This article has been written by Ms._ISHA BHARTI, a 3rd-year student of B.B.A., LL,B(Hons),  CMR UNIVERSITY- School of Legal Studies, Bangalore. 

ABSTRACT: 

Marital rape, a heinous violation of human rights, continues to haunt numerous women in India despite the significant strides made in various legal systems worldwide. The Indian legal system, notably Public Interest Litigation (PIL), signifies a shift towards democratising justice. The recent Gujarat High Court judgement stands as a beacon of hope, challenging the historical exemption and recognizing marital racial sex abuse as an offence. The lack of recognition of marital sexual assault in Hindu Marriage Laws has significant psychological and societal impacts on victims and families. Societal attitudes towards consent and gender roles are shaped and impacted by the absence of recognition, perpetuating the normalization of sexual violence within marriage. The urgency of this issue calls for immediate reforms in the Indian Penal Code to align with contemporary global legal norms, eradicating archaic defences and empowering women as equal members of society. It’s imperative to break the silence surrounding gender violence and provide comprehensive legal protection to victims, ensuring a safer environment within marital relationships. The answer lies in a collaborative effort between lawmakers, judicial bodies, activists, and society at large to champion gender equality and protect human rights.

Keyword: Marital rape, Hindu Marriage Laws, psychological, sexual violence, marriage,  societal impacts 

INTRODUCTION: 

“Marital rape” is a form of sexual violence that occurs within the confines of a marriage. Despite being a violation of human rights, it is not recognized as a criminal offence in many countries, including India. The absence of legal protection against marital rape is an urgent women’s rights concern for India, given that estimates from the National Family Health Survey suggest that more than one-third of married women have experienced sexual violence at the hands of their husbands. The concept of “Marital rape” is not explicitly recognized as a criminal offense in India. Indian law does not currently have a specific provision addressing non-consensual sexual acts between spouses. The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship. However, it only provides for civil remedies and not criminal sanctions. The Indian Penal Code (IPC) has an exception to Section 375 that states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. This exception is based on the notion that marriage implies consent to sexual intercourse, and therefore, marital rape is not a crime. The absence of recognition perpetuates cycles of abuse, hinders progress towards gender equality, and affects societal well-being.

The situation has hardly changed in India, which has yet to criminalize marital rape. The lack of knowledge and receipt of such distorted visions of marital rape through movies shapes the public perception that only rape by a stranger is real rape, therefore culturally invalidating the concept of marital rape. The cultural invalidation of marital rape has also been due to customary religious duties. The legal framework and debates surrounding marital rape continue to evolve. There is an ongoing demand from various quarters, including women’s rights activists and legal experts, to criminalize marital rape. The issue of marital rape continues to be a subject of debate and discussion in India. The Supreme Court has agreed to hear a series of petitions seeking to criminalize marital rape. The absence of specific laws criminalizing marital rape raises concerns about women’s rights and gender equality. Advocates argue that recognizing and penalizing marital rape is crucial for ensuring women’s bodily safety and equal protection under the law. The recognition of marital rape in Hindu Marriage Laws is an urgent women’s rights concern for India. The absence of legal protection against marital rape perpetuates cycles of abuse, hinders progress towards gender equality, and affects societal well-being. The legal framework and debates surrounding marital rape continue to evolve, and there is an ongoing demand from various quarters to criminalize marital rape. The urgency of the issue demands immediate attention and action to ensure the safety and well-being of women in India.

HISTORICAL ASPECT: 

The roots of exempting husbands from rape charges trace back to the time of Matthew Hale, noted for his treatise stating, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for the wife hath given up herself in this kind unto her husband, which she cannot retract.” Although Hale didn’t back this assertion with references, it became accepted as a valid statement of English common law. In cases like Regina v Clarence, Justice Wills mentioned that rape within married couples wasn’t ‘impossible,’ allowing courts to identify instances where the immunity ceased to apply based on specific facts.

Later in the 20th century, cases such as R v Clark and R v Miller highlighted that a wife’s implied consent at marriage could be revoked through a judicial order of legal separation. However, feminist research in the latter part of the 20th century challenged this marital rape immunity head-on. This led to legal battles in England and Australia. In the RvR case, the House of Lords deliberated on admitting further considerations to the protection based on both parties’ conduct, while the Privy Council in England termed the exemption a “legal system myth that has grown outmoded and insulting.” In Australia, there was a dispute over the legal status of sexual offences exemption, leading to the repeal of immunity in every State/Local legislature by the early 1990s, albeit with prospective application. Yet, the issue of exemption as a legal construct remained unresolved. In RvL, the High Court of Australia questioned the existence of the spousal rape exemption in Australian common law. Even if it existed, the court dismissed it as incompatible with contemporary societal views.

