Truth: Rape does indeed happen between girlfriend and boyfriend, husband and wife. Men who force their girlfriends or wives into having sex are committing rape, period. The laws are blurry, and in some countries marital rape is legal. But it still is rape.- Patti Feuereisen, Invisible Girls: The Truth about Sexual Abuse.

Marriage is a sacred social institution in India. The bond built between the husband and the wife is said to be that which represents eternity and a triumph of love and respect. A new concept termed Marital Rape has been the topic of debate in recent times. The patriarchal society has set up a belief that women are men's property.Violence against women in society is increasing at an alarming rate and now they are not even safe in their own house.

Marriage has now become an instrument, a license to rape. How can rape within the marital bond be justified? Rape is rape. How can the institution of marriage be called a sacred one if the wife suffers both physically and mentally? This paper is an attempt to focus on the definition of marital rape, the existing laws in India, the international scenario and an attempt to analyze through the various cases the question whether or not criminalizing marital rape in India is the need of the hour.

Introduction:
Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces.- F. H. Batacan

In order to understand the meaning of marital rape it is important to look into the meaning of the term rape. Etymologically, the word rape derives from the latin verb rapere, which means to seize or take by force. According to the Cambridge Dictionary the term rape means to force someone to have sex when they are unwilling, using violence or threatening behaviour.

Under Section 375 of The Indian Penal Code[1], a man is said to commit rape if he penetrates his penis or inserts any object or a part of the body or manipulates any part of the body of a woman so as to cause penetration or applies his mouth into the vagina, anus, urethra of a woman or makes her to do so with him or any other person:

1. firstly against her will
2. secondly without her consent,
3. thirdly with her consent-by putting her or any person in whom she is interested, in fear of death or of hurt or when the man knows that he is not her husband and that her consent is given because she believes herself to be lawfully married or 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,
4. fourthly with or without her consent, when she is under eighteen years of age,
5. fifthly when she is unable to communicate consent.

Explanation 2:
to the section defines consent as 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 and Exception 2 to the section 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.

Marital rape refers to rape within the marital wedlock committed by husband by physical force or threat to his own wife without her consent. It is assumed under the law that marriage means the wife giving her consent to all matrimonial obligations and the consent is an implied consent every time and that the wife cannot at any time, refuse to have sexual intercourse with her husband. Though marital rape is a depiction of masochism, it still exists under the shield of marriage.

In simple words marital rape means to force the wife when she is unwilling to have sexual intercourse with her husband. It is an unwanted sexual intercourse that involves the use of force and lack of consent. It does not come under the purview of Section 375 due to exception 2 and hence in India rape by a stranger is an offence under the criminal law but rape committed by a husband on his wife is not an offence.

In the words of Justice Mathew Hale of England[2]- The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.

Marital Rape and Indian Legislations:

Though the section on rape under Indian Penal Code does not punish the man committing rape within the marital bond there are other laws to which a married woman can take recourse. The explanation to Section 498A of the Indian Penal Code states cruelty as any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman and whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine[3].

Cruelty can be invoked as a ground for divorce, Section 198(6) of the Criminal Procedure Code, 1973 states that no court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence[4].Wife above the age of fifteen years is not under the ambit of law.

Protection of Women from Domestic Violence Act, 2005:

Women have been the subjects of violence from time immemorial and there is no doubt that Indian legislations particularly Section 304B and 498A of IPC along with Articles 14,21 and 39(a) of the Constitution have been enacted for the protection of women from myriad violence. The present Act is to provide for more effective protection of women's rights who are victims of harassment of any kind inside the four walls of the house. According to Section 3(a) of the Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it- harms or injures or endangers the health, safety, life, limb, or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse.

Explanation-I

1.  states physical abuse as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force,
2. sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman[5]

This Act provides civil remedies to a woman against such violence. The argument put forth by those opposing a new law for marital rape is that the aggrieved women could take shelter under this Act for any kind of violence as this Act provides relief for even lesser offences such as insults, name calling etc. The question to ponder here is whether marital rape can be considered on par with any kind of sexual violence.

