INTRODUCTION:
According to dictionary, rape refers to “an act of coitus by a man against the will of a woman”. It is a mark of disgrace which exists in our society from a long time and according to the recent NCRB reports, in terms of most common crimes committed against the women in India rape comes at the fourth position. Further the report states that a woman in India is raped every 16 minutes and Rajasthan recorded the highest rate of rape cases, where around 5,997 cases of rape was recorded in 2019 itself, followed by Uttar Pradesh and Madhya Pradesh. A major shock is on an average, 87-88 instances of rape take place every day in India, whereas, the conviction rate is only around 27% making the whole situation worse[1]. This data doesn’t provide the complete picture of the prevailing situation in our country because these are the figures of complaints filed not the actual number of crimes committed reason being most of the cases go unreported.
Definition of Rape:
Rape is a cognizable offence all over the world. In India, it was clearly defined as an offence in the year 1860 under Indian Penal Code. The definition of rape according to Criminal Law (Amendment) Act, 2013 is as follows:
“Section 375: A man is said to commit “rape” if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
Firstly. –– Against her will.
Secondly. –– Without her consent.
Thirdly. –– With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. –– With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. –– With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. –– With or without her consent, when she is under eighteen years of age.
Seventhly. –– When she is unable to communicate consent.
Explanation 1. –– For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2. –– Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act
Exceptions –– 1. A medical procedure or intervention shall not constitute rape;
- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”[2]
Over the years, the definition of ‘Rape’ has evolved to be more inclusive of numerous ways through which the personal bodily space can be violated of a woman such as sexual intercourse and other sexual penetrations like oral sex. Still, there lies loopholes that needs to be mended like the definition of rape is not gender neutral; it has always been assumed that rape is committed by a man and only a woman can be the victim despite the harsh reality that rape can be committed against any person irrespective of gender and even by the same gender as of the victim, it doesn’t include transgenders [ the offence of sexual violence against transgenders is dealt according to the Transgender Persons (protection of rights) Act, 2019, with the maximum punishment of 2 years in case of Rape][3] and it considers marital rape as an exception if the wife is above fifteen years of age. The later section of paper will discuss the issue of marital rape in detail.
LEGAL PROVISIONS:
Although, the offence of rape was introduced during the colonial times, English law hit the realization in due time and amended the laws against the offence of rape into being more inclusive. Whereas, in India anterior to Nirbhaya incident, the laws governing the crimes against women were too narrow in scope hinting the patriarchal nature of laws. Only penetration of vagina by the male organ without the woman’s consent was deemed as an act of rape. Many rapists were not convicted and charged for the offence of rape due to the narrow scope of law which excluded many forcible acts such as penetration of body parts other than vagina through penis or other object. But with the amendment of 2013 in Criminal Law Act, position changed for better.
The amendment further clarified that penetration refers to “penetration to any extent”, even the penetration of vulva but not of vagina would constitute rape and the defense of lack of physical resistance at the end of victim is now irrelevant for a fact. Punishments has become severe, culprit will be imprisoned for no less than 7 years extending to imprisonment for life, and shall have to pay fine too. In worst case scenario, rigorous imprisonment of 10 years extending to lifetime imprisonment along with fine.
Section 53A of the Code of Criminal Procedure contains laws governing medical examination of the accused, whereas, section 164A lays down the laws for governing medical examination of the victim. Further, the reviewed section 376A makes minimum punishments mandatory like if as a result of sexual injury, the victim dies or end up in “persistent vegetative state” then the culprit will be sentenced to minimum 20 years of rigorous imprisonment extending to life time imprisonment or death penalty and the same punishment is awarded in case of ‘Gang Rape’. As per the modification of law Death Penalty is awarded in the most extreme of cases like if the victim is below the age of 12.[4]
Criminal Law (Amendment) Act, 2013, increased the consenting age from 16 years old to 18 years old, and every kind of sexual activity with anyone below the age of 18 years of age will amount to ‘Statutory Rape’. With this amendment, the provision of free first aid and medical treatments to the victims of rape by any government or private hospitals in India, was made mandatory.
In 2013, Supreme Court of India stated that the “two finger tests” on a victim violates the privacy and exacerbates the mental suffering of the victim. Therefore, asked the government to introduce better medical procedures to evaluate the sexual assault.
CAN HUSBAND COMMIT RAPE OF HIS OWN WIFE?
‘Marital Rape’- offence of rape committed against the victim by its spouse. The only difference between marital rape and rape is the assumption of consent. In the institution of marriage, consent is deemed to be implied and therefore, marital rape comes under the exception clause in the definition of rape. This exception clause exonerates the husband from all the punishments for the conduct of rape. Although, many countries have already criminalized ‘Marital Rape’, India is among the only 36 countries, where such a heinous crime is absolutely legal. Law is supposed to protect every citizen under its jurisdiction, yet in India the legal status given to marital rape throws light at the prevailing legal paradox.
In earlier times, women were considered men’s property, they were not deemed to have an independent personality. Hence, after marriage society would consider women’s existence to be merged with her husband, allowing men to treat woman’s body as his property. However, post-feminist revolution, around 1970s women became more aware of their rights and these justifications could not stand for not criminalizing marital rape. But with these evolving times, laws are meant to evolve to suit the current situations and needs of every individual. With the upliftment of women, came the “implied consent theory” to justify the aforementioned exception. According to this theory, marriage is seen as a civil contract in the eyes of legal system and the implied consent to sexual actions is said to the essential element of marriage. Another reason that’s being cited is criminal law is not supposed to interfere in the private space of marriage[5].
