This article has been written by Bidisha Banerjee, a 2nd year BA.LL.B student of Jogesh Chandra Chaudhuri Law College, University of Calcutta.
INTRODUCTION
Rape is defined as an unlawful sexual activity, involving penetration of someone’s vagina, anus or mouth, without free consent. It is considered to be a morbid act of asserting dominance over the victim. In order to determine whether a given sexual encounter can be classified as the crime of rape is to show that there has been a lack of free consent on the part of victim. The onus of burden of proof is the responsibility of the victim.
Marriage can be legally defined as the state of being united to a person of the opposite sex as husband or wife in a legal, consensual and contractual relationship, recognised and sanctioned and dissolvable only by law. Marriage is said to legally sanction sexual relations between two individuals. Therefore, mutual consent among the spouses is always presumed in marriage. This makes it quite hard to prove marital rape.
BODY
Rape laws are governed by Section 375 of the Indian Penal Code, 1860. Many changes have been brought about to make those laws stringent, especially since the 2012 Nirbhaya Gang Rape case. But matrimonial rape still stays decriminalised. The Exception 2 of Section 375 does not recognise marital rape as a crime. India is one of the 36 countries that hasn’t criminalise spousal rape.
According to the former Chief Justice of India Dipak Misra, marital rape should not be made a crime in India “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” as reported by The Times of India, the premise being in India, marital rape will fail unlike in the West, owing to the stark contrast in culture and socio-economic conditions between the two places. Plus, social customs, religious beliefs and large scale illiteracy breeds an environment unsuitable to criminalise spousal rape. People are still inept to accept this change.
Despite multiple petitions filed in various High Courts regarding striking down Exception 2 of Section 375, the government has been citing various arguments for not striking down that provision. According to them, in order to criminalise this act, what constitutes marital rape and marital non rape has to be precisely demarcated. “What may appear to be marital rape to an individual wife, it may not appear so to others.” Marital rape can destabilize the institution of marriage. Women are suspected to misuse the law just to harass the husband, as seen in the case of 498A of IPC.
What do reports say?
The NFHS-4 data show that 83% of married women reported their current husbands to be their perpetrator. Even in RIT Foundation v Union of India, AIR 2018, Amicus Rajshekhar Rao admitted that considering the NFHS data, it can established that 9.9 out of 10 cases of sexual assault in India go unreported, which was not denied by the Union.
The reports also say that physical violence and sexual violence go hand in hand. Oftentimes, the husband would physically assault the wife because the wife had earlier refused to have sex.
CONSENT AND BURDEN OF PROOF
Consent is the sole principle which helps us to differentiate sexual intercourse from rape. Section 375 of Indian Penal Code, 1860 states that consent should possess certain qualities – unequivocal, voluntary, willingness and must be communicated. The Code also mentions that a woman, who is not physically resisting a specific sexual act, shall not be considered to consent to the sexual activity. Simply speaking, consent must be voluntary, be it verbal or non-verbal. Also, the person giving consent must be capable of doing so.
Section 114A of Evidence Act says that if the woman alleges that she has been raped and by evidence can prove that her consent was absent, then the court will presume the same.
One of the main hindrances which has obstructed the criminalisation of marital rape is the matter of burden of proof. The question remains who would bear the burden of proof and what would that burden be.
Once a woman alleges that she has been raped in a marriage, there would hardly be any evidence, like CCTV footage etc, to prove that the woman has or has not been raped and therefore, the burden of proof would be a difficult concept to apply in these cases.
CONCLUSION
“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’.” This was the observation made by the Karnataka High Court, while deciding not to quash the FIR against the husband on marital rape.
Many reasons are stated for India not criminalising marital rape, such as an old Penal Code, dating back to Victorian times, a rigidly patriarchal society, based on suppressing women’s voice and agency, and a culture which still upholds marriage and family as a primary building block of the society.
Marital Rape is quite a tricky issue tackle with, which is evident by the split judgement of Delhi High Court in this matter. Many argue that by not criminalising marital rape, women are discriminated by their marital status. This is in complete violation of the right to life, dignity and bodily privacy protected under Article 21 of the Constitution. She cannot ask for help if she has been raped because it was her husband, who did that. There have been many cases of wife filing a criminal suit against her husband and his friends for gang-raping her, and the charge against the husband being quashed because of the exception.
One must keep in mind the wife’s severe trauma when her own husband, who was suppose to protect and provide her, would force on her and she could not get out because the people cannot even register the fact that a husband can ‘rape’ his wife. The ancient belief that there exists perpetual mutual consent in marriage must be done away with.
Many are against the criminalisation of marital rape. They say that the victim wife has many other ways like domestic laws and Section 498A of the IPC to resort to on the event of sexual violence of husband’s part. There is an increase in misuse of the provision. But citing the NFHS data refutes this statement. Plus, if the exception is removed, then sex with a drunk wife, unsound wife, pregnant wife or having multiple intercourses will be considered a criminal offence, which really raises many new legal lacunae.
The Supreme Court will hear the batch of petitions regarding the issue of criminalisation of marital rape on May 9.
REFERENCES
https://www.britannica.com/topic/rape-crime
https://www.womensweb.in/2023/03/recent-nfhs-data-on-marital-rape-in-india-mar23wk3sr/
https://www.indiacode.nic.in/handle/123456789/2263?sam_handle=123456789/1362
https://theswaddle.com/marital-rape-inda-decriminalized-crime/
https://www.opindia.com/2022/01/marital-rape-debate-explained-arguments-for-and-against/
https://www.lawinsider.in/columns/burden-of-proof-in-rape-cases
https://www.vidhikarya.com/legal-blog/criminalization-of-marital-rape-in-india
Aishwarya Says:
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems to secondinnings.hr@gmail.com
Join our Whatsapp Group for latest Job Opening