MARITAL RAPE: IS "JUSTICE" A MIRAGE IN MARRIAGE IN INDIA?

Author: Ritika Solanki, Maharaja Surajmal Institute.

ABSTRACT

IPC (Indian Penal Code) 18604 has been replaced by BNS (Bhartiya Nyaya Sanhita) 20245 but what is not replaced is the concept of rape and consent in India, both the criminal laws does not criminalise marital rape as rape in India making India one of the 52 countries which does not criminalises marital rape as rape. This paper examines the need for reforms in rape laws for women. Broadly it also discusses the concept of consent which now deems to be a mirage in marriage as stated in the topic of the paper. Also, it aims to address the atrocities faced by women in a state where women are treated as goddesses but still does not get justice.

KEYWORDS

Marital rape, consent, India, women, criminalise, reform.

Literature Review

This paper examines the concept of marital rape in India and highlights the need of reform in laws related to rape in IPC and BNS which delivers moral justice as rape is also a violation of article 21 right to life and personal liberty. This paper studies the recent judgement of Chhattisgarh high court in the case of “state of Chhattisgarh vs. Gorakhnath Sharma” and also criticises the judgment of the case “Independent thought v. Union of India”. This paper poses a critical point of view to the existing laws and highlights the need for reform in the laws. It also discusses the confusion between courts and their judgements in the cases of marital rape and other inconsistencies with the law.

Methodology

This paper opts a qualitative research technique where it examines case laws, judgements and precedents set by the court in the cases like “state of Chhattisgarh vs. Gorakhnath Sharma”, “Independent thought v. Union of India”. This is non-doctrinal research as it also covers socio legal impact of marital rape and its inconsistent laws in the society and its repercussions.

Objective

Examine the existing loopholes for rape laws in India
Overviewing the need for criminalisation of marital rape
Describe the atrocities faced by the individuals due to legal loopholes
Reviewing the confusion between courts in cases of marital rape

Introduction

Marital rape remains one of the most underdressed crimes where a woman loses her fundamental rights and cannot even appeal to the court as it is not even a crime. This comes from the roots of patriarchy that are so deep rooted in the minds of the society where the women are treated as property of men and are bound to have sex whether natural or unnatural at the willingness of her husband, where she has no right of consent.

India is amongst 52 countries in the world which does not criminalises marital rape. The lack of recognition of marital rape as a crime makes society questions about a female’s autonomy over her body and hands it over to the hands of husbands leaving the women tortured for rest of her life.

A recent judgement of Chhattisgarh high court has sparked debate over the media as it stated that the consent of women in marriage does not matter and a man having forceful sex with his wife is not a crime. These are the judgments in a democratic society where equality and justice are promised by the and also taken away by the law in the guise of marriage.

Legal framework

In the Indian law rape is defines under section 375 in IPC as “sexual intercourse with a woman against her will or without her consent. It also includes sexual intercourse when the woman's consent is obtained by force or fear” and excludes the non-consensual intercourse between a man and his wife who is not under 15 years of age. Same is the case in BNS where a rape is defined under section 63 but excludes non consensual intercourse between husband and wife.

The Supreme Court in the case of independent thought v. Union of India2 struck down this exception raising the age from 15 to 18 only for minors but excluded adult women. In contrast to the precedent set by the supreme court in this case Chhattisgarh high court in its recent judgment once again stated the age of exception as 15, creating further confusion in the situation.

The first question is raised when the court recognises the marriage of a minor even when the legal age of marriage under prohibition of child marriage act, 2006 is 18 years of age. This creates a gap between marriage laws and rape laws that if a woman is married as a minor court sometimes may or may not recognise the marriage. These small steps of ignorance and leniency leads to heinous crimes like rape, domestic violence, child marriage etc. Courts must act responsibly and abide by the laws made. If the courts leave loopholes and inconsistencies with the procedure and laws then what precedents shall be set for the future generations?

Contradicting judgements

Chhattisgarh high court-
Chhattisgarh high court in its recent judgement of the case state of Chhattisgarh vs. Gorakhnath Sharma has ruled that if a husband have non-consensual intercourse with his wife who is above 15 years years of age will not be amounted as rape and the consent of wife in marriage does not matter. This contradicts with the precedent set by supreme court in 2016 in the case of independent thought v. Union of India where the age for rape in marriage was increased from 15 to 18. Also, this describes the patriarchal mindset of the society where the consent of women does not matter and her trauma is ignored as she is deemed to be the property of his husband. The case was in the limelight recently as the wife passed away due to injuries she said she acquired from the unnatural sex done by her husband. The man was acquitted for as it did not amount to rape in the eyes of court and the lack of evidences to prove it a culpable homicide.

Bombay HC’s 2023 verdict on minor wives

In November 2023 Bombay high court stated that even consensual sex with a minor wife is rape supporting its statement by saying that the age of consent and marriage is 18 so whether married or unmarried consensual or non-consensual sex with minor girls amount to rape. Nagpur bench upheld a 10-year sentence to a man accused of rape with his minor wife.