POCSO Act and Exception 2 of Section 375 of The Indian Penal Code:

Section 42-A was inserted in the POCSO Act by an amendment made on 3rd February,2013 that the said Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and would override the provisions of any other law including.

The Indian Penal Code to the extent of inconsistency[6].It follows from this that even though the IPC decriminalizes the marital rape of a girl child, the husband of the girl child would nevertheless be liable for punishment under the provisions of the POCSO Act for aggravated penetrative sexual assault[7].For the purposes of the Act a child is a person below the age of 18 years. Penetrative sexual Assault [8] and aggravated penetrative sexual assault are by and large similar to Section 375 and 376 of IPC. Section 3 of the Act is identical to the opening portion of Section 375 of IPC whereas Section 5 of the Act is similar to Section 376(2) of the IPC.

Exception 2:
to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own wife not being under the age of 15 years of age, not an offence, is not found in any provision of the Act. Therefore this is the main inconsistency between the Act and IPC. So according to the Amendment, the Act will prevail over IPC and Exception 2 in so far as it relates to children, is inconsistent with the Act[9]. But the law is still silent over the rape committed by a husband on his wife who is 18 or above 18 years of age.

Judicial Stand in Independent Thought v Union of India:

The Supreme Court through Justice Madan B Lokur held that the sexual intercourse between a man and his wife who is between 15 and 18 years of age is rape. Exception 2 to Section 375 of The Indian Penal Code, 1860 creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any clear objective sought to be achieved.

The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. Such distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution and our commitments to international conventions.

It is also contrary to the philosophy behind some statutes-[Protection Of Children from Sexual Offences (POCSO) Act,2012,The Indian Penal Code,1860,Juvenile Justice (Care and Protection Of Children) Act,2015,Protection Of Human Rights Act,1993,Protection Of Women from Domestic Violence (D.V) Act,2005, Prohibition of Child Marriage Act,2006][10].This landmark decision by the Supreme Court of India is welcome but in fact does not comment on the rape committed by a husband on his wife above the age of 18 years.

The Provisions under the Indian Constitution:

Part III of the Indian Constitution guarantees all the citizens of India irrespective of their caste, race, sex, religion, place of birth etc. certain fundamental rights. Article 14 provides equality before the law and equal protection of the laws.

For the application of the underlying principle reasonableness must be followed in the legislative classification of the laws. The two conditions to be relied upon, in this regard are intelligible differentia and rational nexus[11]. Exception 2 to Section 375 discriminates against a married and unmarried woman violating her fundamental right under Article 14 of the constitution.

Article 21 of the Constitution guarantees protection of life and personal liberty. The expression personal liberty is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19[12].It includes, writes Tripathi all those innumerable aspects of personal liberty which it is impossible exhaustively to enumerate[13]

It has been quoted by the Supreme Court of India in Francis Coralie Mullin v Union Territory of Delhi[14] that any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the ambit of Article 21.The term life used here meant something more than mere animal existence[15].

In Bhodhisathwa Gautham v Subhra Chakraborthy[16] the Supreme Court held that women also have the right to life and liberty; they also have the right to be respected and reacted as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Rape is a crime against basic human rights and is also violative of the victim's most cherished of the fundamental rights, that is the right to life contained in Article 21.A married woman too has the right to live with human dignity,right to privacy and rights over her own body. Marriage can in no way take away these rights. The right to privacy is available even to a woman of easy virtue and no one can invade her privacy[17].

Explaining the right to privacy in R Rajagopal v State of Tamil Nadu[18], the court held that it is the right to be let alone and a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.

In Suchithra Srivastava v Chandigarh Administration[19] the Supreme Court has held that personal liberty in Article 21 includes the right to make reproductive choice (to produce child or not to produce). In view of this judgement on women's right to privacy, dignity and bodily integrity should be respected.

In the landmark judgment, a bench of nine judges of the Supreme Court in Justice K.S Puttuswamy v Union Of India[20] held right to privacy as a fundamental right and includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations.

