Marital Rape in India: A Legal and Societal Imperative

Authored by Akshita Kaushik (Intern), a Fifth-year Regulation scholar at Delhi Metropolitan Training, affiliated to Guru Gobind Singh Indraprastha College, New Delhi

Marital rape, also known as spousal rape, persists as a major subject globally, regardless of growing recognition of ladies’s rights and autonomy. This paper explores the historic, authorized, and cultural foundations underlying marital rape and examines its impression on girls’s lives. It delves into the jurisprudential understanding of the offence, highlighting societal constructs which have perpetuated impunity for perpetrators. The paper additionally analyses worldwide legal guidelines and conventions geared toward addressing marital rape, together with the legislative and judicial panorama in India. By means of a assessment of authorized precedents and case research, it sheds mild on the complexities surrounding the criminalisation of marital rape and the challenges confronted in its prosecution. Lastly, the paper proposes measures to deal with the difficulty, advocating for legislative reforms, judicial activism, and societal consciousness campaigns to make sure the safety and empowerment of ladies inside marital relationships.

– Justice Rajiv Shakdher 

Based on the Nationwide Household Well being Survey (2019-2021), amongst married girls ages 18-49, who’ve suffered sexual assault, 83% title their current partner because the offender. Globally, greater than 100 governments have made marital rape unlawful, though India nonetheless struggles to do the identical.

Marital rape is also referred to as spousal rape. It’s sexual activity with one’s partner with out the partner’s consent. Non-consent is prime and would not essentially require bodily pressure. Marital rape is categorised as a sort of home violence and sexual abuse beneath the Safety of Ladies from Home Violence Act, 2005.

Whereas sexual relations inside marriage had been as soon as thought of an entitlement for spouses, non-consensual intercourse with a partner is now recognised as rape in quite a few societies globally, with rising authorized repercussions. Nonetheless, extra conservative cultures might reject this viewpoint.

Marital rape impacts each women and men, with out regard to gender, though it impacts girls extra steadily. It typically happens as a part of ongoing abuse inside relationships. The difficulty is influenced by a mix of things together with governmental insurance policies, cultural norms, and societal beliefs, all of which form particular person experiences otherwise. The reluctance to recognise and prosecute non-consensual intercourse inside marriage stems from conventional notions of matrimony, interpretations of non secular teachings, perceptions of gender roles, and cultural expectations concerning the authority of husbands over wives — views nonetheless prevalent in lots of areas globally.

The Nineteen Sixties and 70s noticed important shifts in societal attitudes in the direction of marriage and sexuality in Western nations, spurred by the advocacy of second-wave feminism. This era led to the popularity of ladies’s autonomy over their our bodies and the following elimination of authorized exemptions for marital rape. All through the late twentieth century, many international locations started criminalising marital rape, marking an important step in addressing this beforehand neglected type of sexual violence.

The attitudes in the direction of marriage and sexuality started to shift in Western nations, notably through the Nineteen Sixties and 70s, largely as a result of advocacy of second-wave feminism. This motion led to the popularity of a girl’s proper to autonomy over her physique, ensuing within the elimination of authorized exemptions or defences for marital rape.

All through the late twentieth century, quite a few international locations began criminalising marital rape, an idea beforehand not often addressed inside authorized frameworks. This authorized change took varied varieties, together with the removing of exemptions from rape definitions, court docket rulings, specific legislative amendments, or the institution of particular marital rape offences, albeit typically with lesser penalties. Whereas among the international locations like Pakistan, Bangladesh China, Laos, Haiti, Iran, Singapore, Egpyt and so on stay unclear on whether or not marital rape falls beneath normal rape statutes, in sure jurisdictions, coercive non-consensual sexual acts could also be prosecuted beneath broader legal guidelines addressing violence, similar to assault and battery statutes.

To grasp if the offence ought to be criminalised or not, a probe into the historic, ethical, and cultural foundation ought to be achieved which provides a greater image of the place the understanding of marital rape stems from. These theories and conceptions are majorly societal and have been dictating each individual’s concepts surrounding the idea:

Social constructionism concept introduces a cultural perspective to the roles we adhere to, emphasising the affect of society on human perceptions and potential. It acknowledges that societal modifications result in the emergence of novel practices and behaviours. This concept emphasises the concept that human perspective and information aren’t inherent however are formed by societal constructs.

