April 10, 2018
Marital Rape….It’s not about feminism, it’s not about gender equality, it’s just about dignity of women and humanity.
In a recent case Nimeshbhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court took up the controversial and much deliberated issue of marital rape in India. Hon’ble Justice J.B. Pardiwala while making remarkable observations on the concept of marital rape has condemned the inaction of the Government and Legislature on the act of marital rape in India. Even after reading the whole judgment and perusing through the remarks made by Justice J.B. Pardiwala against the legal status of marital rape, the question that lingers in the mind is that why marital rape is not an offence in India?
In view of the facts and circumstances in the case, the issues that fell for consideration before the Court were:
- Whether a husband can be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife?
- Whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC?
- Whether there is any concept of marital rape?
- Whether the acts complained by the wife in her first information report would fall within the ambit of “unnatural offence” within the meaning of section 377 of the IPC?
- Whether the acts of sexual assault or sexual perversion as alleged by the wife against her husband would constitute physical and mental cruelty within the meaning of section 498A of the IPC?
- Whether a person can be held guilty of outraging the modesty of his own wife?
- Having regard to the position of law prevailing as on date in this country, the wife cannot initiate proceedings against her lawfully wedded husband for the offence of rape punishable under section 376 of the IPC.
- Husband forcing wife to have unnatural sex- To arrive at its decision with reference to the issue whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC, the High Court heavily relied on Supreme Court’s decision in the case of Suresh Kumar Koushal vs. Naz Foundation & Ors., to hold that section 377 of the IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates the sexual conduct regardless of the gender identity orientation. What has been held by the Supreme Court is that consent is not the determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under section 377 of the IPC thereby making it obvious that a wife can initiate proceedings against the husband under section 377 for unnatural sex. Thus, when the husband is alleged to have forced his wife for oral sex and actually indulges into the same, the same would constitute an offence under section 377 of the IPC.
- Outraging Modesty of Women– If a person assaults or uses criminal force against any woman intending to outrage, or knowing it to be likely that he will thereby outrage, her modesty, he commits an offence under section 354 of IPC.
It is conceivable that in case the husband assaults or uses criminal force against her wife the act will amount to an outrage under section 354 of IPC, irrespective of the fact whether it was done with or without her consent or in the absence of a third party. The question of husband’s knowledge, intention or her developed sense under the modern set up would become irrelevant and a deliberate outrageous conduct of the husband is indefensible. It would thus seem to follow that a husband may be held guilty of an offence even under section 354 of IPC if the victim is a woman who is his wife.
- Marital rape- A woman in this country can protect her right to life and liberty, but not her body, within her marriage. If the husband lays an assault on her wife, then that would constitute an offence under the IPC. If the very same husband lays an assault and forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage between the two.
Uptil now, the stance of the Government has been that the term “marital rape” is oxymoron. The analogy which is sought to be applied by the government hinges on the statement that to get married is to give all time consent forever to sex with your spouse. What is in the mind of the legislature is that marital rape is completely unprovable. A wife accusing her husband of rape and pressing charges only demonstrates that the marriage is irrevocably over.
Justice Pardiwala in the case has rendered an in-depth analysis of offence of marital rape in different nations including the developed nations like the US and UK where marital rape has been declared as a criminal offence.
- The husband cannot be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife as the marital rape is not covered under section 375 of the IPC. The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of Exception-II in section 375 of the IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.
- A wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC. Section 377 IPC does not criminalize a particular class of people or identity or orientation.
- Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene.
- It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status. 130.7 Way back in the 1800s, almost around 125 years back, there was a situation that brought forth to the law makers.
- A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed. The Husbands may then begin to recognize that marital rape is wrong. Recognition coupled with the criminal punishment should deter the husbands from raping their wives. Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.
 AIR 2014 SC 563