive issue. This dichotomy sticks out, even more, when one recalls the vociferous demands of politicians, news television anchors and citizens who took out candlelight marches for the execution of the six men convicted in the infamous Nirbhaya rape case about 10 years ago. It would be pertinent to recall that the Justice Verma Committee that was formed in its aftermath to revamp the laws and the justice system for dealing with one of the most heinous forms of assault recommended criminalising marital rape.
Most of the committee’s recommendations, including broadening of the definition of rape, and enhanced punishment if the brutality had been committed by a superior or guardian were accepted immediately with minor changes when the Criminal Law (Amendment) Act, 2013 was passed by Parliament. However, the recommendation to criminalise marital rape was not accepted either by the UPA government of Manmohan Singh or the two successive NDA governments of Prime Minister Narendra Modi. The reluctance of the NDA to criminalise the brutality is even more glaring because it has had two very strong and opinionated women leading the Ministry of Women and Child Development, Maneka Gandhi and Smriti Irani.
Section 375 of the Indian Penal Code (IPC) defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound health and in any case is under 18 years of age.” However, Exception 2 under Section 375 excludes marital rape from the definition of rape. It says that husbands with legally wedded spouses cannot be charged with rape, even if the wife is unwilling or the act was committed without her consent.
Parliament debates on the subject have been rare and mostly one-sided. Most of the participants have been worried about its impact on the institution of marriage, on the culture of India, and how it could be used as a weapon for blackmail by vindictive wives.
Parliamentary approval is necessary because laws are enacted and passed by the Executive and courts can only adjudicate on their constitutionality.
The issue of marital rape is currently being debated in the Delhi High Court due to petitions filed by some NGOs seeking the dropping of Exception 2 under Section 375 so that husbands forcing themselves on their spouses can be prevented even if the woman is above 18. The petitions have been filed by RIT Foundation, All-India Democratic Women’s Association and two individuals. Earlier, the marriageable age for women in India was 15 but, after the introduction of the Protection of Children from Sexual Offences Act, 2012, it was raised to 18. Now the government proposes to raise it further to 21. Sexual intercourse with a separated spouse and with minors, even if married, is already a criminal offence.
In 2017, the government had told the court that removing the marital rape exception under Section 375 would destabilise the institution of marriage and could be misused by women against their husbands. Continuing in the same vein, it submitted in the Delhi High Court that just because other countries have criminalised marital rape, India is not compelled to follow them.
Invoking peculiar logic in its written submissions to the court, the government said, “India has its own unique problems due to various factors like low literacy, lack of financial empowerment of the majority of females, the mindset of the society, and poverty, etc. and these should be considered carefully before criminalising marital rape.”
In 2017, the government had told the court that removing the marital rape exception would destabilise the institution of marriage
In 2016, Gandhi, as minister for women and child development, said in Parliament that there could not be a law against marital rape because marriage was a “sacrament” and it would make no difference because “no one would complain”. Another argument given by the opponents of the proposed law is that it will be difficult to prove the crime. A wife may say ‘yes’ once and then go back on her consent and this could be used to blackmail the husband. The government is also trying to tell the court that instead of calling for the removal of Exception 2, the complainants can make a representation under the Domestic Violence Act.
Senior Supreme Court lawyer and child rights activist Shashank Shekhar told Tatsat Chronicle, “I am shocked to hear all this talk about marriage being a sacrament. Marriage cannot become a source of exploitation and torture. It has to be based on the principles of equity and equality.” Any law must stand the test of highest equity and a good conscience and the rape law, if it leaves out marital rape, fails on all three counts.” On victims resorting to the Domestic Violence Act, he says, “Who are they trying to fool? Rape is a criminal offence under the IPC, while the Domestic Violence Act is a civil law that deals with sexual abuse, not rape.”
Dr Kiran Aggarwal, a paediatrician and a leading child rights activist, says, “I was the first person to raise this issue and have been continuously following it with ministries since 2005. I even wrote to Maneka Gandhi about it and received an acknowledgement from her office, but nothing happened after that. Child marriages and Exception 2 under Section 375 have led to a lot of human trafficking. I am not aware of the message of raising the marriageable age to 18 has gone down because there have been several incidents of girls from Hyderabad being married off by poor parents travelling through airports and no one questions them.”
