This article has been written by Mr. Dhirendra Singh, a 1st year law student of Modern Law College, Pune.

ABSTRACT

This article on “Recognition of Marital rape and Hindu divorce laws” will help us understand about rape under Indian criminal Laws. What constitute the rape and what are the exceptions to it. Article will look into what is marital rape. In order to know what is marital rape it is required to enquire, what are the legitimised rights given to spouses as a consequence of marriage. What does institution of marriage offer to spouses. This article will look into the facts and various judicial pronouncement as to whether marital rape is offence or not and the rationale behind it. This article substantiated with various laws and judicial pronouncement will throw light on what are grounds of divorce under Hindu Laws and pave the way for readers to know how a marital rape can amount to divorce, and what are provision which will lead marital rape into divorce. 

KEYWORDS

Rape, Marital rape, Marital rights, Marriage, Court, Divorce.

INTRODUCTION

After the recent judgement of Gujrat High Court recognising Marital rape as a crime, debates have heated and marital rape has become a hot topic for discussion and debate in classrooms, media houses, law firms and courtrooms too. Indian penal code provides for offences against women and section 375 of IPC provides for what is rape and the same was amended in 2013 to provide a wider definition of rape. However, section 375 has an exception which says acts which constitute rape if done by Husband will not amount to rape if the wife is above 15 years. Thus, Indian laws do not recognise Marital rights but voices have been stemming to criminalise the marital rape. However, judicial pronouncements have considered marital rape as aground of divorce in the ambit of cruelty.

RAPE AND MARITAL RAPE 

Section 375 of Indian Penal Code 1860 provide a comprehensive definition of rape. It says a man is said to commit rape if he enters into sexual intercourse against the will and consent of woman. After the amendment of 2013 the definition of rape includes the insertion of any object or any part of the body into private parts of the woman. It includes the application of mouth by a woman to woman’s vagina, anus or urethra against her will or without her consent. In short we can say the rape is a sexual offence committed by a man against a woman against her will or without her consent, and if consented by putting her under threat of death or hurt, or consent in intoxicated state or unsoundness of mind.

Exception to the above said section that is to definition of rape is marital rape, which means any of the acts discussed above if done by a husband to a woman will be an act of marital rape and that is not punishable under Indian laws if the wife is not below 15 years.

INSTITUTION OF MARRIAGE, MARITAL RIGHTS AND MARITAL RAPE

In India and specially in Hindu, Marriage is considered a sacrament and the institution of the society. Marriage is considered as the foundational institution of the society which provide the stability to civilisation. Marriages are solemnised with a pious objective of formation of household and a sub-objective of procreation of children so that civilisation can progress and reach to zenith. Marriage put duties and responsibilities and also provide for some rights to spouses. In India marriages are considered a legitimization of the romantic and sexual acts of two individual but this presumption of implied consent for every sexual act is debated and seems to be fallacious. Marriages are made out of love, care and morality and these adjectives clearly embodies that consent shall be given due consideration while resorting to sexual acts with wife and if the spouse is uncomfortable due to any reason, care is to be taken rather than forcing her for sexual acts. Marriages in India provide for marital rights to both the spouses.      

Marital rights are the rights available to both the individuals bonding in marriage. Marital rights are a bundle of rights and generally these are available for weaker counterpart. In India, women have always been at the receiving end and always been denied of rights. State has enacted laws in order to protect the rights of marital rights of woman. Though there are some gender-neutral rights available to both spouses. Few of the marital rights are:

1. Right to Matrimonial home: In India and in general it is the woman who leaves his paternal home and goes to husband house. Every woman is entitled to her matrimonial home which means she can live in her matrimonial house even if her husband dies and in case of divorce she can live there if alternate arrangement is not provided for. Also, in case of Maharaja Nadar v. Muthukani Ammal AIR 1986 MAD  it was held that wife is entitled to separate residence if the husband is guilty of cruelty. 
2. Right to Divorce: Spoused have the right to take divorce on grounds mentioned in section 13 of HMA and live their life if they feel that they can not live together as a married couple.
3. The Right to Stree Dhan: Section 27 HMA provides for disposal of property to both husband and wife on divorce but it doesn’t take into account the stree dhan of a woman which is provided in Section 14 of Hindu Succession Act,1956. A woman is sole owner and has exclusive rights over her Stree dhan.
4. Right To claim Childs custody: Hindu Adoption and Maintenance act slearly says that custody will be given to mother if the child is below five years of age. Both the parents have equal right of custody in case of child above five years and the court decides it on the basis of Section 26 Hindu Marriage Act considering the circumstances and the welfare of the child.
5. Right to Maintenance: Section 24 and section 25 of Hindu Marriage Act provides for maintenance pendente lite and permanent maintenance respectively for the spouse who is unable to maintain herself/himself. While section 18 of Hindu Adoption and Maintenance Act provides for maintenance to Hindu wife. Section 125 Crpc provides for maintenance to wife and takes a liberal view of the term Wife.
6. Right to property:  As per Hindu Succession Act 1956 wife has equal share in the property of Husband. A widow is classified as Class I heir.
7. Right to report Domestic violence: Wife have right to live a dignified life and can report to any domestic violence or abuse of her rights under domestic violence act, 2005.