The Controversial PIL to Criminalize Marital Rape:

Many lawyers and activists are of the opinion that the Exception 2 of Section 375 of the IPC is arbitrary and unfair to married woman. This so called 'discrimination' created between married and unmarried women has been challenged in the Delhi High Court by a clutch of petitions, including that of the All India Democratic Women's Association, RIT Foundation and Forum to Engage Men.

This petition was to declare the said exception as unconstitutional. An NGO- Men's Welfare Trust representing the men victimized by the alleged misuse of gender laws contended that the issue affected a large number of men at the hands of women who file false rape and domestic violence cases.

The plea also cited the statistics of National Crime Record Bureau (NCRB), which said that 62,000 married men commit suicide every year, which is more than double the suicides by women, with domestic including marital issues being the single largest reason[21].The Union government's submission in the case states the following regarding the criminalization of marital rape:

1. It may destabilize the institution of marriage apart from being an easy tool for harassing husbands,
    
2. what constitutes marital rape and what would constitute non marital rape needs to be defined precisely,
    
3. what evidence will the court rely upon as there can be no lasting evidence in case of sexual acts between a man and his own wife
    
4. that the Law Commission in its 172 Report titled Review of Rape Laws and the Department Related Parliamentary Standing Committee on Home Affairs in its 167 Report examined the matter and did not recommend the criminalization of marital rape.
   
   Even though the Justice J.S Verma Committee in its Report titled Amendments to Criminal Law recommended that the exception be removed, it also pointed out that it is important that the legal prohibition on marital rape is accompanied by changes in the attitude of prosecutors, police officers, and those in society generally. Thus merely deleting exception 2 of Section 375 may not stop marital rape. Moral and social awareness play a vital role in stopping such an act.
    
5. the fact that the other countries have criminalized marital rape does not necessarily mean that India should also follow the same. There are various factors that revolve around this issue and all these have to be considered before arriving at the decision,
6. that the criminal law is in the concurrent list and implemented by the States.

There is vast diversity in the cultures and hence it is important to know the opinion of these States[22].

The Delhi High Court in a historic statement clarified that marriage does not entail a natural lease of life-long consent to have sex or demand it from your partner. The court ruled that in a relationship like marriage, both men and women have a right to say no to physical relations, further stressing that being married does not mean the wife is always ready for sex. Also expanding the scope of rape to non-consensual sex within marriage, the bench further deemed it unnecessary to look for physical injuries and force when a victim accuses their spouse of rape.

However, striking down the protection that Section 375 offered to men would lead to the creation of a new offence, which does not fall within the court's purview but is a matter of legislation[23].Another plea was filed by an advocate, Anuja Kapur in the Supreme Court of India seeking a direction to the Centre to frame appropriate guidelines for registration of FIR for marital rape and frame laws for making it a ground of divorce.

The plea said that there is a lot of confusion with the concerned authorities about the law under which they should register an FIR related to marital rape. There should be clear guidelines for registration of the case of marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the concerned authorities can be assigned and penalties and punishments be awarded to safeguard the fundamental right guaranteed by the Constitution and dignity of a married woman.

The plea also said that since marital rape at present is not a crime, there is no FIR of marital rape registered in any police station. Instead the police push the woman to compromise the matter to maintain the sanctity of the marriage between the victim and the husband.

As marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937 and Special Marriage Act, 1954, it cannot be used as a ground for divorce and cruelty against husband.

But the SC asked the petitioner to approach the High Court for relief[24].But the High Court also did not entertain the petition saying that it is the domain of the legislature and not the judiciary[25].It is very tragic to note the take of the government and the judiciary regarding marital rape. It really reveals the true nature of the patriarchal Indian society.

International Scenario:
Marital Rape is a serious offence committed by a husband on his wife without her consent. It is a social crime that has existed for years throughout the world. After analyzing the drastic effects of marital rape, many countries of the world have come a step forward in criminalizing the offence. Marital rape is illegal in eighteen American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia.