Madhya Pradesh high court

Madhya Pradesh high court in a case quashed a FIR lodged by a married woman against her husband accused of unnatural sex under the section 377(unnatural sex) of IPC. The court affirmed that a consent of a women in a marriage is irrelevant and marital rape is not an offence under the Indian law. The bench also added that certain sexual acts considered unnatural under IPC if done by a husband on a woman above 15 years of age is not rape.

Delhi high court split verdict (2022)

In a case one judge ruled that martial rape should be criminalised other one was not in the favour of the same, the case was then referred to supreme court and the decision is yet to be made

Other loopholes and contradictions

Inconsistency with the marriage laws: The court’s judgements stated above are inconsistent with the marriage laws of India as under Hindu marriage act of 1995 and under prohibition of child marriage act, 2006 legal age of women getting married is 18. On the contrary , courts still sometimes consider minor’s marriage to be valid. Adding to the point after recognition of marriage another aspect comes is the age of consent i.e. 18 years as per the Indian law but still in many judgements it has been ruled that consensual and non-consensual sex with minors does not amount to rape. Courts must follow the set precedents and shall also consider a woman’s autonomy over her body.
Inconsistency with the domestic violence laws: Abuse from a husband or his family against wife amounts to crime but non-consensual sex does not. This raises a dilemma whether the law really wants to protect women against abuse or just have made the laws for the sake of making it.
Inconsistency with the fundamental rights: Not criminalising marital rape questions the on-ground application of article 21 and article 14 of the constitution i.e. right to life and personal liberty and right to equality.

According to Indian law any person above 18 years of age has a voting right and 18 is also an age of consent, the age from which one’s consent is valid. Now the laws state that a woman above 18 years of age has a voting right and has a right of consent in all the other arenas but not in the case of marriage. As the does not discriminate on the basis of caste, creed, colour gender then why is there a difference between consent of a Mr., Ms., or Mrs. This not only creates a negative image in the eyes of citizens but also tarnishes the state’s image internationally for its patriarchal mindset. This depicts the inconsistency with the article 14 of the Indian constitution.

In the case of Bodhisattwa Gautam v. Subhra Chakraborty the court stated that rape is not just a crime but an act of hostility which aims to demean the women and makes them feel inferior. The law must know that every individual has a right to dignity whether married or unmarried. This depicts the inconsistency with the article 21 of the Indian constitution.

Concept of consent: In the case of Vishaka v. state of Rajasthan (1997) and sakshi v. the union of India (2004) the supreme court has repeatedly emphasized the importance of consent. Yet again it is only limited to the unmarried or married victims of sexual assault out of the marriage. Section 367B criminalises the non-consensual sexual intercourse during judicial separation but not when the couple is living together, this raises the question that why does the court believe that a women cannot have her consent when she lives with her husband

This inconsistency not only tries to suppress women, makes us question the laws of the state and also makes us hard to believe that the judiciary believes in the concept of social, moral and economic justice but contradicts itself by setting illogical precedents and laws.

Why?

The dilemma arises why the courts still believe that the consent of a woman in marriage is irrelevant. And the answer is “patriarchy”. People still believe that women are the property of their husbands. It is also argued that criminalisation of marital rape as a crime would disrupt the sanctity of the marriage and would lead to issues further. These gender-biased discriminations are often disguised in the face of societal norms, traditional values, cultural values, perseveration and traditions and cultures. No culture oppresses a woman's integrity and autonomy; it is the addition of patriarchy to cultures which not only oppresses women but also men.

Patriarchs argue that criminalisation of marital rape would be westernisation of Indian marriages which will disrupt a family’s stability. These now need to understand that human rights are universal and no culture or law shall favour oppression of any section of the society.

Impact of marital rape on victims

Women who are or have been a victim of marital rape suffers equivalent to the victims of a rape which is not marital. The potential issues can psychological that is the victims suffers both mental and physical trauma she may have bruises, wounds and even death or suicidal tendencies, PSTD, depression etc. Women being the victims are mostly economically or any other ways dependent on their husbands fearing that they have no one to support them. In this case law should intervene and provide protection to such women. Women even fear to speak out as they face social stigma by society. The law needs to understand that the suffering faced by a man or woman married or unmarried does not differentiate the pain then why does the law differentiate the justice.

Recommended reforms

The first and foremost reform is criminalising marital rape by amending section 375 of IPC 4and section 63 of BNS5. This would be a very clear solution to the social issues faced by married women in marriage.
Defining consent clearly. Law must redefine consent to avoid confusions in cases.
Sensitisation of issue by awareness campaigns and programmes: Government shall make people aware that marital rape is not normal and should not be practised.
Educating judiciary: Law must not waste its precious seats of judges to people who do not know how to practice equality in the society.

CONCLUSION

The exclusion of criminalisation of marital rape not only contradicts the supreme law the constitution but also undervalues the image of an individual in the eyes of society indirectly saying that she has not right to make decisions for her body if she is married to a man which clearly is gender-based discrimination.

The people justifying marital rape in the face of culture are just egoists who wants to prove themselves as superior by making the other inferior, this is not culture or tradition this is just simply patriarchy.

India as a developing nation strives to uphold integrity and justice must ensure that all forms of violence to all individuals must be treated equally regardless of their gender and marriage status which would be the first step towards women empowerment not the running campaigns.