The author of this post is Ms. Divyashri Puri, Advocate, Bar Council of India; Judicial Law Clerk-cum-Research at Chambers of Justice Ajay Tewari, High Court of Punjab and Haryana.
Introduction
While India is slated to emerge as a US$ 5 trillion economy, about 75% of her married women are subjected to the diabolic act of marital-rape. Regrettably, India stands amongst a list of 36 nations that are yet to condemn this felony. Rape as an offence, whether by a stranger or by the custodian of one’s trust, pulverizes the very soul of the victim apart from violating the primary right to consent, bodily autonomy and integrity. Therefore, notwithstanding the victim’s relationship with the perpetrator, we ought to unequivocally penalise marital-rape as a crime, and amend the very system that currently accords a defence to such rapists under the garb of a marital union.
The Indian Penal Code, in its provisions on Rape under Section 375, cuts for an exception to marital-rape by exempting from its definition, ‘unwilling sexual intercourse between husband and wife, wife being above 15 years.
This exoneration is supported with stiff socio-political dissent against its criminalization which farcically reasons that, such rape is a matter of marital privacy with unwarranted state interference; that its criminalization would destabilize the marital institution; and that a “marriage contract” implies continuing consent for sexual cohabitation. Such ideologies are rooted in misogynistic theories of propriety—assuming spousal agency as property—and unification—assuming a joint legal existence upon marriage. Furthermore, the general critique levied that women could misuse such a law is not cogent since the squandering of laws by the notorious is a universally inevitable legislative risk.
The predicament of Indian women only worsens with the particular factors of arranged marriages, lack of financial independence, the stigma associated with divorce, potential burden of single parenting, religious narrative of marriage being “sacred”, and heightened ignorance of rights specifically in rural or semi-urban areas. Moreover, the continual hardship of being tied in an emotional bond like that of marriage, leaves the victim woefully helpless.
Without adequate criminal protection, sadly the victims of marital-rape can only beseech justice under the garb of S.498-A of the IPC, which provides penalties for a husband or his relatives subjecting a woman to cruelty, entailing a maximum of three years imprisonment or under the pretext of The Protection of Women from Domestic Violence Act [PWDVA] 2006, which recognizes sexual abuse of this nature under the ambit of the domestic violence definition. Despite a protracted legal battle, the court effectuates the options of a compromise or mutual divorce, letting the rapist off the hook while justice remains elusive. [U1]
Against this backdrop, penalizing marital-rape with a structured route to prosecution becomes an overriding exigency. This can be achieved by univocal amendments to the current statutory framework; as follows: (i) defining rape as a clear ground for immediate divorce rather than a convoluted separation; (ii) highlighting, under rape laws, that marriage is not a rape defence; (iii) specifying, in the section that provides for consent, that marriage cannot be deemed as implied consent and the provisions of consent apply squarely even between a married couple. Additionally, the sentencing policy employed in regular rape cases must also be applied to marital-rape.
Undoubtedly, judiciaries usually find corroborating sexual offenses arduous. To tackle the complexity of proving marital-rape, adequate credence must be given to the unique history of matrimonial discord and violence, in addition to rape-kit results, the testimony of family members, and the electronic record of the husband’s admission. For this, a specially deployed forensic team would aid in hastening the wheels of evidence-gathering. The practical success of the recent laws on dowry demonstrates that, where victims are near their offenders, the burden of proof must rest with the accused and there be a presumption in favour of the victim. This would make tremendous strides in promoting the reporting of such cases.
A regulation must introduce two important linchpins for holistic implementation of such penal provisions: (i) a special police handbook focusing on sensitivity training in dealing with such crimes and detailed procedure for evidence-gathering and witness testimony; and (ii) providing for victim follow-ups by a local social-worker task-force considering cultural peculiarities. These have found success in the United States and would be crucial for the Indian order.
Additionally, providing outreach via sensitization and empowerment programs, setting up dedicated 24/7 helplines, and improved channelizing of free legal-aid clinics in ensuring effective representation; would support in combatting marital-rape. To assure the practical efficacy of legal provisions, it is also paramount to tighten child support facilities, inculcate skill-building for dependent women, provide psycho-educational counselling for the affected family, and induct a sex-education curriculum in schools of rural areas, where it is primarily disregarded.
While the feminist movement has evolved exponentially, we resist an egalitarian democracy until all women are ceded their indispensable right to bodily autonomy. In my view, the criminalization of marital-rape would awaken the nation’s conscience to this reprehensibility that currently defiles its fundamental freedoms, all of which cannot be divorced from the kernel of the sacrosanct marital institution.
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Preferred Citation: Divyashri Puri, THE CRIMINALISATION OF MARITAL RAPE IN INDIA: A CONDITIO SINE QUA NON , The Criminal and Constitutional Law Blog, Published on 24th August 2021