Without mincing any words and coming straight to the heart of the matter, let me say this from the bottom of my heart that I fully support the burgeoning demand for making marital rape an offence. A rape is a rape. Just because a man has married a woman that by itself does not confer the legitimate right to man to have sex with woman against her wish by forcing her in anyway. On the contrary, husband who is bound to protect his wife if himself resorts to marital rape then the most strictest punishment for life term must be imposed straightaway! But what we see on ground is just the reverse! The husband is given complete impunity if the wife is above 15 years of age. This must be changed right now by promptly amending the relevant Sections of IPC!
It is rather most unfortunate that in India a woman is regarded as personal property of man who has been vested with the marital right to rape her whenever he likes and as many times as he want. Nothing on earth can be more unfortunate than this! Worse still, a woman has no remedy and if she dares to go to police station, she is laughed at by policemen who say that:
Why did you marry him if you don't want to have sex with him?
This male dominated patriarchal medieval mindset must change if our nation is to progress! Our laws must be suitably amended and marital rape must be made a criminal offence which must contain more punishment than even rape because here a husband betrays the sacred trust created by the marriage and so must be punished most harshly! There can be no exception and zero tolerance has to be demonstrated towards not only rape but also marital rape!
It is in this context that we have to see and appreciate what a trial court in Delhi while emphasizing the need for a law to recognize marital rape as a crime said some years back that lakhs of women are made to suffer by their husbands. Additional Sessions Judge (ASJ) Kamini Lau observed that absence of a provision to deal with marital rape as an offence exposes double standards and hypocrisy in law which has failed to recognize such incidents actionable offences. Lau was at great pains to note that:
It is unfortunate that we are yet to recognize woman's right to control marital intercourse as a core component of equality. The shortfall in law was gross violation of the acknowledgement of a women's right of self-determination i.e. control on all matters relating to her body and criminalization of marital rape.
Simply put, the court made the observations while rejecting the bail application of a Delhi resident, Praveen Arora who was accused of sodomising his wife. The wife alleged that her husband used to rape and commit unnatural sex with her. She further said that the man showed her adult videos and bit her. Denying bail to the man, the court said, There appears to be something seriously wrong with the accused and our society ...with sexual perversity pervading the system where lakhs of women suffer this kind of sexual violence and perversity in silence.
To be sure, the court also cited United Nations Report – 'All Forms of Violence against Women' – which said 52 states have explicitly outlawed marital rape. The ASJ Kamini Lau made a scathing attack on this marital rape not being punishable in India by saying that:
Non-recognition of marital rape in our nation set upon the bedrock of equality is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women...it is rape when a man forces himself sexually upon a woman whether he has a licence by marriage law to do it or not. It is the need of hour to seriously recognize and address this problem. There can be no denying what ASJ Lau has said rather I would say that it is high time and now marital rape must be made an offence with the strictest punishment, to say the least.
Throwing out Praveen Arora's bail application, court said it could not allow him to get away with such perverse actions, which had caused physical and psychological damage to the young girl who was married for only eight months on account of his abusive relationship. Activists and lawyers agree with Lau. Senior advocate Meenakshi Arora, who is best known as the lawyer who propelled forward the ground breaking Vishaka guidelines in the Supreme Court minced no words in stating that:
A lot of violence exists in marriages, mostly in the form of spousal rape. We need to criminalise this so that the victims have a name for what they go through, so they have somewhere to turn to when they've been wronged.
In March 2014, Parliament rejected the Verma Committee's proposal to criminalise marital rape . A panel of lawmakers said the proposed marital rape law has the potential of destroying the institution of marriage. Women's rights activist Kalpana Vishwanath believes the decision could be attributed to patriarchal anxiety that stops people from taking it up as a serious issue.
While craving for my esteemed readers exclusive indulgence, let me tell them that the Verma Committee Report headed by former CJI late Justice JS Verma recommended strongly that the exception for marital law be removed.
It also recommended that:
- The law ought to specify that:
- A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
- The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
- The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.
According to the United Nations Population Fund, marital rape is the most common form of violence against women in India. Two-thirds of married Indian women surveyed by the UN said their husbands had forced them to have sex on numerous occasions . This must end now!
There are 104 countries that have outlawed marital rape. Why are we among the few nations like Yemen, Iran, Libya and Sudan where marital rape is no offence and woman has no option but to submit to rape? The present legal system in India does not recognize rape as crime except when a man rapes his wife who is below 15 years of age! This is most outrageous and deserves to be discarded right now!
