Author: Lahari Gadhamsetty, Damodaram Sanjivayya National Law University.
Abstract
This article examines the Delhi High Court's divided decision and the reasons presented in the RIT Foundation case to highlight the evolving discourse in India around marital rape. It explores the challenges of criminalizing marital rape by discussing constitutional concepts, legislative intentions, and societal implications. The article emphasizes the delicate balance between individual rights and institutional systems by fusing legal reasoning with social considerations.
Keywords
Marital rape, RIT Foundation, socio-legal issues, Separation of Powers, discrimination, individual rights, legislative reform, judicial restraint, gender neutrality.
Introduction
The issue of marital rape in India is contentious, sensitive and heated, both in the society and in the legal system. There are different and varying viewpoints on the issue when it comes to criminalization. Exception 2 of Section 375, IPC is at the heart of this debate. The main issue in the RIT Foundation v. Union of India, 2022 case was whether the exception ought to be maintained or declared unlawful. In the split verdict, one judge upheld it owing to legislative authority, while the other deemed it violative of fundamental rights 14, 15 and 21 of the Constitution. The article goes into a critical analysis of the arguments on all sides and concludes. It highlights the limitations of the judiciary in creating new offences, the socio-legal complexity in marital relationships, and the need for legislative reform.
Literature Review
Marital rape is a contentious and delicate subject in India as also in many countries. It comes from the colonial doctrine of coverture. Though Rape is a crime under Section 375 of IPC, it exempts non-consensual sexual acts by a husband on his wife, under Exception 2. The constitutional validity of this exception was questioned by the petitioners in the RIT Foundation V. Union of India, 2022 case on the grounds of infringement of fundamental rights of married women.
The judgement in the case was delivered by 2 judges. In his decision, Justice Rajiv Shakdher emphasized that “the exception perpetuates gender inequality by denying married women equal legal protection and violating their bodily autonomy and dignity”. However, Justice C. Hari Shankar upheld the exception, arguing that creating a new crime requires legislative action and is outside the purview of the courts in line with the Doctrine of Separation of Powers.
The opponents of marital rape criminalization in India take the position that there are remedies already available in the Law such as Section 498 of IPC, Section 376B of IPC and also the Domestic Violence Act of 2005. They further argue that evidentiary problems arise in establishing non-consent in marital relationships. Finally, it is their position that criminalizing marital rape would undermine the institution of marriage and also encourage legal abuse through false charges.
Marital rape is recognized as a crime in certain nations such as the US and the UK, but there are measures in place to prevent abuse. Nepal has also implemented shorter reporting restrictions. These sophisticated international strategies highlight the necessity for India to balance gender justice with protections against abuse while customizing changes to its sociocultural conditions.
The study of the literature suggests that the matter is better dealt with by the legislature rather than requiring judicial intervention. This emphasizes the significance of stakeholder involvement and procedural protections to guarantee fairness and social acceptance.
LIMITATIONS
The study limits itself to the split verdict in the RIT Foundation v. Union of India case. It is also limited by a paucity of factual evidence and a limited legal focus. The absence of specific legislation in India also creates some legal ambiguities. Therefore, comparisons to international legislation are not acceptable.
The RIT Foundation Case: A Historic Legal Discussion
Marriage, according to most cultures in the world, is seen as a sacred institution and the very root of society. But, could the holiness associated with this institution be the reason to deny a woman her right to consent? In these modern times, questions about bodily autonomy of a woman and gender equality have arisen due to the Marital Rape Exception (MRE) under Section 375 of the IPC. These issues have come to light since the RIT Foundation Case and its split verdict, demanding the legislature, courts and society to reflect upon the predicaments around marital sexual violence.
The contentious debate started when the constitutionality of the MRE was challenged by the petitioners in the Delhi High Court on grounds that it violates Articles 14, 15 and 21 of the Constitution. The split decision by the Court showcased the contrast between giving effect to individual rights of bodily autonomy and the legislature’s right to enact laws. Justice C. Hari Shankar upheld the prerogative of the legislature and warned against judicial overreach in issues of complicated social policy. He is of the view that striking down the exception creates a new offence, which is outside the purview of the judiciary. On the other hand, Justice Rajiv Shakdher considered the exception to be unconstitutional and against gender equality. He deemed that the exception discriminates against married women undermining their fundamental rights.
The broad socio-legal conundrum is- Does criminalizing marital rape upend marriage as an institution or keeping the exception lead to patriarchy and gender equality?