HISTORY IN INDIAN CONTEXT:
For the first time, this issue was dwelled upon in 42nd law commission[6]. This report is important since back then it made two notable suggestions. First, when the husband and wife are living separately and are legally separated their ways, this exception clause should not persist. This was plausible suggestion though no reasoning was given. It was assumed with the end of marriage; the consent cannot be implied anymore. Second, it was suggested that “non-consensual sex” with the girl of age between 12 years and 15 years should be treated as an offence not amounting to rape and punishment should be awarded under different section. Because of the reluctance of criminalizing marital rape, this was suggested to be seen as some lowkey offences.
The validity of this exception clause was then questioned in 172nd law commission. It was argued that when other crimes against women was taken into consideration and husbands were held liable for such crimes than why not the crime of marital rape. But the argument was rejected by the law commission stating they are no one to interfere in the institution of marriage.
Following the “Nirbhaya Incident” in 2012, J. S. Verma committed was set up for the suggestions to stricken the laws against the crimes committed against women in the modern times. J. S. Verma committee published the “Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’)” and made several recommendations[7]. One of the recommendations was to criminalize marital rape. Further, it suggested to remove marital rape from the exception clause and second to clearly define that the relationship of marriage should not be a material defense for the crimes committed, under the law. Because the prevailing laws are backed by the outdated notions of women being the chattel of men. Although, when the bill Criminal law bill was introduced, this recommendation by J. S. Verma committee was rejected. Only related amendment was that involving sexually with the married girl of age twelve to fifteen would amount to rape.
In Independent Thought v Union of India, Supreme Court of India made an exception by stating that sexual intercourse with the girl of fifteen to eighteen will be deemed as rape even if she is married. The court held that “the exceptional clause given in IPC makes an unnecessary distinction between married girl child and unmarried girl child”.
MARITAL RAPE AND THE CONSTITUTIONAL LAWS:
As mentioned above, one of the justifications that’s been handed like a candy for not criminalizing marital rape is that court cannot interfere in the matters of marriage institution because doing so would mean breaching the privacy of any married couple. Respecting citizens privacy is a laudable act but at times it can get problematic when that privacy means crime against a person.
Legal status of Marital rape if looked upon constitutionally is in violation of fundamental rights i.e., Article-14 and Article-21. Article 14 provides right to equality to every person with the only exception of “intelligible differentia” but differentiating two women on the basis of marriage status doesn’t come under such exception. It’s the responsibility of state to infringe such marital privacy in order to protect the woman’s dignity and freedom when she is raped by her husband. Section 375 violates the right of equality because it fails to consider a married victim of rape equal to the other victims.
Article 21 guarantees right to life and ‘right to life’ doesn’t merely means physical existence but to live with upmost dignity and freedom. And legality of marital rape is as heinous as the crime itself. If a woman can’t enjoy independence of her own body and mind and the right to make sexual decisions than there’s no guarantee to her dignity. Therefore, this exceptional clause is a blatant violation of ‘right to life’.
In the judgement of Justice K S Puttuswamy v. Union of India, it was held that right to privacy constitutes the right to make sexual decisions and it doesn’t exclude married women above the age of fifteen.
CONCLUSION:
Through this article, we tried to understand the prevailing law against the crime of rape. How the laws protecting women has evolved subsequently and the lacunas that still needs to be addressed. Then the issue of marital rape was addressed by evaluating against the constitutional laws. As seen above the debate for criminalizing marital rape is not new but still it hasn’t made any significant progress, in the right direction. The reason why this discussion is crucial is that it would be a substantial step in the direction of establishing equality among every married woman whose identity is confined to her marriage. It is important to pen down that this is among the major lacuna existing in our criminal laws that tends to defeat the fundamental rights so provided to women.
Section 375 is not completely constitutional since it breaches the fundamental rights with no appropriate arguments. The reasoning that is being cited till date is coated by cultural aspect of the society along with patriarchal nature of society. Therefore, it can be concluded that there lies no alternative to right this prevailing lacuna but to criminalize ‘Marital Rape’. Further, law makers should specifically maintain clarify that no relationship between the accused and the victim should be taken into consideration to mitigate the nature of punishments and punishment granted to a husband who rapes his own wife should be same as any other rapist.
Rape is the infringement of a woman’s body, mind, soul and dignity and it denies a woman her right to choose when, where and with whom she wants to engage physically and mentally. Therefore, all the loopholes in the prevailing law should be mended as soon as possible.
[1] “No country for women: India reported 88 rape cases every day in 2019”. indiatoday.in. visited on 5th January of 2021
[2] The Indian Penal Code, 1860, §375 as amended by the Criminal Law Amendment Act, 2013.
[3] “India’s rape laws don’t cover transgender people. They say it’s putting them at risk”. CNN. visited at 5th January, 2021
[4] Jiloha, R.C. (July–September 2013). “Rape: Legal issues in mental health perspective”. Indian Journal of Psychiatry. 55 (3): 250–255.
[5] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) harward law review
[6] Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http://
lawcommissionofindia.nic.in/1-50/report42.pdf [visited 5th January, 2021]
[7] Justice J.S. Verma Committee, Report of Committee on Amendments to Criminal Law (January
23, 2013
This Article is Authored by Devyani Mishra, 1st Year BALLB (Hons.) Student at NLIU, Bhopal.
