A High Court bench is hearing a batch of petitions that argues against the ‘marital rape’ exception in the Indian Penal Code. The discussion has put a spotlight on the issue of marital rape, especially the arguments for and against the criminalisation of marital rape. Rahul Gandhi recently tweeted his comments on the issue, saying ‘consent, as a concept, is underrated’. Supporting the criminalisation of marital rape, Rahul Gandhi said that to ensure the safety of women, consent has to be “foregrounded”.
Consent is amongst the most underrated concepts in our society.
— Rahul Gandhi (@RahulGandhi) January 16, 2022
It has to be foregrounded to ensure safety for women. #MaritalRape
While Rahul Gandhi has taken to Twitter to support the criminalisation of marital rape, in 2013, when the Congress government was in power, the recommendation of the JS Verma panel was summarily rejected by the Manmohan Singh government. The Justice Verma commission had suggested that marital rape should be made an offence.
In 2013, the Congress government had said that criminalising marital rape would weaken traditional family values in India, and that marriage presumes consent. They had also argued that the burden of proof would almost be impossible to meet in the case of marital rape.
The BJP government, on the other hand, has told the High Court that marital rape cannot be criminalised until talks with all stakeholders end. The Modi government has said that the talks with stakeholders would lead to comprehensive amendments and not piecemeal changes. It further said that even the petitioners can give suggestions to the committee overseeing the talks and those suggestions would be considered.
The affidavit, filed on Thursday, stated that the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, cannot be struck down at the instance of the petitioner alone. “Principles of natural justice require a larger hearing of all stakeholders,” emphasised the government.
The Delhi government too opposed the criminalisation of marital rape saying that the court cannot create new laws and that the criminalisation of marital rape would be bad in law, saying that the woman has several other legal provisions that she can take the help of if she is being abused in marriage.
Overall, every government has been circumspect in the issue of criminalisation of marital rape. The issue is a nuanced one and not as cut and dry and “activists” want the society to believe.
What is the background
For the better part of the last century, the concept of marital rape has been missing in narratives of most nations. Some commentators in India try to pin the blame for the lack of marital rape law in India on the usual “Indian regressive culture”, however most nations criminalized Martial Rape only after the UN’s “Declaration on the Elimination of Violence Against Women” in 1993.
It was actually Sir Matthew Hale, Chief Justice of England, who in his book ‘History of the Pleas of the Crown (1736)’ proclaimed – “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract” – thus negating the concept of marital rape altogether. Perhaps he was directly borrowing from traditional Catholic preaching that doesn’t accept this concept. His thoughts on the subject continued to form the basis of English law till 1993.
India, having borrowed heavily form British Era laws, of course, also inherits the flaws; one of them being the case of Marital Rape law.
What do the current laws say?
Section 375 of the IPC deals with rape and it criminalizes the act, but it makes an “exception”. The exception says “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
You might wonder why the law says the wife being under 15 years of age, while the legal age of marriage is 18 years. It is because, under the Muslim personal law, a woman can marry when she reaches 15 years of age.
However, on December 15, the Union Cabinet approved a proposal to raise the legal age of marriage of women from 18 years to 21 years. The government had then clarified to OpIndia that the change in marital age would be extended to all personal laws, including Muslims and Christian personal laws. In that case, logic would be extended to the Section 375 exception as well. Once that happens, this law also would logically say, “Sexual intercourse by a man with his own wife, the wife not being under twenty-one years of age, is not rape.”
This exception in the IPC section 375 is the reason why the alleged instances of marital rape are not treated as criminal cases.
What are the arguments that the Modi government made in the court
The Modi government has said that there is a need to overhaul the IPC instead of making piecemeal changes to criminalise marital rape. Reportedly, it relied on parliamentary standing committee reports in 2008 and 2010 to make this argument.
The government also cited the 172nd report of the Law Commission of India on “Review of Rape Laws” in March 2000 that said it would not recommend the deletion of the exception clause in Section 375 “since that may amount to excessive interference with the marital relationship”.
The affidavit by the government, however, does not refer to the JS Verma recommendations of 2013 that the Congress government too rejected in terms of criminalisation of marital rape.
What are the arguments being made to criminalise marital rape
Many argue that such issues related to married couples are covered in the “Protection of Women from Domestic Violence Act 2005” and thus there is no need for a special law to cover marital rapes or to delete that exception part in the IPC section 375.
The Domestic Violence Act can be argued to cover the offense of marital rape because “sexual abuse” is defined as one of the act or conducts that constitutes “domestic violence”.
However, there are two problems with this act, due to which it is considered inadequate to deal with cases of marital rapes:
1. While the term “sexual abuse” is mentioned, the act doesn’t explicitly define “rape” as is defined in the section 375 of the IPC.
2. The Domestic Violence act has been deemed as a “civil law” by the courts and thus the accused can get away without any jail term.
Therefore, there is certainly a void where husbands who rape their wives can get away with it without any jail term. As the Delhi government responded, divorce as an option is certainly available to women, however, it is not nearly adequate when the issue of rape is concerned. Further, a civil law by definition falls short and cannot deal adequately with a heinous issue like rape, even within marriage. The current law has no provision if a woman wants to file a criminal case against her husband if she is being raped by her husband.