IPC Section 375
“Rape is defined in the Indian Penal Code of 1860, as sexual contact without a woman's agreement under certain conditions, such as against her will, compulsion, intoxication, or with minors under the age of eighteen, according to Section 375. However, the Marital Rape Exception (MRE), which is Exception 2 to Section 375, prevents non-consensual sexual relations between a husband and his wife (who is over 15) from being considered rape.”
PERSPECTIVE OF THE PETITIONERS
It is the position of the petitioners that since the MRE is based on the colonial British era Doctrine of Coverture, it presumes irrevocable consent inside marriage. It creates an unreasonable classification between married and unmarried women, violating Article 14 of the Constitution. According to the petitioner, it denies equal protection of Law to married women and is perpetuating gender discrimination. They further argue that it is against Articles 15 and 21 of the Constitution by infringing upon a woman’s right to her bodily autonomy, dignity and consent. They also cited international laws where marital rape has been made an offence and relied on global gender justice norms.
POSITION OF THE INTERVENORS AND THE EVOLVING DISCOURSE
The Men Welfare Trust (MWT), the implied defendant intervenor, was represented by advocate J. Sai Deepak, who made a thorough and nuanced defence of the MRE. His arguments placed a strong emphasis on the necessity of legislative authority, judicial restraint, and a fair view of marriage. They also strongly concur with the Government's, and the other defendants', arguments.
Separation of Powers:
The court invalidated Section 66A of the IT Act and Section 377 of the IPC, respectively, and decriminalized those offenses in the cases of Shreya Singhal v. Union of India and Navtej Singh Johar v. Union of India. It declared them unconstitutional.
Similarly, in the case of Shayara Bano v. Union of India, the court declared Triple Talaq unconstitutional but left the decision to impose criminal penalties on the legislature.
However, the situation here is very different—in fact, the reverse. It entails overturning the exception to Section 375 of the IPC, which does not broaden the definition of the crime as the petitioners argued; instead, it establishes a new crime that requires legislative action beyond the purview of the courts.
India's constitutional foundation, the Doctrine of Separation of Powers, would be violated if the judiciary intervened to overturn MRE. The legislature alone has the authority to create new crimes since it is institutionally capable of taking social, cultural, and policy factors into account. Striking down MRE would necessitate extensive consultation, balancing legal, cultural, and social considerations, which is beyond the court's remit. However, he noted that, unlike the legislature, judges do not have the means to interact with stakeholders or take into consideration the effects on society. Courts cannot enact laws on complicated policy issues, such as defining marital sexual offenses, because doing so would circumvent democratic procedures and public involvement. It is mentioned that only the legislature can supply the necessary forums, procedures, evidentiary standards, and protections.
Existing legal remedies: Section 498A IPC (cruelty against a wife) and other measures already address non-consensual sexual violence within marriage.
2. Section 376B of the Indian Penal Code, which covers rape by a divorced husband and de facto separation, in which the two spouses are considered to be living apart even though they share a home.
3. The Domestic Violence Act of 2005, defines sexual abuse to include non-consensual sexual conduct within marriage and provides remedies. Unlike the popular perception that the DV Act provides only civil remedies, Section 19(2) of the Act empowers the Magistrate "to pass any other direction which he may deem reasonably necessary to protect or provide for the safety of the aggrieved person". As a matter of practice, the magistrates routinely issue directions for the registration of FIR under Sections 498A, 376B and 377 of the IPC. Therefore, to claim that there is an absence of criminal remedies concerning non-consensual sex is incorrect. Sufficiency and adequacy of remedies fall within the ken of the legislature.
The difference in punishment to be accorded for spousal sexual violence and other safeguards such as limitation is a conscious legislative call taken having regard to the special status of marital relationships under the IPC and D.V. Act. A closer analysis of MRE and Section 376B reveals the legislature's attempt to classify spousal sexual abuse as a species separate from rape as defined by Section 375. The sui generic handling of sexual offences committed in married relationships draws attention to the disparities in the definition of an offence and does not include the petitioners' contentions about the identity of the perpetrator. Therefore, MRE does not suggest that husbands have unrestricted rights; rather, the legislation has taken a balanced stance.
Deliberate Legislative retention of MRE: In spite of multiple reports that recommend criminalizing marital rape, such as the 172nd Report of the Law Commission of India on Review of Rape Laws, the 19th Report of the Lok Sabha Committee on Empowerment of Women (2012-2013), the 167th Report of the Parliamentary Standing Committee of Home Affairs on the Criminal Law (Amendment) Bill of 2012, and the Justice Verma Committee Report, Parliament has purposefully decided against doing so. The presumption of constitutionality applies to MRE, which has been retained post-independence following multiple legislative reviews. The MRE shouldn't be interpreted in light of patriarchy's colonial baggage because the law has been Indianized through several modifications, and its continued existence is additional evidence of its legitimacy.
