“Rape is an only offence where victim becomes the accused”

Introduction

It is impossible to imagine a society without crime. Crime is a part of society and both runs together. In a patriarchal world, crime against women isn’t a new concept. And Rape is one of the most heinous crimes against women and society. In India, unlike other countries, the victimization of rape is confined to only unmarried women and married only in cases when

she is below15 years. Here rape is sexual intercourse committed by a man without or against the consent of a woman. Exception 2 of Section 375 of IPC excludes a married woman as a victim of rape committed by her husband. Though Article 14 of the Indian Constitution grants everyone the right to Equality Indian society isn’t that broadminded that it can accept that sexual intercourse by a husband against the will and consent of his wife amounts to rape. Neither our ancient society nor any contemporary legislature has recognized marital rape as an offence against women. Law Commission report in 2013 argued against criminalizing marital rape. Their very ground was based on the concept that marital rape goes against the grain of Indian Thoughts and our social conditions. With the change in time and the emergence of feminism, West nations including developing countries amended their legislations and acknowledged marital rape as a crime. In India, the outlook of the Judiciary and committees, and NGOs towards marital rape is a bit different from our lawmakers. With the fear of emerging ‘broken marriages’, Indian legislators have hardly taken any step to accept this crime. But Indian Judiciary by case laws has taken various measures to make it an equal offence like rape

Ancient Vedic Society was founded on the principles of Dharma. The society was plural i.e., based on equality and a high degree of morality. Anything against morals was considered a crime. Unlike other countries, the Vedic period recognized crime against women as a crime against their bodies. She wasn’t treated like the property of her father or husband. Women enjoyed dignity and separate identity like men. In Rigveda, we find that an attempt to rob of women celibacy and purity was considered a sin, followed by cruel and harsh punishment.

Marriage at that time was based on the consent of both partners. The consent for sexual intercourse was a sine qua non. Marriage and relationships devoid of consent had no recognition in our past. So, our ancient religion and sculptures were silent on the criminalization of marital rape. Hinduism has never witnessed marital rape cases in history. Vishnu has severe punishment for rape but does not have anything for marital rape. (Upadhyay, 2022).² During the Mughal Period, though women enjoyed some rights but being treated as the property of her husband never gave them to raise voice against forceful sexual intercourse.

Indian law is mostly inspired by common law. Sir Mathew Hale, Chief Justice in England in 1600s held in his judgement that the husband cannot be held guilty of a rape committed by himself upon his lawful wife. As marriage means mutual contract and consent, the wife has given herself in kind unto the husband, whom she cannot retract. This was the judgement in

the 17^th century. After that rape laws in England and other European countries have gone through many commendable changes. In 1991, English law was under pressure arising due to marital discord and marital rape was made punishable. In the United Sates, Oregon v.

Rideout in 1978 was the first case where partner underwent a trial for raping his spouse. And in 1993, the USA criminalized marital rape. India’s neighbouring countries like Nepal and Pakistan changed the definition of rape in their domestic laws and made marital rape as a criminal offence in 2006. Article 2 of the Declaration of the Elimination of Violence against Women incorporate marital rape explicitly in the definition of violence against women.

Till now the definition of rape has gone through various changes. But there is hardly any light on criminalizing marital rape. As per the annual report of the National Crime Records Bureau (NCRB) in 2021, 31,677 rape cases were registered across the country, or an average of 86 cases daily. 172nd Law Commission Report endeavoured to remove Exception 2 of Section 375 i.e., but could not do on the ground that it may lead to excessive interference with the marital relationship. The extent of interference does not put any light on the forceful sexual intercourse by the husband with his wife. The exception is however for only adult women.

Sections 3, 5(n), and 6 combined make the penetrative sexual assault by the husband his wife being, or a woman below 18 years punishable offence with rigorous imprisonment for 10 years or which can be extended to a whole life term. In Maharashtra v Madhukar Narayan Mardikar,³ Honourable Supreme Court equates rape with the invasion of privacy of a woman without her consent. The court remarked that even if a woman is of easy virtue, no one has the right to invade her privacy. Considering this point of view, the present definition rape in our penal code is narrow and outdated. In Suchita Srivastava v. Chandigarh

Administration, the Apex Court held that constitutional rights to personal freedom, privacy, dignity, and physical integrity includes the right to choose a sexual activity. In 2005, the Protection of Women from Domestic Violence Act, 2005 was legislated that recognized marital rape as a class of local violence. According to this act, women were given the right to go to court and get legal partition from their husbands for marital rape.

In the above cases, the exclusion of married women from their fundamental rights and privacy isn’t observed. In Bharatbhai Desai v. the State of Gujarat, the Gujrat High Court explained that “dehumanized treatment of women will be acceptable” and also “marital rape is not a privilege of the male spouse in a marriage, but instead a violent conduct and an unfair treatment that should be criminalized.” After 2012 Nirbhaya Rape case, JS Verma Committee set up nationwide protest and demanded the criminalization of marital rape in India. In the next year, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested Indian government to criminalize marital rape in India.

In the year 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, told that Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent. In X vs The Principal Secretary, Health & Family Welfare Department, Govt. of NCT Delhi,⁴ the Supreme Court of India gave equal abortion rights to single women as married women. The bench headed by Justice D.Y Chandrachud held that the artificial distinction between married and single women for abortion rights⁵ is not constitutionally valid and sustainable. The meaning of rape also includes ‘marital rape’ for Medical Termination of

Pregnancy Rules, 2003 (MTP Act). Thus, married women who suffered from marital rape were granted equality to abort pregnancy in 20-24 weeks.

Conclusion

Contemporary laws and present rape figures conclude that Indian laws merely provide partial protection to the victims of marital rape. There is no blanket protection in India against the evil of marital rape (Loganathan, Sangamithra., 2019).⁶ According to the National Family Health Survey 5 (2019-21), “Among married women aged between 18 to 49 who have ever experienced sexual violence, 83% of them report their current husband and 13% report a former husband as perpetrator.” It is acknowledged that our past, custom, and culture has never considered marital rape as offence of rape. But today, the object of law and order is to deliver justice. The interpretation of laws is made in such a way that it doesn’t leave any window for inequality. Keeping this⁷ exception is an obsolete idea. Gender equality is the main hindrance in the pathway of development. India ranks 9 in the world’s most dangerous country for women, its women’s danger index is 541.25 which is above average (413.01). So, for such a nation, the illegalization of marital rape will be freedom for women where they won’t be in a fear of an unwanted sexual assault by their husbands. Besides that, the punishment for rape and marital rape should be the same. This will serve as a preventive measure against men who think women are their property. The uprising of false rape cases against men cannot be neglected. Unlike rape, marital rape must be made gender neutral offence and strong penal measures must be attached in case of false allegations. There must be a cross-examination of both the victim and the accused.

Blog by:

Samridhi Dhir, BA.LLB

Janhit College of Law