This evolution highlights the gradual shift from the historical acceptance of marital rape immunity towards a more critical examination within legal systems in both England and Australia.

EVOLUTION IN INDIA

The aspiration of Lord Macaulay, a council member of the Governor-General of India. His concern lay in India’s cultural diversity conflicting with Benthamite principles of fairness. The culmination of Macaulay’s codification endeavour was the Indian Penal Code 1860 (IPC), still in force today. Macaulay’s intent was to craft the IPC in a manner that ensured “clarity and accessibility of principles, as well as uniform interpretation and implementation.”

Formulated amidst a tumultuous period of British rule in India, the Macaulay Rule emerged as a product of its distinct historical, social, and philosophical context. Critics, like Dhagamwar, argue that the Macaulay Code lacked sensitivity to local conditions, embodying “Victorian ideas” in its approach to sexual offences. However, criminal procedure historian Stanley Yeo contends that Macaulay’s Code took a progressive stance on rape legislation, offering greater protection to women than many other legal systems. For instance, IPC placed the burden of proof on the defendant to demonstrate whether they knew or should have known about the woman’s consent to sexual intercourse. Despite its initial liberal approach, the IPC faced challenges in adapting to evolving societal norms and legal needs. Section 375 of the IPC notably exempted marital rape from being considered a crime in India, echoing 19th-century English law. It recognized exceptions, exempting a wife under fifteen (Section 375) and prohibiting sexual intercourse without consent while separated (Section 376A). Until the ‘Nirbhaya case’ in Delhi in 2012, the IPC’s immunity from challenges remained largely unchallenged. The ‘Nirbhaya case,’ involving the brutal gangrape and murder of a 23-year-old student, sparked national outrage and international attention. This incident propelled a significant reexamination of laws governing rape against women, culminating in the Justice Verma Committee’s recommendations for amendments to criminal law in 2013. The Verma Committee proposed the repeal of the exception to spousal abuse, but the Indian government staunchly declined this proposition. Consequently, the IPC’s stance on marital rape remained unchanged, leaving women in such situations devoid of legal protection. The persistence of this ‘freedom to sexually assault’ in the face of broader calls for legal reform and rejuvenation raises pertinent questions about the need for law revision and revitalization in India.

HOW RELIGION IS PRESERVING MARITAL RAPE

In India, religion presents a paradoxical role. While the country has a rich tradition of devotion to deities, religion often becomes the scapegoat for perpetuating repressive cultural norms, particularly those impacting women. This perpetuation and legitimisation of norms are deeply rooted in patriarchal structures. Senior legal figures, such as former Chief Justice Ranganath Mishra of the Supreme Court of India, noted the conflict in the treatment of women within religious contexts. Mishra observed a shift from women being revered as divine entities to their gradual sidelining, highlighting the need for recognition and empowerment.

Religion, intertwined with Indian customs, laws, and worldviews, often obstructs legal changes, especially in family and criminal law. During the formation of the Indian Constitution, religion was perceived as a conservative force that could impede reforms due to its entrenched position within Indian society. Consequently, the Indian Constitution adopted a secular stance. In the context of marriage, Hindu religious doctrines contribute to the prevalent belief that marriage is a sacred institution beyond the purview of democratic governance. The reluctance to address spousal abuse by the Indian government is attributed to the potential need for reforms in religious regulations, such as the Hindu Marriage Act of 1955, which dictates a woman’s duty to engage in sexual relations.

The reluctance for such reforms stems from the fear of destabilising the traditional ‘idea of marriage,’ which could strain the entire family structure. These debates highlight the conflict between two judicial obligations: the right to non-discrimination and equality on one side (Art 14, 15, 21, 51A(e)) and the preservation and protection of local religion and culture on the other (Art 25, 29, 51A(f)). However, this conflict isn’t unique to India alone. Hegemonic masculinity prevalent in various societies leaves a lasting impact on criminal laws, even in countries where spousal rape protections have been removed. The historical treatment of women as a form of property, similar to the notion of a daughter as “her husband’s estate,” persisted until the 19th century, portraying women as commodities passed from parents to husbands. These entrenched views continue to influence legal systems and societal perceptions across various cultures.

