The late Justice VR Krishna Iyer had emphasised the importance and the interpretation of the term Rule of Law. According to him, Rule of Law must run closely to the Rule of Life. It cannot go off at a tangent from life’s problems. It cannot be permitted to be static, as laws have to change, as the society changes dynamically and the dynamism in the society has to be reflected in laws governing the society.
An abhorring response given by Union Minister of State for Home Affairs Haribhai Parathibhai Chaudhary in Parliament to an extremely pertinent and sensitive issue of criminalising marital rape and bringing about suitable amendments to the existing laws has snowballed into a major debate in the country. The debate focusses on whether “marital rape” should be construed as a criminal offence or whether no such concept of rape in a marriage, of a wife by the husband, exists in the Indian context of marriage, unlike in some other countries. The minister said that marriages in India are a sacrament and hence concepts such as marital rape do not exist; thereby implying that it is the bounden duty of a woman to submit herself silently to the sexual demands of her husband.
The codification of the various marriage laws and subsequent amendments have been carried out from 1955 onwards. However, despite several relevant amendments to marriage laws, including the present Marriage Laws Amendment Bill, 2012 (which is under consideration), the concept of marital rape has not featured anywhere even as a standalone ground for divorce for a wife, let alone criminalising it.
The Protection of Women from Domestic Violence Act (PWDV Act) enacted in the year 2005 has taken great pains to define violence in its myriad forms. However, in all this, a forcible sexual intercourse by a man with his wife during the subsistence of their marriage, against her will, is yet not considered as a crime against the wife perpetrated by the man.
Later amendments were brought about in the year 2013 in criminal laws wherein sexual assault, criminal force, gang rape, voyeurism, stalking, etc, were criminalised. Most of these amendments were carried out in pursuance to the recommendation of the Justice JS Verma (Retd) committee.
The Verma committee, which had the best legal brains in Justice Leila Seth (Retd) and Gopal Subramaniam, which was constituted after the horrific 16 December 2012 New Delhi gangrape, strongly recommended marital rape as a criminal offence and further stated that marriage should not be a mitigating factor in reducing the sentence of rape. The committee had cited laws in Canada, South Africa and Australia and also the judgment of the European Commission of Human Rights to emphasise that marital rape is an offence. Such strong recommendations were not included in the criminal amendments. In fact, marital rape has been exempted despite several amendments to Section 375 of the IPC, but rape of a judicially separated wife was criminalised under Section 376B of the IPC.
The question that arises is why marital rape should be criminalised. Historically, the concept of rape in a marriage did not exist due to the belief passed down over generations that a wife is duty-bound to offer herself for bodily pleasures to her husband and a denial on her part meant “dereliction of her duty” as a wife. However, such archaic notions cannot survive in the wake of Articles 14 and 21 of the Constitution of India. Article 14 talks of Right to Equality and this right in the present context would also mean and include the right to have equal status in marriage. Article 21 emphasised the right to life and this right to life will necessarily have to mean the right to lead one’s life with dignity in a safe and secured environment (including in the marriage).
Another relevant question that arises is that what are the options available to the husband in a marriage when his wife refuses to have normal sexual relationship with him. A healthy and wholesome sexual relationship is considered to be an integral part of marital life and absence of it due to wilful refusal by the wife amounts to mental cruelty or agony to the husband that may entitle him to a divorce in those particular facts and circumstances of the case. However, that does not give him any authority or right to have forcible sexual intercourse with his wife, who declines to have marital sex against her wishes.
If the feminists and activists are demanding “marital rape” to be criminalised, a majority of the section of society opposing the same believe (and propgate) that it is a law which is primarily anti-men, it would be badly abused by women and the same will destroy the fabric of marriage and the institution of family.
To support their contentions, they fiercely advocate that Section 498A of the IPC (cruelty against woman both physical and mental by the husband or his relatives) and the PWDV Act have been abused by some women. As a result, the Supreme Court came down heavily on the abuse and laid down guidelines for the effective implementation of these laws. Obviously, such precautions will have to be borne in mind while legislating marital rape/criminalisation of marital rape. They also advocate that the 172nd Law Commission Report, submitted in the year 2000, did not recommend marital rape as a criminal offence though the Commission has recommended that rape by a husband on his wife during separation should be made a non-bailable offence. This recommendation was later adopted in the amendments in the year 2013.
I suggest that such laws making marital rape a civil and criminal offence will have to be drafted with exceptional sensitivity and care to ensure that women (particularly those who have limited access to law and police) feel safe and secure to lodge a complaint of marital rape against their husbands in the event sexual intercourse is being forced upon them.
I believe a law against sexual assault by a husband should have a harmonious blend of deterrence and punishment. It should instil fear in the minds of the male (husband) that any kind of sexual violence whether within or outside the marriage will be severely dealt with by law. Having said this, it would be equally imperative for wives and other women’s rights activists and organisations to ensure that such a provision is used sparingly and only in extreme cases and not as a means to spread legal terrorism as largely feared. As far as possible, we need to ensure that a harmonious balance is attained and the women’s safety and/or emotional and physical wellbeing are not compromised. The intent should be to ensure that healthy sexual relationship, which is an edifice of a strong and longlasting marital bond, is preserved with dignity and respect to the wife. However, if this dignified conjugal bliss is made into a brutal sexual assault, law will not spare the perpetrators of the crime and will take its own course even if the same is within marriage. Law will not permit the spouse (husband) to use marital rape as an “oppressive weapon” to exercise his right in a marriage.