In USA, marital rape is illegal in all 50 states, though the details of the offence vary from state to state. Reforms in this subject matter began in the mid-1970s with the criminalization of marital rape. The earlier laws of the 1970s often required the husband and wife to no longer be living together for marital rape charges to be brought. The case in the United States that first challenged this cohabitation clause was Oregon v. Rideout in 1978[26].

The husband was acquitted in this case but this paved way for reforms .By 1993 marital rape was a crime in all 50 states. Still, in the 1990s, most states continued to differentiate between the way marital rape and non-marital rape were viewed and treated. The laws have continued to change and evolve, with most states reforming their laws in the 21st century. But there are still states, like South Carolina, where marital and non-marital rape are treated quite differently under the law [27].

In the United Kingdom, the case of R v R[28] which was heard in the House of Lords in 1991 changed the law to the extent that it determined that under UK law it was possible for a man to rape his wife. The courts ruled that even within a marriage, any non consensual sexual activity is rape. It was further held by the court in R v Graham L[29] and R v C [30]that the man may be properly convicted of raping his own wife even though the rape incident may have occurred much earlier and it does not offend section 7 of the European Convention which bars the retrospective operation of the penal provisions.

The updated General Sentencing Council guidelines, which came into force on 1st April 2014, provide the offence range and suggested sentences for the offence of marital rape. Sentences can range from 4-14 years, depending on the specifics of the case, alongside any mitigating or aggravating factors. Life imprisonment can be handed out if the situation demands[31].The international scenario conveys that the law and judicial decisions awarded in these countries makes the situation a little better than that existing in India.

Conclusion :Do we need a separate and a new law?

It is high time that a new law should be enacted for criminalizing marital rape. But in the recent years various High Courts as well as Supreme Court have passed several judgments expressing serious concern at the growing and widespread misuse of the current women-centric laws, especially Section 498A of IPC.

In Sushil Kumar Sharma v Union of India[32]the Supreme Court said, We come across a large number of such complaints which are not even bonafide and are filed with oblique motive…

In Arnesh Kumar v State of Bihar[33],the Supreme Court directed the police and magistrates that due process be followed before arrest or detention. It ruled that no automatic arrests or detention be made in such offences. The ease with which 498A has lent itself to abuse for extortion, blackmail and other malafide purposes made the Supreme Court to label it as an instrument of legal terrorism[34].

The Delhi High Court on hearing the petition for criminalizing marital rape stated that misuse cannot be an argument for not criminalizing the offence[35].There is also an apprehension that marital rape law would be a lethal weapon in the hands of women and would invite disaster and social chaos. But rampant violence against women cannot be tolerated. Rape is rape, whether it is committed by a stranger or the woman's own husband.

There is something called consent and respect in a marital relationship, which cannot be ignored. Sexual violence has become the villain in the room. Husbands being out of the purview of the rape laws gives them the benefit of establishing their superiority and making woman their prey inside the bedroom.

The archaic belief of considering women as property must end. Violence within marriage and that too rape destroys the whole concept of sanctity of marriage and hence the perpetrators of such crimes must be punished.