THE LEGAL SYSTEM: 

The advent of Public Interest Litigation (PIL) in the 1980s within Indian courts aimed to empower the public in defending their constitutional rights. This signalled judicial activism in India, intending to democratise the legal system and facilitate public influence for desired reforms. However, while PIL champions liberal social and legal change, its tangible impact on reshaping societal culture remains uncertain. PIL has highlighted inherent issues within the judicial system, particularly the boundaries of judicial participation in local politics, raising concerns about the potential for liberal judgments to undermine law and order, endangering democracy. In the context of sexual offences legislation, PIL has struggled to bring substantial changes. Efforts, like the Rit Institute’s petition challenging spousal rape exemption under Article 375 of the Indian Penal Code, were declined by the courts, citing precedents of similar dismissals. Marital rape immunity remains largely unchallenged in Indian High Courts. Judges often refrain from delving into such matters, asserting that these issues fall under the legislature’s purview. Cases alleging marital rape have been dismissed, with courts hesitating to acknowledge the concept of marital rape within the criminal justice system. Furthermore, law enforcement processes and actions require reforms to protect victims and prosecute perpetrators effectively. Cultural biases within law enforcement officials and judges pose significant barriers to justice for victims of marital rape, as seen in their reluctance to investigate or classify domestic violence as a crime. Differences in domestic abuse prevalence across India are linked to literacy levels, exemplified by Kerala’s lower domestic abuse rates attributed to higher literacy rates. States like Tamil Nadu showcase distinctive features, including women’s empowerment through education and matriarchal inheritance traditions, contributing to lower instances of abuse. The global movement for spousal rape legislation reform is gaining momentum, echoing the need for legal changes in various countries, including Kenya and Lebanon, as advocated by international bodies like the CEDAW Committee. The persistence of marital rape immunity perpetuates cycles of suffering for Indian women, impacting their physical, biological, sexual, and mental well-being. Overcoming these challenges demands revising the Indian Penal Code to align with both local and global legal norms, thereby eliminating archaic defences and empowering women as equal participants in society. Marital rape, often associated with the dominance and control over women, requires urgent legal reforms to eradicate this sanctioned abuse. 

 A CRUCIAL STEP BY THE JUDICIARY:

The recent judgment by the Gujarat High Court in the case of Nileshbhai Chauhan v. Registrar General R/SPECIAL CIVIL APPLICATION NO. 4024 of 2016 marks a pivotal statement concerning marital rape. The court’s assertion that “rape is a grave offense, even if committed by a husband on his wife” challenges the longstanding exemption provided under Section 375 of the Indian Penal Code, which shields a husband from punishment for sexual acts without his wife’s consent. This stance represents a significant departure from the historical exemption of marital rape and underscores the severity of sexual violence within marital unions. The court’s firm declaration that “rape is rape even if committed by a husband” aligns with the global acknowledgment of marital rape as a profound violation of human rights and a form of gender-based violence. The Gujarat High Court’s pronouncement has ignited conversations regarding the urgent need to address marital rape within India’s legal framework. It rekindles debates on the criminalization of marital rape and the inherent challenges faced by victims due to the lack of legal protection. This judgment stands as a momentous stride towards acknowledging the necessity of legal recourse for victims of marital rape, advocating for their safety and well-being within marital relationships.

PSYCHOLOGICAL & SOCIETAL IMPACT : 

The lack of recognition of marital rape in Hindu Marriage Laws has significant psychological and societal impacts on victims and families. Studies have shown that marital rape is linked to adverse psychological consequences, including depression, PTSD, anxiety disorders, and other mental health issues. Victims of marital rape often suffer in silence due to societal attitudes towards consent and gender roles, which are shaped and impacted by the absence of recognition within marital relationships. The cultural and societal influences that historically perpetuated the lack of recognition of marital rape have contributed to the normalization of sexual violence within marriage. Women in India have been historically viewed as subordinate to their husbands, with limited rights and autonomy. The lack of recognition of marital rape perpetuates cycles of abuse, hinders progress towards gender equality, and affects societal well-being. The absence of legal protection against marital rape also affects families, as victims may suffer in silence due to fear of social stigma and ostracization. The lack of recognition of marital rape can lead to a breakdown in marital relationships, affecting the well-being of children and other family members. 

Societal attitudes towards consent and gender roles are shaped and impacted by the absence of recognition of marital rape. The cultural and societal influences that historically perpetuated the lack of recognition of marital rape have contributed to the normalization of sexual violence within marriage. The lack of recognition of marital rape perpetuates cycles of abuse, hinders progress towards gender equality, and affects societal well-being. The lack of recognition of marital rape in Hindu Marriage Laws has significant psychological and societal impacts on victims and families. The absence of legal protection against marital rape perpetuates cycles of abuse, hinders progress towards gender equality, and affects societal well-being. Societal attitudes towards consent and gender roles are shaped and impacted by the absence of recognition of marital rape, perpetuating the normalization of sexual violence within marriage. The urgency of the issue demands immediate attention and action to ensure the safety and well-being of women in India. 

