Why immunity is given for husband under martial rape?

• The grounds for “marital immunity” for rape prosecution have emerged from the patriarchal discourse in society.
• According to which, a husband cannot be guilty of a rape committed upon his lawful wife because she has given up herself in this kind to her husband by their mutual matrimonial consent and contract, which she cannot retract.
• Under the impact of the second wave of feminism in the seventies, Australia became the first common law country to pass reforms in 1976 and after it, many Scandinavian and European countries made rape in marriage a criminal offence.

Legal Provision Regarding Marital Rape:

• Marital Rape Exception: Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age, also known as the “marital rape exception”.

 Issues With Marital Rape Exception:

• Against Basic Rights of Women: This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.
• It also denies the agency over their own bodies to women.
• Dismal State of Judicial System: Some of the reasons for low rates of prosecution in the cases of marital rape in India include:
• Low reporting of crimes due to societal conditioning and low legal awareness.
• Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
• Out of court settlements due to the lengthy process of justice/lack of admissible proof.
• Justice J. S. Verma Committee Recommendation: The Justice J. S. Verma Committee, constituted in the aftermath of the horrific Nirbhaya gang rape in 2012.
• While some of its recommendations helped shape the Criminal Law (Amendment) Act, 2013, its most radical suggestions, including on marital rape, were swept under the carpet.

When marital rape is challenged in Court ?

• The Delhi High Court has been hearing arguments in the case since 2017.
• However, this is not the first time that the issue of marital rape has been raised in the country.

• It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
• However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.

• The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India's laws on sexual violence.

Justice JS Verma Committee:

• In 2012, the Justice JS Verma Committee was tasked with proposing amendments to India's rape laws.
• While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.

• The issue has been brought up in Parliament as well.
• Upon being questioned in a Parliament session in 2015, the idea of criminalising marital rape was dismissed with the view that "marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society".

Where martial rape is defined in Indian Constitution?

• In India, marital rape is not defined in any statute or law.
• Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offence and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor.
• However, according to Exception 2 to Section 375 “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape
• However, in a landmark judgment in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18
• The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.

Data Analysis

• Domestic violence in India is an entrenched problem, and it has only been exacerbated in recent years. About 70 per cent of women in India are victims of domestic violence.
• However, one of the most horrifying and repressive issues with the Indian legal regime is that marital rape is not criminalized .
• National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 reported that a woman is raped every 16 minutes and every four minutes, she experiences cruelty at the hands of her in-laws.
• National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
• According to one study by the UN Population Fund, more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex.

Suggestions

• It is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC. By removing this law, women will be safer from abusive spouses.
• They can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
• Indian women deserve to be treated equally, and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
• It is important that legal prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police officers and those in society generally.
• The need of the hour is that marriage and divorce must come under secular law and there cannot be any difficulty in having a common code of law for all communities at least for marriage and divorce.

Who held that Martial rape is considered a ‘rape’?

• In a landmark judgment in 2018, the Supreme Court (SC) of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18.
• In the State of Karnataka vs. Krishnappa, the SC held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
• In the Suchita Srivastava vs. Chandigarh Administration, the SC 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.

Arguments Against Criminalising Marital Rape

• Destabilise marriage as an institution: It may create absolutely anarchy in families and destabilise the institution of marriage.
• Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
• Law Commission has not recommended: Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.
• Implementation issues: Criminalizing marital rape will create serious implementational issues like veracity of testimony, evidences in the courts etc.
• Diversity in Culture: India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
• Awareness is more important: Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.

Arguments For Criminalising Marital Rape

•  Ensuring Security of Women: It will ensure that women remain safer from abusive spouses and they can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
• Marriage is not a license: A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity. Further, a married woman has the same right to control her own body as does an unmarried woman.
• Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution.
• Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21.
• Article 14: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
• Torture for Life: A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life.

How did the Exception on Marital Rape find its way into the IPC?

• British Colonial Rule: The IPC was implemented in India during British colonial rule in 1860.
• Under the first version of the rules, the marital rape exception was applicable to women over 10 years of age which was raised to 15 in 1940.
• 1847 Draft of Lord Macaulay: In January 2022, it was argued by amicus curiae (friend of the court) that the IPC is based on the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India.
• The exception in the draft decriminalised marital rape without any age limit.
• The provision is an age-old idea that implies consent by married women and protects the conjugal rights of the husband.
• The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736.
• It states that a husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.

Doctrine of Coverture:

• According to the Doctrine of Coverture, a woman has no individual legal identity after marriage.
• Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme Court of India struck down adultery as a criminal offence in 2018.
• It was held that Section 497, that classified adultery as a crime, is based on the Doctrine of Coverture.
• This doctrine, although not recognised by the Constitution, holds that a woman loses her identity and legal rights with marriage, is violative of her fundamental rights.
• According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation.
• In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
• The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.

Countries allow Marital Rape:

• Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.

Countries which allow to File Complaints:

• While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions. About a dozen countries allow rapists to avoid prosecution by marrying their victims.