The basic assumptions that the exception of marital rape are based on are as follows:
1. It is an assumption that when a couple gets married, the woman gives consent in perpetuity to her husband. The assumption also is that the woman cannot simply retract the consent that she gave her husband at the time or marriage. As explained earlier, this concept was based on colonial-era laws that to a large extent, our laws are based on, thereby importing the flaws of the colonial age as well.
2. The other logic is that there is a reasonable expectation of sex in a marriage and therefore, the wife is obligated to fulfil that expectation of the husband. While intercourse is an important part of marriage and both parties cannot withhold it from their partners, the assumption that there is consent in perpetuity and therefore, the woman can even be forced to have intercourse makes this assumption problematic for those women who are in an abusive marriage where rape is a tool of torture used by the husband.
What are the arguments for not criminalising marital rape or the pitfalls that the law needs to take care of
There are several legitimate concerns that have been voiced that are yet to be answered fully by the activists rallying for the criminalisation of marital rape.
Misuse of the law
Misuse of the law is a big reason why several individuals, jurists and even men’s rights activists have raised alarm over the criminalisation of marital rape. The statistics cited to argue against the criminalisation of marital rape are those of the misuse of 498A, the law that relates to dowry cases. According to some activists, as huge as 85% of dowry cases turn out to be false and India cannot deal with another failed catastrophic law that will amount to “legal terrorism”. Many men’s rights activists are especially wary of criminalizing marital rape, as they feel that it will be misused even more than the anti-dowry law.
Deepika Narayan, a men’s right activist, wrote an article in 2020 citing the misuse of 498A. She wrote:
A total of 111,549 cases were registered under 498A in 2020. Of these, 5,520 were closed by Police citing as false and overall 16151 cases were closed by police either because they were false or there was a mistake of fact or law or it was a civil dispute etc. That is 14.4% of cases were closed by police for not finding merit in the case. 96,497 men, 23,809 women were arrested under 498A last year making total arrests under this section 120,306.
18,967 cases were tried in courts of which 14,340 led to acquittal and 3,425 led to a conviction. 498A cases pending trial at the end of 2020 are 651,404 with a pendency percentage of 96.2%.
There are several cases where the husbands have even committed suicide after being accused in 498A cases where they have said that it was only after the relationship went south when false allegations were hurled, leading to the judicial harassment of the family. The argument is that if marital rape is criminalised, it would be another law that disgruntled wives can use falsely. While this does not dismiss the fact that marital rape does happen and there are real victims out there, the argument is that this law would be used against innocent men far more than being used to get justice for real victims.
2. Burden of proof
The burden of proof is a hugely complex issue that has prevented marital rape to be criminalised. In the case of marital rape, one has to consider that intercourse is a part of any marriage. Now, if marital rape itself is criminalised, the question remains who would the burden of proof be on and what would that burden be. For example, if the burden is on the woman, then the argument remains that mere allegations, like in the case of dowry violence, can ruin the lives of not just the husband but the entire family. If the burden of proof is on the husband, then the fact remains that the husband would have to prove a negative, which is in itself, a problematic concept.
Many have argued that once a woman alleges that she has been raped in a marriage, there would hardly be any evidence, like CCTV footage etc, to prove that the woman has or has not been raped and therefore, the burden of proof would be a difficult concept to apply in these cases.
3. The breakdown of the institution of marriage
In a 2010 paper (‘Rape Within Marriage in India: Revisited’), Prof (Dr) K I Vibhute observed that the “preservation of the institution of the family” is what mainly allows the provision to gain legitimacy. “… the preservation of the family institution by ruling out the possibility of false, fabricated and motivated complaints of ‘rape’ by ‘wife’ against her ‘husband’ and the pragmatic procedural difficulties that might arise in such a legal proceeding”.
Therefore, one of the main arguments to not criminalise marital rape is that it would lead to the breakdown of the institution of marriage with wives falsely accusing husbands. The argument also extends to both parties in a relationship trying to be “legally careful” in the normal course of marriage should such allegations come up.
5. Gender neutrality
Arguments to make the definition of ‘rape’ gender-neutral has been put forward on many occasions, and the same argument is put forward in the case of marital rapes too. Even if the exception of IPC section 375 is removed or criminal provisions are added to the Domestic Violence act, husbands will not be able to use those, many argue.
Some of the above issues could have easy solutions and some could indeed be complex e.g. perhaps, in the absence of clear proof of rape, the law can give one benefit of the doubt to a husband who has never been previously reported for any cases of violence or abuse to not turn a rapist suddenly.
However, it’s imperative that the above issues are also discussed when marital rape is discussed.
So what is the way forward?
Much like every other civilized nation that swallowed the bitter pill, India too will have to criminalize marital rape. The House of Lords in 1991 overturned the exception to marital rape and several other countries like Australia, South Africa etc have done it too.
So the question really is of “when” and “how” and in “what form”. The way forward is to hold more public consultation, get more hard data and create a roadmap for the criminalisation of marital rape.
The solution is not to sweep it under the carpet but to wake up to the fact that the concept of marital rape in itself is not totally outlandish. Unfortunately, the current attempts by the political class – as is evident by the acts of both the UPA and NDA governments – appear to be ignoring the issue rather than taking it heads on.