The intricacy of marital consent and evidentiary difficulties: Expectations of intimacy and conjugal rights are part of marriage as a social institution. The difference between "will" and "consent" in marriages was the subject of a crucial debate. Intimacy in marriage frequently entails subtleties, and consent might not always coincide with one's spouse's wishes. Even in cases where "will" is lacking because of social, emotional, or familial responsibilities, spouses may have sex out of "consent." The institution of marriage would be undermined if every incidence of perceived non-consent was treated as rape. This would have unfeasible repercussions, such as the need to record written consent for intimacy or involve third-party witnesses, which is impossible given the personal nature of the relationship. This may lead to misuse, false allegations, and irreparable harm to marital harmony.
There are also evidentiary challenges in proving non-consent within the intimate confines of marriage, cautioning against misuse of law and the risk of false accusations, which could undermine marital harmony. Furthermore, Section 114 of the Indian Evidence Act of 1872, which requires the court to accept the woman's word as definitive evidence of permission, has a significant impact on the rights of the husband in a marriage since it places the onus of proving his innocence on him and leaves room for abuse.
Reasonable Classification under Article 14: The special responsibilities of marriage, such as conjugal expectations, provide the foundation for the division between married and single women. Section 376B IPC, which acknowledges the loss of marital rights after separation and makes sexual violence by separated husbands illegal, further reflects this divide.
The court only read down MRE for spouses who were between the ages of 15 and 18 in the Independent Thought v. Union of India case, aligning it with the POCSO Act. This limited intervention cannot be used in adult marital relationships because it was required due to a contradiction with statutory laws.
The institution of marriage could be undermined by criminalizing such non-consensual spousal sexual violence, which is a valid state concern with significant societal repercussions. Given the abuse of Section 498A IPC, care must be taken to avoid legal abuse of the law against one particular gender. Unlike India, the global norms take a gender-neutral position on the issue with procedural checks to prevent any kind of misuse of the law.
INTERNATIONAL PERSPECTIVE
The International stance regarding the subject was also discussed in the case by both sides. But keeping in mind India’s unique social and cultural fabric and also the difference in opinion on the matter (the split verdict), it is essential to note that there are legitimate meeting grounds to adopt a tailored approach. The presence of procedural safeguards that were put in by the legislatures of different nations in their spousal sexual violence laws cannot be ignored.
1. United Kingdom:
In the UK Sexual Offences Act of 2003, marital rape is criminalized but not without placing significant procedural safeguards. According to the Act, spousal relationships are treated differently in such contexts, owing to abuse of positions of trust. Moreover, the act gives the accused the right to take a defence of ‘reasonable belief’ regarding consent.
2. United States:
When it comes to the US, there is no single law on the subject; laws vary across states. A few states like Maryland and Connecticut consider marriage as an exception or provide specific spousal defences. While other states include safeguards in their laws- evidentiary standards, shorter reporting windows, etc to balance between misuse and the protection for victims.
3. Nepal:
Marital rape is criminalized in Nepal but with a clause that the offence has to be reported in 35 days, to prevent false allegations and ensure timely justice.
As stated earlier, international legislation on the subject is very nuanced and balanced, taking into consideration the importance of individual dignity but at the same time not compromising on societal concerns. The offence is acknowledged as well as the concerns on how to deal with it. Global trends in Laws also show the advocacy for a gender-neutral approach in law-making, by ensuring that both men and women have equal protection. India must also take an informed legislative stance, with similar considerations rather than judicial intervention.
THE WAY FORWARD: A LEGISLATIVE SOLUTION
Despite the sensitive and complex nature of the problem, it is to be noted that spousal sexual violence must be acknowledged and addressed but it is better done by the legislature rather than the judiciary.
Coming to the Government’s stance on the subject, an affidavit was submitted to the Supreme Court, by the Ministry of Home Affairs in response to petitions contesting the constitutionality of Exception 2 to Section 375 of IPC. The intricacy of interpreting rape laws in marriages was emphasized in the affidavit. The government claimed that although a husband does not have the "fundamental right" to violate his wife's consent, applying the severe criminal penalties for rape in matrimonial relationships would be "excessively harsh" and "disproportionate," in addition to having "far-reaching socio-legal implications" on the Indian marriage institution. Although consent is fundamental, the government said that violations of this consent in a marriage should be punished with less harsh measures than the "ghastly" laws that are applied to situations involving strangers.