CONCLUSION: 

The absence of recognition of marital rape as a criminal offence in India. Marital rape, a heinous violation of human rights, continues to haunt numerous women in India despite the significant strides made in various legal systems worldwide. The historical roots of exempting husbands from rape charges, as traced through English common law, are stark reminders of the archaic perceptions surrounding marital relationships. However, global evolution, notably seen in England and Australia, showcases a gradual departure from this archaic immunity, emphasising the pressing need for reforms to align with contemporary societal views. India, marked by Lord Macaulay’s efforts in codifying the Indian Penal Code, witnessed a clash between cultural diversity and legal principles. While Macaulay’s intentions aimed at clarity and uniformity, critics highlighted the Code’s lack of sensitivity to local nuances, particularly evident in the archaic stance on sexual offences. Religion’s paradoxical role in perpetuating repressive cultural norms has hindered legal changes, especially concerning family and criminal law. The conflict between religious doctrines and constitutional rights underscores the complexity of the legal and societal debate. This dilemma extends beyond India, with entrenched perceptions of women as property affecting legal systems globally. The evolution within the Indian legal system, notably Public Interest Litigation (PIL), signifies a shift towards democratising justice. Yet, PIL’s impact remains ambiguous, raising concerns about its potential implications for law and order. The struggle to challenge marital rape exemptions, as seen in court dismissals and hesitancy to acknowledge this issue, underscores the significant barriers within the judiciary. The recent Gujarat High Court judgment stands as a beacon of hope, challenging the historical exemption and recognizing marital rape as a grave offence. This landmark stance, aligning with global perspectives, rekindles debates on criminalization and the urgent need for legal protection.

Psychologically and socially, the absence of recognition perpetuates cycles of abuse, hampers progress towards gender equality, and affects societal well-being. The psychological impact on victims, shaped by societal attitudes and cultural influences, is profound, necessitating immediate action to ensure women’s safety and well-being. The urgency of this issue calls for immediate reforms in the Indian Penal Code to align with contemporary global legal norms, eradicating archaic defences and empowering women as equal members of society. It’s imperative to break the silence surrounding gender violence and provide comprehensive legal protection to victims, ensuring a safer environment within marital relationships.

The crucial question in hand is how can legal reforms reconcile cultural values, religious doctrines, and contemporary human rights principles to create a fair and just legal landscape for all? The answer lies in a collaborative effort between lawmakers, judicial bodies, activists, and society at large to champion gender equality, protect human rights, and ensure justice for victims of marital rape.

REFERENCES: 

Judgements: 

1. Regina v Clarence. (1889). 22 Q.B.D. 23
2. RvR. (1991)
3. RvL. (1991). 174 CLR 379.
4. Nileshbhai Chauhan v. Registrar General

Books : 

1. Bronitt, S., & McSherry, B. (2010). Principles of criminal law (3rd ed.). Sydney: Thomson Reuters – access through Hein online.
2.  The Constitution of India 1949 (India)
3. Indian Penal Code 1860
4. Hindu Marriage Act of 1955

Paper & site : 

1. This article was originally written “Marital rape and its impact on the mental health of women in India: A systematic review” – Nandini Agarwal, 

The link for the same is herein.- https://journals.plos.org/globalpublichealth/article?id=10.1371%2Fjournal.pgph.0000601   

1. This article was originally written “Marriage or License to Rape? A Socio-Legal Analysis of Marital Rape in India” – Vidhik Kumar, The link for the same is herein.- https://digitalcommons.uri.edu/cgi/viewcontent.cgi?article=1276&context=dignity 
2. This article was originally written- “Criminalisation of Marital Rape” on July 20, 2023 in THE HINDU -The link for the same is herein.-  https://pwonlyias.com/current-affairs/criminalisation-of-marital-rape/ 
3. This article was originally written “Marital Rape: Historical and Comparative Analysis” – Sonal Garg & Nivedita Singh, The link for the same is herein.- https://mslr.pubpub.org/pub/vlo7anq8/release/1 
4. This article was originally written “The Gap in Marital Rape Law in India:Advocating for Criminalization and Social Change ” – Krina Patel, published on Fordham International Law Journal Volume 42, Issue 5, The link for the same is herein.-  https://core.ac.uk/download/pdf/216959479.pdf 
5. This article was originally written and published on Geeks for Geeks – “Marital Rape in India: History, Laws, and Challenges” The link for the same is herein.-  https://www.geeksforgeeks.org/marital-rape-india/ 
6. Gujarat HC judgement : Nileshbhai Chauhan v. Registrar General- 

The link for the same is herein. https://www.livelaw.in/high-court/gujarat-high-court/perform-puja-cow-dies-amc-gujarat-high-court-denies-mistreatment-impounded-cattle-245239?infinitescroll=1