Naazish Naqvi, professor of law at Jamia Hamdard, says, “It’s always the women who have suffered because men treat them as property. From birth, they are told that once they are married only their Arthi (corpse) should come back. But now marriages have started falling apart because women are becoming aware of their rights and economically independent.”
Not surprisingly, she notices the feudal and patriarchal streak even in teaching institutions. “I teach in an institution where children from various sections of society come. But I have noticed that they pay more attention to the male teachers and are inattentive in our classes.”
Even as late as the 20th century, under American common law, the legal doctrine upheld that upon marriage, a woman’s legal rights were subsumed by those of her husband. Jennifer Koshan, professor of law at Calgary University, Canada, argued in a paper that marriage meant implied consent, where a woman automatically confers consent to her husband. The other theory, that a woman is the property of her husband, renders the definition of marital rape oxymoronic. However, these views began to be challenged with the rise of the feminist movement. By the 1960s and ’70s, most Western countries had criminalised marital rape by explicitly defining it as a criminal offence.
It would be counterintuitive to say that men are not in a position to articulate a clear position due to the gender divide. One of the strongest advocates of criminalising marital rape in India is noted activist and lawyer Colin Gonsalves. Representing one of the organisations demanding the removal of Exception 2 before the bench of Justices Rajiv Shakhder and C. Hari Shankar, he replied to the frequently asked question as to how victims would prove their charge by saying it was not within the adjudicating capacity of a writ court to “conjure up myriad circumstances of coercion and consent”. He argued that this would depend on individual cases, which would be adjudicated by trial courts and constitutional courts should only be concerned with the constitutionality of the law.
In another attempt to delay a decision by the Delhi High Court, the Centre filed an affidavit on February 3, 2022, asking for the proceedings to be put on hold
Going further, he said that after the judicial exercise of the High Court, Parliament should be called upon to exercise its collective mind as to how, if at all, the generic definition of coercion and the generic definition of consent can be elaborated by making a law. As for the common apprehension regarding misuse of the law, Gonsalves referred to the judgment of the Supreme Court in Sushil Kumar Sharma vs Union of India to say that a law does not become unconstitutional merely because of the possibility of its misuse.
In another attempt to delay a decision by the Delhi High Court, the Centre filed an affidavit on February 3, 2022, asking for the proceedings to be put on hold, pending wider consultation.
The Centre’s affidavit reads, “In the most respectful submission of the Central government considering the social impact involved, the intimate family relations being the subject matter and this Hon’ble Court not having the privilege of having been fully familiarised with ground realities prevailing in different parts of the Society of this large, populous, and diverse country, taking a decision merely based on the arguments of a few lawyers may not serve the ends of justice.” The last we heard of this was in the Rajya Sabha debate on February 2, when CPI(M) MP Binoy Vishwam clarified the difference between Section 375 of the IPC and Section 5 of the Domestic Violence Act and wanted to know the government stand.
However, Irani, who is the current minister for women and child development, was evasive and came out with a routine statement, “To condemn every marriage in this country as a violent marriage and to condemn every man as a rapist is not advisable.” When a DMK MP, M.M. Andul, asked the minister if awareness programmes about marital rape should be organised in schools and colleges, she replied that if the MPs wanted they could organise such programmes under the District Development Coordination and Monitoring Committee (DISHA) guidelines of the Ministry of Rural Development, thus skirting the issue completely.
A colonial relic
The first country to criminalise marital rape was the Soviet Union in 1922 followed by the UK (1991) and the US (1993). The old laws keep getting challenged all over the world. In the UK, a section of the law exempting spouses from rape charges was struck down by the courts in a landmark decision in R vs R. Closer home, in countries that inherited the 1860 Indian Penal Code (including Singapore, India, Bangladesh and Sri Lanka), the law still states that forced intercourse within a marriage cannot be called rape. In Bangladesh and India, the law prohibits marital rape only if the wife is under a certain age. In Sri Lanka, the law prohibits spousal rape only if the spouses are legally separated, which is also the case in India.