Endnotes:
1.Prof.S.N Misra,The Indian Penal Code,Central law publications,20th edition,reprint 2017
2.History of the Pleas of the Crown, Vol. I, at 629 (1736) quoted in Rape – A Legal Study by National Commission for Women, 39(2000).
3.Misra,Supra 1
4.Rathanlal&Dhirajlal,The Code Of Criminal Procedure, Lexis Nexis,21st edition,reprint 2016
5.P.K Das,Universal's handbook on protection of women from domestic violence act and rules, Universal law publishing Co.Pvt.Ltd.,2007
6.Independent Thought v Union Of India AIR 2017 SC 4904
7.POCSO Act, Section 5,2012
8.POCSO Act, Section 3,2012
9.Shankarappa,Protection Of Children from Sexual Offences Act,2012,Lawyers Law Book, 2018
10.AIR 2017 SC 4904
11.The test was clearly expressed by Das J in State of West Bengal v Anwar Ali AIR 1952 SC 75 and has been repeated in all many cases: Budhan Choudhary v State of Bihar AIR 1955 SC 191
12.Bhagwati J in Maneka Ghandhi v Union of India AIR 1978 SC 597
13.P.K Tripathi, Spotlights on Constitutional Interpretation(1972) 166.He adds: The right to go to bed when one likes,to eat, dress or walk the way one likes,to speak the language one likes,in short,to do or not to do anything the way one likes.
14.AIR 1981 SC 746
15.Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295,Munn v Illinois,(1876) US 113
16.(1996) 1 SCC 490
17.State of Maharashtra v Madhulkar Narain AIR 1991 SC 207
18.AIR 1995 SC 264
19.AIR 2010 SC 235
20.AIR 2017 SC 4161
21.PTI, Delhi High Court to Hear NGO's Plea Opposing Marital Rape, Indian Express,August 28, 2017, PTI, Delhi High Court to Hear NGO's Plea Opposing Marital Rape, Indian Express,August 28, 2017, 9:43:19 pm, https://indianexpress.com/article/india/delhi-high-court-to-hear-ngos-plea-opposing-marital-rape-4818046/,accessed on 1 March 2020
22.Jibby J. Kattakayam, What the Union Government's Submissions on Marital Rape in the Delhi High Court Reveal,August 30,2017,6:49pm https://timesofindia.indiatimes.com/blogs/jibber-jabber/what-the-union-governments-submissions-on-marital-rape-in-the-delhi-high-court-tell-us/,accessed on 2 March 2020
23. Prarthana Mitra, Married partners can say no to physical relations, observes Delhi High Court, July 19,2018,https://qrius.com/married-partners-can-say-no-to-physical-relations-observes-delhi-high-court/,accessed on 6 March 2020
24.PTI,Marital Rape As Ground for Divorce; SC Turns Down Petitioner And Asks to Approach HC,News18,July 1 2019,6:05pm, https://www.news18.com/news/india/marital-rape-as-ground-for-divorce-sc-turns-down-petitioner-and-asks-to-approach-hc-2212171.html,accessed on 8 March 2020
25.PTI,Delhi HC Declines Plea to Direct Centre to Make Marital Rape a Ground for Divorce,News18,July 9, 2019, 2:20pm, https://www.news18.com/news/india/delhi-hc-declines-plea-to-direct-centre-to-make-marital-rape-a-ground-for-divorce-2223529.html,accessed on 8th March 2020
26.PTI,Delhi HC Declines Plea to Direct Centre to Make Marital Rape a Ground for Divorce,News18,July 9, 2019, 2:20pm, https://www.news18.com/news/india/delhi-hc-declines-plea-to-direct-centre-to-make-marital-rape-a-ground-for-divorce-2223529.html,accessed on 8th March 2020
27.Wikipedia,The free encyclopedia,Marital rape in USA,https://en.wikipedia.org/wiki/Marital_rape_in_the_United_States, accessed on 9 March 2020
28.0(1991) 93 Cri App R 1
29.2(2003) EWCA Cri 1512, May 7, 2004
30.3(2004) 2 Cr App R. 15
31.Nick Titchener, Marital Rape Law in the UK: what is it ?6th June 2019, https://www.lawtonslaw.co.uk/resources/what-are-the-legal-penalties-for-marital-rape/,accessed on 9 March 2020
32.2005(6) SCC 281:AIR SC 3100
33.AIR 2014 SC 2756
34.Madhu Purnima Kishwar,Gender Justice and The Feminazi,The Week,September 14,2017
35.PTI,Misuse Can't be an Argument For Not Criminalising Marital Rape, Says Delhi High Court,News18, January 15, 2018,7:32 pm https://www.news18.com/news/india/misuse-cant-be-an-argument-for-not-criminalising-marital-rape-says-delhi-high-court-1633015.html, accessed on 10 March 2020

Written By: Rana Banu, IV year Student, SDM Law College, Mangalore, Karnataka