All above discussed rights fall short when comes an important and controversial right of Conjugal Rights. Section 9 of Hindu Marriage Act,1955 provides for restitution of conjugal rights which have been topic of debate as it provides a legal right to either spouse to enforce other legally married spouse to live together and consummate (in general sense it is seen to enter into sexual acts) if the spouse has withdrawn from the society without any reasonable excuse.

Though, various judicial pronouncements have seen it as an attack on the autonomy of the woman on her body yet it is the institution of marriage which legitimizes such acts. In case of Sowmithri Vishnu V union of India (1985) Supreme court has held that restitution of conjugal rights must be invoked at last resort when all the methods of reconciliation have failed. 

This restitution of conjugal right stands in front of marital rape being criminalised, though many learned judges have stated that conjugal rights shall not be seen as only in respect of sexual acts yet in general it is accepted that conjugal rights mean of compelling of spouses to enter into sexual acts. While society in today’s times have been raising voices to ensure autonomy of woman on her body and repealing of such section.  It is because of such section in laws which makes a general conception that consent is implied in all acts after marriage

DIVORCE LAWS UNDER HINDU MARRIAGE ACT

Ancient Hindu laws did not recognise the concept of divorce, though various commentaries accepted few exceptional cases in which a wife can leave her husband. As the liberal thoughts discerned into society, states recognised the rights of individuals and enacted modern legislation that is Hindu Marriage act 1955 which provides for divorce.

Modern legislations after giving due considerations to that “if marriages are based on moral and love then only those marriages shall continue in which both love and morality continues” enacted Hindu Marriage act 1955 and provided for several grounds for divorce out of which few are available to either party and few specifically reserved for women.

Section 13 of Hindu Marriage act 1995 mentions the grounds on which individuals can take divorce if the marriage between them is solemnized in accordance with Hindu Marriage Act 1955. The grounds for divorce are:

• Adultery.
• Cruelty,
• conversion to other religion 
• Desertion for not less than 2 years,
• Incurably, unsoundness of mind,
• Either of the partner has renounced the world
• Either of the partners suffering from communicable venereal disease
• Either of the partner is not heard of as being alive for a period of seven years or more by those who would naturally hear of it.

There are some specific grounds of divorce mentioned which can be exercised by the wife only, like Bigamy, Husband after solemnization has been guilty of rape, sodomy or bestiality etc.

Also, section 13B of HMA 1955 provides an option for divorce with mutual consent. It is a condition where both the partner realize and accept the fact that their marriage has been irrevocably broken down and want to dissolve their marriage.

MARITAL RAPE AS A GROUND OF DIVORCE

Though Marital rape is not an offence in IPC yet by Kerala High Court in 2021 ruled that marital rape amounts to cruelty by husband to wife and a ground for divorce under the ambit of cruelty. The bench was of opinion that sex in married life shall not take form of sexual pervasions against her will.

Hon’ble Supreme court is yet to decide on Marital rape, whether marital rape shall be an offence or not. However, Gujrat High Court recently in Dec 2023 ruled that “Rape is Rape” whether done by any man or Husband itself and thus criminalizing Marital rape. After the criminalization of marital as rape, it becomes another ground for the wife to seek divorce if her husband is guilty of rape under section 13 (2) (ii) of Hindu Marriage Act if they are Hindus and married under HMA 1955.     

CONCLUSION

Institution of marriage is the basic foundation for the civilisation. Every marriage is made on the sole ground of love and morality and marriage sustains if the either party are in love, take care of each other and maintain the morality in their relationship rather resorting to adulterous act, not considering the assent of partner with respect sexual acts. Marriage solemnised continues until tolerance and appreciation for others point of view is respected.

This argument of several people that criminalising marital rape will bring instability to society as there will be increase in frivolous litigation does not seem to be qualifying as marriage itself gets disturbed the moment marital rape is done and consideration to the consent and condition of the partner is not given and act is done.

Criminalising marital rape is the need of the hour but due consideration is to be given to the fragile nature of institution of marriage as charge of rape will render the marriage irreconcilable. Fragile nature of marriage shall not be put to prosecution bluntly. Specific legislation with respect to marital rape shall be made and amendment to divorce laws shall be done.    

REFERNCES

Indian Penal Code,1860

Hindu Marriage Act 1955.

Maharaja Nadar v. Muthukani Ammal AIR 1986 MAD 

Sowmithri Vishnu V union of India (1985)  

https://aishwaryasandeep.in/live-in-relationship-and-hindu-divorce-laws