The Delhi High Court and the entire nation seem to be at the crossroads regarding the contentious issue of marital rape. This matter came to our attention last year when the Chhattisgarh HC discharged a person of the offence of rape but upheld charges under Section 377 of the IPC for “unnatural sex”.
Looking through the legal lens at present, Section 375 of the IPC defines the offence of rape of a woman as any “sexual intercourse without her consent”. It goes on to elaborate how the consent has to be well-informed.
However, it also goes on to make an exception that a man who has non-consensual sexual intercourse with his wife, not being under the age of 15 years, is said to not commit rape.
This exception grossly violates Article 14 of the Indian Constitution which guarantees equality before law to every person. Article 15 further states that there shall be no discrimination on the basis of religion, race, caste, sex, place of birth, etc.
Clause 3 of the same article advocates for special provisions for protecting the interests of women and children. These aspirational provisions make us believe that their violation would be met with strong resistance from the state. However, that seems a distant reality.
The law that was once devised with the intent of promoting women’s welfare has been in fact aiding their oppression for far too long. Not bringing marital non-consensual sexual intercourse under the ambit of rape brings to light this systemic deprivation of women of their personal identity and autonomy over their bodies, merely reducing them to someone’s wife, daughter, etc.
This law was passed down from the British, who amended and criminalised the offence way back in 1991. It is, in fact, a criminal offence in more than 130 countries around the world.
The marital relationship between the victim and the accused should not be a valid defence for an offence of rape. From our standpoint, conjugal rights and the criminalisation of marital rape are at odds with each other. The restitution of conjugal rights gives a spouse the right to demand sex in their marriage.
Thus, if a woman denies her husband’s rights by refusing to engage in sexual acts, it can be a valid ground for granting divorce. In the groundbreaking judgment of Joseph Shine vs Union of India, the Supreme Court decriminalised adultery and quashed the notion that a wife is a husband’s property.
According to the NJAC rulings, courts in India have legislative powers when there exists a statutory vacuum in our legal system. However, this is an overextension of their interpretation of powers. Courts can only decriminalise certain offences but not create new ones. But striking down this exception can forge a path to the criminalisation of marital rape.
The Delhi government has submitted before the HC Bench that a court does not have the power to create new offences even as it argued that marital rape is treated as a crime of cruelty in India, which can be prosecuted under charges of domestic violence under the IPC.
Under the present circumstances, cases of marital rape are registered under the Domestic Violence Act, 2005, or Section 498A of IPC, cruelty by husbands or in-laws. In the Domestic Violence Act, criminal penalties are nowhere near that for the offence of rape. The Domestic Violence Act registers cases of marital rapes under “sexual abuse” only.
So, while criminalising this offence is most desirable, it comes with its own set of challenges. While the criteria for determining the charges of rape should be the violation of consent, it is also true that the testimony of the victim cannot be the only evidence.
For the legal system to hold someone guilty, the commission of that offence has to be proved beyond reasonable doubt. Those who argue against the criminalisation of marital rape and its classification as a separate offence believe that rampant misuse of the law coupled with the infamous delays of our judicial system would lead to an easy way to incriminate innocents for vengeance and vendetta.
Nonetheless, they must look at the data by the NCRB that the conviction rate for the offence of rape is under 30%, also keeping in mind that most of the incidents go unreported.
Besides, the accused has the right to legal representation and present evidence that is contrary to the complainant’s claim. Considering even the worst-case scenario when the chargesheet has been filed, the accused has the right to file an application for the discharge of such a chargesheet and stop the court from framing charges. The accused even has the right to approach the sessions court. Section 482 of the CrPC can be used to quash an FIR even before trial, given that necessary evidence is provided.
Misuse of the law is not limited to the dowry provisions. In fact, it extends very well to other sections of the IPC. However, one of the general legal principles followed around the world is that a law, if made to protect some, cannot be discredited solely on the grounds that it could be misused.
The UNCEDAW, the 172nd Law Commission Report and the Justice J S Verma Committee have also recommended marital rape’s criminalisation. The lack of a proper framework for executing such a law is a hindrance to justice, and inspiration from other legal systems could be of great help.
Abhinav Narayan Jha
Advocate based in New Delhi
Shambhavi Suman
Legal scholar