Marital rape became a crime in every state in USA by 1993. Most states of USA penalize marital rape like any other crime with fines that could exceed $ 50,000 and prison terms varying between several years and life in prison without parole. Marital rape was made a crime in Britain in 1991. The 2003 Sexual Offences Act clarified the law, giving consent a legal definition in England and Wales. Under the law, the accused would face punishment of five years in prison.
We also cannot be oblivious of the irrefutable fact that many other countries like Canada, New Zealand, South Africa, France, Israel, Poland, Turkey, Malaysia and, this year, Bolivia too have all criminalized marital rape. In Bhutan, marital rape is considered an offence but not a serious one. It is punishable with a minimum prison term of one year and a maximum term of three years!
To put things in perspective, we have seen how just recently on January 7, 2022 in a bunch of pleas titled RIT Foundation v. UOI and other connected matters seeking criminalization of marital rape in India one of the petitioners submitted before the Delhi High Court that marital rape is the biggest form of sexual violence against women which is never reported. The petition against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals. It is prayed that the exception in the Indian law that does not consider sexual intercourse with a minor wife, above 15 years of age, as rape be struck down!
It must be mentioned that senior advocate Colin Gonsalves while appearing for petitioner Khushboo Saifi submitted before a Bench of Delhi High Court comprising of Justice Rajiv Shakdher and Justice C Hari Shankar stating alarmingly that:
This is probably the biggest form of sexual violence against women in the matrimonial home, in the confines of the home, unrecorded, unreported, there is no FIR. If one counts the total number of married men and married women, how many times this rape takes place within an institutional marriage, it's a huge figure which is never reported or analyzed or studied.
While making the said arguments, Colin Gonsalves refered to the factual background of the case by apprising the Court that the petitioner, a 27 year old woman was brutally raped by her husband after which she sustained terrible injuries as an outcome. Gonsalves was at pains while lamenting that:
Very often, there are cases of women of marital rape, nobody will help them, neither their parents nor the police. Police will laugh at them saying how can you come and file an FIR against your husband.
As it turned out, Gonsalves took the Court through various international judicial decisions on marital rape starting from the House of Lord judgment in the case of R v R. In the said case, the House of Lord had overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse.
Furthermore, Gonsalves also referred to the famous case of CR v United Kingdom wherein the European Commission of Human Rights had held that:
A rapist remains a rapist regardless of his relationship with the victim.
Going ahead, Gonsalves also relied on the Nepal Supreme Court judgment delivered on marital rape wherein it was held commendably that:
A marriage does not mean women to turn in to slaves. Thus, women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self-respect and right to self-determination.
Most brilliantly, most remarkably and also most significantly, it must be mentioned that eminent and senior advocate of Supreme Court – Colin Gonsalves specifically emphasized that the Nepal Supreme Court directed the Parliament to introduce a Bill for bringing necessary amendments as a solution with regard to marital rape, taking into account the special situation of marital relationship and position of the husband. He very eloquently, elegantly and effectively stated sagaciously that:
They follow different proposition. If they find that a statute is not right, they issue directions to the Parliament to make an appropriate law. India takes it for granted that the Courts cannot direct an appropriate statute be enacted but this is not a universally followed procedure. His point is valid! The hearings will continue now on January 10, 2022.
To put it differently: Why are we splitting hairs on making marital rape a punishable offence? Why can't we go headlong with the proposal to make marital rape an offence with strictest punishment? Domestic violence in any form is most reprehensible and completely unacceptable! I earnestly call upon Centre and our lawmakers to immediately implement the proposals of Justice Verma Committee report and make marital rape punishable in same manner as rape with no ifs and buts whatsoever!
There can be no gainsaying that every man has the birth right to do what he wants to do with his own body except obviously the right to commit suicide and here too Centre is now taking steps to decriminalize it so that committing suicide also becomes the birth right of not only man but also every person including woman! But no man including husband has the right to rape a woman against her will and even marriage confers no such right. It is only with her consent that he has the right to have physical relationship with her and not without her consent !
To say the least, those who fear profoundly that disgruntled wives would severely misuse this provision like they say has been the case with Section 498A must remember that just because a law can be misused is no ground for not making a law! I do, however, agree that some safety clauses must also be inserted like if the complaint is found to be false or malafide, woman can be fined or jailed or both! This would go a long way in checking false complaints and in saving the time of courts and unnecessary harassment of innocent husbands!
In conclusion, it has to be conceded that under no circumstances can marital rape be ever condoned! If it is not made even now the most heinous offence or at least an offence as has been demanded by the petitioners from the Delhi High Court then we have to definitely blame our Courts also apart from our lawmakers for condoning it! Let's hope fervently that marital rape is outlawed at the earliest so that no husband can ever under any circumstances claim to have a complete blank cheque to commit marital rape on her wife with full impunity!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
