Rape, as defined under Section 375 of the Indian Penal Code, is the offence of non-consensual sexual intercourse with a woman, against her will. However, Exception 2 to the law immunizes the offence in the event that the woman in question is the wife of the perpetrator. Herein, the Indian Law legalizes the offence of Marital Rape, as one of the 36 countries that continue to do so. The outdated law can be traced back to colonial India in the Victorian era in the 19th century. The Victorian norms of the time did not view men and women as equals and merged their identities into a single individual. There is a stark contrast between ideologies of the 19th century and those prevailing today. However, the Government of India has clung to these outdated norms and refuses to alter the narrative of the female gender as inferior, reinforced by the legality of marital rape. This article aims to evaluate the centuries-old law legalizing the offence of marital rape by analyzing existing laws, court judgements, the Indian Government’s stand on the issue, recent developments, as well as the implications of the existence of this law.
Questioning the Legality
The legality of Marital Rape violates Articles 14 and 21 of the Indian Constitution, an indispensable part of the basic structure of the Constitution. Article 14 avers equality before law and extends equal protection of law to all individuals. Subsequently, in the case of Anwar Ali v. West Bengal, the Supreme Court laid down the test of reasonable classification which, if passed, justifies any exclusion from this Article. The test states that the exception must be founded on intelligible differentia and must have a rational nexus. However, there exists no reasonable distinguishing factor between a married and an unmarried woman for which the former is exempted from the law. Here, the marital status of a woman does not serve as a reasonable classification, as it does not reduce the mental and physical trauma that may be experienced by the woman during rape. Further, Article 21 of the Constitution ensures the right to life and personal liberty, widely interpreted by the courts to include sexual autonomy and safe living conditions. The law regarding Marital Rape in India directly violates both the aforementioned rights guaranteed under Article 21. Furthermore, the Supreme Court itself has enunciated the right to bodily and sexual autonomy, such as in the case of Suchita Srivastava v. Chandigarh Administration, where it was held that there shall be no restriction in a woman’s choice to engage in sexual intercourse. There is no sound reasoning as to why these rights cease to exist with a change in one’s marital status.
Breaking Down the Government’s Stand
The Indian Government’s stance on the crime of Marital Rape is saddening, to say the very least. In 2017, the Union Government submitted that criminalizing marital rape in India would “destabilize the institution of marriage”, as well as proving to be a “tool for harassing husbands”. Both arguments are founded on sexism and misogyny, essentially saying that the artificial idea of the institution of marriage is more important than the physical and mental abuse, along with the lack of bodily autonomy, faced by women. The former argument has been refuted by the Supreme Court itself, in the case of Independent Thought v. Union of India. In the aforementioned case, the court held that the criminalization of marital rape will not, in any way, destroy the institution of marriage, in addition to using the analogy of a divorce in order to explain the same. It was also averred by the court that unless marriage itself is made illegal by law, nothing can destroy the institution. However, the government still, in the 21st century, seems to believe in this narrative. The latter argument is one that has been used time and again by those that are uneducated, without any logical basis to support it. One might cite the 2014 Report of the Delhi Commission of Women alleging that over 53% of reported rapes in 2012-13 were false. The ignorance of the Commission coupled with its disregard for facts gave the perfect excuse to people across the country to engage in victim-blaming and invalidating rape victims. The reality of the statistics lay in the fact that cases dropped before moving to trial were termed as ‘false accusations’, without an investigation into the reasons behind them. This makes evident the indifference towards practices such as coercion, blackmail and bribing that goes on behind the scenes, causing women to drop cases. It is virtually impossible to analyze the exact number of cases that are a product of false accusations, but the percentage is considerably low. Moreover, at the very least, those who are true victims of these crimes shall not be left to suffer due to the malice of a select few.