According to the central government, a woman's consent is not nullified by marriage and should be punished when it is violated. The repercussions of such transgressions within a marriage, however, are different from those outside of it.To safeguard consent in marriage, Parliament has established several remedies, including measures pertaining to criminal law. It argued that the Protection of Women from Domestic Violence Act, 2005, along with Sections 354, 354A, 354B, and 498A of the Indian Penal Code, guarantee severe criminal penalties for such offences. The government argues that these provisions exemplify the "delicate balance" and "sufficiently adequate remedy" that Parliament has attempted to uphold.
While acknowledging that both spouses have the right to privacy and dignity, the affidavit also stated that bringing up Section 375/376 of the IPC (rape accusations) in a matrimonial context "would necessarily entail consequences" that do not accurately represent the complex realities of married life. Because extending the harsh designation of "rape" to marital situations could potentially destabilize the institution itself, the affidavit contended that Parliament has appropriately balanced these rights by introducing alternative prohibitions.
According to the affidavit, the government's position is that marital sexual violence is a different kind of violence from "rape." This is due to the two individuals' familiarity with one another and the institution of marriage being considered sacrosanct. The government argues that the aforementioned remedies already make the offence illegal, hence there is no need to overturn the exception. Also, it makes the case that the penalty for the crime cannot be as severe as that for "rape."
CONCLUSION AND RECOMMENDATIONS
In conclusion, tackling the issue of non-consensual marital sexual abuse is unquestionably essential to promoting women's autonomy and dignity. Because of constitutional constraints, this significant reform necessitates thorough parliamentary consideration rather than hurried judicial interventions.
However, the legislature must first decide whether the crime should be called "rape" or an alternate phrase to be coined because the Indian Penal Code makes no mention of marital rape. Whether the remedies provided by the current law are suitable or sufficient should also be taken into consideration, as is the criticism of the sufficiency of punishment for the offence. Otherwise, should the legislature pass a new legislation specifically targeting these offences? The legislature has the authority to make decisions on all of these issues. While the court cannot influence policy decisions, it can encourage lawmakers and nudge them to expedite the process.
Gender neutral approach to law is necessary, though, to guarantee that everyone is given equal legal protection, regardless of gender. No gender can be given preferential treatment under the law. Gender inclusivity is key to a just and fair society. Therefore, legal abuse and false charges could be avoided by setting up procedural safeguards. By putting in place checks and balances, the possibility of abuse can be reduced without compromising justice to the actual victims.
A thorough stakeholder consultation is of paramount importance if both individual rights and societal values are to be balanced. A comprehensive view of the problem can be obtained by interacting with a wide range of stakeholders, state governments, and subject matter experts such as legal professionals, gender studies specialists, human rights advocates, and representatives from different communities. Empirical evidence/data, sociological realities, and extensive consultations must all be considered while implementing legislative reform. By taking an inclusive approach, the law is guaranteed to respect individual rights while reflecting societal needs and values.
REFERENCES
1. RIT Foundation v. Union of India, 2022
2. Indian Penal Code, 1860
3. Written Submissions of the Men Welfare Trust in the RIT Foundation Case PIL of 2022
https://www.menwelfare.in/resources/submissions/spousal-rape-pil-2017/
4. https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/
5. Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of marital rape in India: Understanding its constitutional, cultural and legal impact, NUJS Law Review.
https://docs.manupatra.in/newsline/articles/Upload/8787A55C-D93F-4589-8A68-A9A032AFAF0E.pdf
6. Sunil Sudhakar Varnekar and Dr. Upankar Chutia, Criminalizing marital rape: An Indian perspective.
https://www.allresearchjournal.com/archives/2024/vol10issue6/PartC/10-6-66-556.pdf
8. https://thebetterindia.com/134673/survey-nfhs-marital-rape-india/
10. Avinash S Nair, Marital Rape: An Examination of Legal and Social Perspectives in India, https://www.ijfmr.com/papers/2023/5/7622.pdf
11. Prof.Kshitij Naikade and Dr.Garima Pal, Issues & Challenges Related To Marital Rape in India, https://www.ijhssi.org/papers/vol7(4)/Version-3/I0704035869.pdf
13. Sanjana Saxena, Marital Rape in India: A Conceptual and Legal Analysis, https://www.academia.edu/30482866/Marital_Rape_in_India_A_Conceptual_and_Legal_Analysis
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