TEN POINTERS OF THE NEWS
1. Marital Rape still Not Punishable under IPC
The Chhattisgarh high court has discharged a 37-year-old man from the charge of marital rape, saying that sex with a legally wedded wife is not classified as rape under the Indian Penal Code.
The definition of rape codified in Section 375 of the Indian Penal Code (“IPC”) includes all forms of sexual assault involving non-consensual and even consensual intercourse subject to forced conditions with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution.
2. Theory of Perpetual Consent post Marriage
As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. While unwilling sexual contact between a husband and a wife is recognized as a criminal offence in almost every country of the world, India is one of the thirty-six countries that still have not criminalized marital rape.
The court, however, retained the charges against him under section 377 of the IPC for “unnatural sex”. The order by Justice NK Chandravanshi was issued on August 23 in a revision petition filed by the husband and his family on the charges framed against the man in the trial court.
3. Section 377 IPC
On the woman’s allegation of her husband forced her into an unnatural sex act, the court upheld the imposition of section 377 of IPC.
Section 377 IPC: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
4. Charges before Trial Court
The woman was married in the year 2017 lodged a complaint of dowry harassment and rape against the man. She also accused her parents-in-law of dowry harassment. The police, after a primary investigation submitted a charge sheet under section 498-A (dowry harassment), 377 (unnatural sex), 376 (rape), and 34 (common intention) of the Indian Penal Code (IPC) against the three accused. After hearing counsel for both parties, a trial court framed charges against the applicants under the sections, the order said. Subsequently, the three accused filed a petition with the high court seeking that the order of the trial court is set aside. The HC in its order on August 23 discharged the husband from rape charges.
The court said that the IPC makes it clear that sex between a man and his wife, as long as the latter is not under 18, is not rape.
“In this case, the complainant has legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, the charge under Section 376 of the IPC framed against the applicant husband is erroneous and illegal. Hence, he is entitled to be discharged from the charge under Section 376 of the IPC”, the order stated.
4. Justice Verma Committee Report on Marital Rape
A 2013 report submitted by the Justice JS Verma Committee, which was set up after the December 2012 Delhi gang rape, recommended the removal of the marital rape immunity from the IPC but the statute is yet to be amended. In the past, Indian courts have taken divergent and contradictory views in such cases.
5. Other Petitions on Marital Rape
In July 2019, the Delhi high court dismissed a petition urging it to direct the Centre to declare marital rape as a ground for divorce. But earlier this month, the Kerala high court backed marital rape as a valid ground for divorce. A few days later, a sessions court in Maharashtra gave pre-arrest bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralysed.
In 2017, the Supreme Court declared that “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not”. However, the top court refused to delve into the question of marital rape in this judgment.
- In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
- In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens.
6. Marital Rape
The concept of marital rape in India is the epitome of “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise. The Indian Penal Code, 1860, also communicates the same.
7. The United Nations Declaration on the Elimination of Violence against Women
The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”
Section 375 (Exception) of the Indian Penal Code is inconsistent with and violative of these principles and Article 1 of CEDAW.
Further, the Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article 14 and Article 21 of the Indian Constitution, since it is arbitrary and violates the Right to Life of married women.
8. Status of Marital Rape in India
- The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
- Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
- However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution.
- As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
- Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise.
9. Marital Rape: Against Legal & Constitutional Rights
Doctrine of Coverture: Non-Criminalised nature of Marital rape emanates from the British era. Marital rape is largely influenced by and derived from this doctrine of merging the woman’s identity with that of her husband.
At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity.
The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
10. Reporting of Marital Rape in India
One of the news in The Hindu dated October 2014 was mentioned that only 1 per cent of marital rape is reported.
Another coverage by Mint in 2018 mentioned survey of National Family and Health Survey suggests that the absence of a strong law against marital rape and assaults is the factor behind the low reporting.