Recently, on 30 July 2021, the Kerela High Court passed a landmark judgement on the topic of marital rape. It held that marital rape was a valid ground for divorce while amounting to cruelty. The strongly-worded judgement acknowledged the mental and emotional trauma faced by victims of such a horror while recognizing the same as infringing upon the constitutionally guaranteed rights of privacy, bodily autonomy and life and liberty. In doing so, it acts as precedent and provides victims with a necessary, though extremely limited, escapes. However, this judgement could have negative implications upon the fight for the criminalization of marital rape as well. By providing a limited remedy in the form of divorce from the perpetrator, the government and courts have effectively pushed back the criminalization of the act for multiple years. This very judgement can be used to deny victims real justice in the form of imprisonment of the perpetrator by citing divorce as a sufficient remedy. It fails to take into account the stigma attached to “divorce” in Indian society, while simultaneously disregarding the access to such a remedy to Indian women. A mere divorce does not provide the relief necessary from such a horrendous act. To file for divorce, the victim would be required to draft a petition before a family court, while taking steps such as drafting a vakalatnama and gathering of necessary documents such as the residence proof and marriage certificate. It is extremely unreasonable to expect a victim of rape to go through the extraneous process of filing for divorce, especially when it can lead to the victim being subject to further cruelty at the hands of the perpetrator. Hence, the criminalization of this offence is of utmost importance, to facilitate a speedy trial, as well as giving the victim the power to file an FIR, as a basic measure for an offence that is essentially equivalent to murder.. Hence, while the judgement of the Kerela High Court can be seen as a triumph due to the recognition of marital rape as cruelty, it also takes away from the possibility of the criminalization of the offence, backtracking progress by providing a limited remedy that fails to be adequate on almost all grounds.
Implications of the Law
The law on rape treats women as second-class citizens, as people who are not allowed to consent. The absence of a law criminalizing marital rape clearly means that the legal system of India assumes that marriage equals lifelong consent. It essentially takes away married women’s power to say “no”. This narrative, in turn, reinforces the idea of sexual intercourse as a “marital duty” that cannot be refused by the woman. Here, the law assumes that women have the right to consent within their relationships, yet this right is not worthy of being protected by law. It blatantly disregards the gendered disparity that exists in the largely patriarchal society of India, wherein refusing sexual intercourse can lead to extreme physical and mental violence against women. Here, in addition to being unable to exercise rights over their own body, married women are denied legal recourse when multiple rights of theirs are violated. In doing so, the law reduces married women to “property” of their husbands, seen in secondary terms and as second-class citizens, against whom the crime of rape cannot be committed. Additionally, the law (in practice) differentiates between rapes wherein the perpetrator is a stranger and when the perpetrator is known, or someone with whom the victim has (voluntarily) engaged in sexual intercourse prior to the incident. Here, the law downplays the trauma faced by the latter. However, according to the 2019 Annual Report of the NCRB, 32,033 rapes were reported, out of which 94.2% were by perpetrators known to the victim. This percentage is a part of the rapes that were reported, as opposed to the majority of rapes that go unreported, for a number of reasons. Through this, we only begin to understand the sheer gravity of the situation. Further, in recent times, with the COVID-19 pandemic, the number of rapes by perpetrators known to the victim rose exponentially, with an absence of legal recourse to the victims. The law, time and again, discriminates between groups of people who are victims of the same crime, but in different situations- such as married and unmarried women, and whether the perpetrator is a stranger or not. This directly goes against the very ideals that our Constitution was built upon, equality and fraternity. It subjects women to physical and mental abuse as they are not only legally paralyzed but are also forced to continue in that marriage. The bottom line is that the law in India disregards the concept of consent, and legalizes rape, in certain cases, which is extremely alarming, as a citizen of this country.
Having analyzed the law on marital rape in relation to existing laws, previous Supreme Court judgements, the Indian Government’s stand and understanding the implications of the existence of this law, it is clear that there exists no rational basis for the same. Logically, this law can be seen as a product of the patriarchal norms and ideologies that are still rampant in India, even in the 21st century. Our elected government, whose agenda focuses largely on modernizing and developing India, continues to reinforce the patriarchy that post-colonial India was built on by defending and believing in Victorian-era laws, that hold no basis in modern India. Moreover, the recent judgement of the Kerela High Court may prove to be a bane by virtue of the backtracking of progress made towards the criminalization of marital rape. The adequate remedy deserved by the victims of this crime is the imprisonment of the perpetrator, not mere divorce. Therefore, it is imperative for the law on marital rape to be repealed to facilitate and ensure equality, a right guaranteed by our Constitution, and to further the narrative that rape is rape, no matter who the perpetrator is.
About the Author Ananya [2020-25] is pursuing B.A.LL.B (Hons) at Jindal Global Law School.