The constructs surrounding marriage typically mirror a patriarchal viewpoint, tailor-made to serve the pursuits of the highly effective in society. Historically, girls had been considered as dependent entities akin to minors and even slaves, missing autonomy over property and earnings, usually labelled as “feme covert” in frequent regulation techniques. This entrenched notion led to authorized interpretations whereby girls had been seen as subordinate to their husbands post-marriage, implying a presumed consent to all marital acts, together with sexual violence.

The idea of social constructionism finds help within the Western notion of coverture, which posits that upon marriage, husband and spouse merge identities and are legally recognised as one particular person. This doctrine treats girls as property, subsuming their id inside that of their husbands, perpetuating the concept that girls lack autonomy or company. This notion stems from the idea that girls require fixed safety, with males within the household assuming this position as a result of supposed incapacity of ladies to safeguard themselves.

By means of developmental processes, particular gender roles change into entrenched over time by means of social interactions. Ladies are sometimes taught to evolve and adapt to the expectations of males inside household buildings, the place male dominance is historically emphasised. Ladies are instructed to be cautious and conscious in order to not displease the boys of their households. Within the context of marriage, wives are usually anticipated to imagine submissive roles, whereas husbands are inspired to claim dominance.

Marital rape is perceived as an excessive manifestation of gender position socialisation, the place it could be seen as a spouse’s responsibility even when she doesn’t consent. These roles are perpetuated by means of transmitted values, beliefs, traditions, customs, and behaviours handed down from one era to the subsequent. Individuals internalise their social roles by means of on a regular basis interactions and communication.

In 2013, the UN Committee on Elimination of Discrimination In opposition to Ladies (CEDAW) suggested India to abolish authorized impunity for marital rape. CEDAW’s Article 1 defines “Discrimination In opposition to Ladies” as any differentiation based mostly on gender that undermines girls’s capability to train their human rights and elementary freedoms in varied spheres, no matter their marital standing.

India’s authorized provision granting marital immunity conflicts with CEDAW’s Common Advice 19, which identifies psychological and sexual hurt towards girls as discriminatory acts. It emphasises that such hurt denies girls equal enjoyment of their human and elementary rights. Common Advice 35 additional reinforces this, highlighting that marital rape hinges on the absence of voluntary consent and the presence of coercive parts.

Regardless of not signing CEDAW’s non-obligatory protocol, India continues to be certain to uphold girls’s rights no matter marital standing beneath Article 2(f). Clause (f) of Article 2 of the Conference on the Elimination of All Types of Discrimination In opposition to Ladies (CEDAW) mandates state events to take particular actions to remove discrimination towards girls. This consists of implementing all obligatory measures, similar to enacting new legal guidelines or amending present ones, to change or abolish any legal guidelines, laws, customs, or practices that contribute to discrimination towards girls. In less complicated phrases, it requires governments to actively assessment and alter any authorized or cultural norms that drawback or discriminate towards girls. This clause underscores the significance of proactive measures in attaining gender equality and making certain that girls have equal rights and alternatives in all facets of life.

As a member state, India is prohibited from derogating from any elementary rights outlined in Article 5. Moreover, India’s authorized framework contradicts Article 1 of the Common Declaration of Human Rights as a result of discriminatory nature of exception 2 to part 376.

India’s legal guidelines additionally run counter to the Fourth World Convention on Ladies held in Beijing, which urges international locations to implement CEDAW provisions, together with the Non-compulsory Protocol, and to amend or take away discriminatory legal guidelines

The supreme regulation of the nation is the Structure of India. The Marital Rape Exception of the Indian Penal Code violates the next articles of the structure – 

This article ensures to a person the precise to equality and equal safety of legal guidelines. One of many exceptions to Article 14 is the notion of Intelligible Differentia. The state by retaining exception to Part 375 in IPC grossly violates Article 14 as there isn’t any intelligible differentia or rational nexus in making a distinction between a non-consensual forcible sexual activity when the perpetrator is the third individual in a single case and the husband of the lady in different circumstances criminalising the previous offender and securing the later when the psychological trauma of each acts being the identical.

This article states that no individual shall be disadvantaged of their life besides in line with the process established by regulation. In India, Part 375 of the IPC lays down the definition of rape. The second exception to the part gives that what constitutes a marital rape. It states that “Sexual activity or sexual acts by a person together with his personal spouse, the spouse not being beneath fifteen years of age, is just not rape”. In October 2017, this age was elevated to 18 years by the Supreme Court docket.     

Since 2015, the Delhi Excessive Court docket has been engaged in deliberations within the case titled RIT Basis vs The Union of India, [2022 SCC Online Del 1404]. Within the above-stated judgement, two judges of the Delhi Excessive Court docket commenced hearings on petitions filed by people and civil society organisations contesting an exemption. Within the above case, a controversial break up verdict emerged, with one decide advocating for the criminalisation of marital rape as a result of it infringed upon a girl’s proper to consent, whereas the opposite opposed it, contending that marriage inherently implied consent. Consequently, the matter was escalated to the Supreme Court docket.

In 2012, the Justice JS Verma Committee was entrusted with formulating amendments to India’s rape legal guidelines. Whereas a number of of its suggestions influenced the passage of the Felony Regulation (Modification) Act in 2013, sure options, together with these concerning marital rape, weren’t acted upon.

The difficulty of marital rape has been raised in Parliament as nicely. In response to inquiries throughout a 2015 parliamentary session, the notion of criminalising marital rape was rejected, citing the notion of marriage as a sacred establishment in Indian society.

There was a plethora of circumstances on this level which have been cited on this level in India, that are the next:

On this case, the Supreme Court docket held that sexual activity with a woman under 18 years of age is a rape, even when she is the spouse.

Delhi Excessive Court docket directed the federal government to contemplate amending legal guidelines to make marital rape a felony offence.

The court docket dominated that any sexual act carried out by a legally married partner is just not thought of rape, even whether it is achieved towards the lady’s consent or beneath duress. 

It was held marital rape is a disgraceful offence that has scarred the belief and confidence within the establishment of marriage. A big inhabitants of ladies has confronted the brunt of the non-criminalization of the observe.

It was held that the marital rape exception is regressive and is violative of Article 14.

In varied rulings, the Supreme Court docket has interpreted Article 21 of the Structure expansively, extending past its literal safety of life and liberty. The Court docket has affirmed that Article 21 encompasses rights similar to well being, privateness, dignity, safe residing circumstances, and a clear atmosphere.

Latest judicial choices have recognised that these broader rights to life and private liberty embody the precise to refuse sexual activity and to be free from undesirable sexual conduct.

Addressing the difficulty of marital rape inside authorized frameworks requires a multifaceted method that tackles each legislative reforms and societal attitudes. Firstly, legislative modifications are crucial to make sure that the regulation recognises marital rape as a felony offence, thereby offering victims with authorized recourse and safety. This entails abolishing any marital immunity clauses inside present legal guidelines and explicitly criminalising non-consensual sexual acts inside marriage. Moreover, legal guidelines ought to be amended to make sure that the age of consent applies uniformly to all people, no matter marital standing, thereby defending minors from sexual exploitation inside marriage.

Furthermore, judicial activism is important to interpret present authorized provisions in a fashion that upholds the rights and dignity of people, together with the precise to bodily autonomy and freedom from sexual violence inside marital relationships. Courts ought to interpret constitutional provisions, similar to Article 21, expansively to embody the precise to refuse sexual activity and to be free from undesirable sexual behaviour, thereby offering a sturdy authorized foundation for addressing marital rape.

Addressing marital rape calls for a complete method involving legislative reforms, judicial activism, and societal consciousness campaigns. By abolishing marital immunity clauses, criminalising non-consensual sexual acts, and making certain uniform software of age-of-consent legal guidelines, legislative modifications can present authorized recourse and safety to victims. Judicial interpretation of constitutional ensures, similar to the precise to bodily autonomy, additional strengthens authorized avenues for addressing marital rape. Moreover, societal consciousness campaigns play an important position in difficult norms that perpetuate impunity for perpetrators and fostering a tradition of respect for girls’s rights. By means of collective motion, we are able to create a safer and extra equitable society the place all people, no matter gender or marital standing, are protected against sexual violence inside relationships.