The immunity accorded to men who force their wives to have sex under Section 375 of the IPC constitutes spousal rape and violates women's constitutional rights, writes KEERTHANA UNNI.
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SEXUAL violence against women in India manifests itself in various forms, including marital rape, which shockingly is not considered a criminal offence unless the wife is a minor.
Ironically, The Protection of Women against Domestic Violence Act, 2005, which aims to "provide for more effective protection of the rights of women, guaranteed under the Constitution, who are victims of violence of any kind occurring within the family", excludes spousal rape from its definition of 'domestic violence'.
In India, marriage is seen as direct consent for intercourse between the partners despite nonconsensual sex constituting marital rape. The National Family Health Survey (NFHS), 2015-16, pointed out that 31% of married women between 15-49 years faced physical, sexual or emotional abuse by their spouses with 5.4 per forced to have sex at some point.
Section 375 of the Indian Penal Code (IPC), 1860, states that rape includes all forms of nonconsensual sex with a woman with the exception of intercourse by a man with his wife aged 15 years or above.
Subsequently, Section 375, which 'safeguarded' the husband in incidents of marital rape, was amended by the Criminal Law Amendment Act, 2013, by raising the age of consent to intercourse to 18. However, Exception 2 to Section 375, which creates an exception to marital rape if the wife is of 15 years of age or above, was not amended. The Act resulted in an anomaly where forced sex by a husband with a minor wife, between 15 and 18 years of age, was permitted.
Later, in Independent Thought vs Union of India, 2017, the Supreme Court (SC) ruled that sex with a girl below 18 years of age, even by the husband, would constitute rape.
In a historic verdict while reading down Exception 2, the apex court amended the wordings of the particular clause, which now read: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape."
Though the SC clearly stated that it had not "dealt with the larger issue of marital rape of adult women", it rapped the Centre for not criminalising sex with a girl under 18 years of age even if the exploiter was her husband.
Therefore, the scourge of men forcing their wives aged 18 years or above to have sex remained uncurbed. With neither the judiciary nor the legislature intervening to address the problem, married women have lost their individuality and the right to autonomy over their bodies.
Anita Menon, a Canada-based social worker fighting domestic violence, told The Leaflet, "Consent is not given importance in a marriage, which shows the lack of gender equity in the relationship. It is used as a licence to violate the body and rights of the partner, which is a clear form of abuse."
"Marital rape is difficult to prove because, according to society, consent is obvious in a relationship. We fail to see the boundaries and rights of the individual," Menon said.
For the second time, in 2019, the top court refused to entertain a PIL that sought a direction to the Centre to frame guidelines for registration of FIRs in cases of marital rape and make laws for making it a ground for divorce.
Dismissing the plea, the SC asked petitioner advocate Anuja Kapur to approach the Delhi High Court for relief. Eventually, she withdrew the plea, which had stated that "marital rape is no less an offence than murder, culpable homicide or rape per se… It reduces a woman to a corpse living under the constant fear of hurt or injury."
Contending that since marital rape is not considered a crime, the plea stated that there is no FIR registered by a wife against her husband in any police station. "Rather, it is being compromised by the police authorities to maintain the sanctity of the marriage between the victim and the husband."
In 2015, the SC had dismissed a Delhi-based woman's plea seeking to make marital rape a criminal offence on the grounds that she was "espousing a personal cause and not a public cause".
In Sreekumar vs Pearly Karun, the Kerala High Court ruled that an offence under Section 376A of the IPC [intercourse by a man with his wife during separation] will be "attracted only when sexual intercourse is conducted by a man with his wife who is living separately from him under a decree of separation or under any custom or usage without her consent".
Not criminalising marital rape traps married women in the cycle of violence and forces them to stay in abusive households, which affects their mental and physical health.
The legal immunity provided to spousal rape is not only regressive but also shameful especially when compared to laws on domestic violence and even dowry.
For example, any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman is considered sexual abuse under the Domestic Violence Act. Since forced intercourse, or marital rape, is not considered a sexual abuse under the Act, it indirectly accords immunity to a man who 'rapes' his wife.
Even the anti-dowry law, Section 498A of the IPC, prescribes a maximum three-year prison term for "the husband or the relative of the husband of a woman" who subjects her to cruelty.
In Nimeshbhai Bharatbhai Desai vs State of Gujarat, the Gujarat High Court condemned marital rape while examining whether a wife can initiate legal proceedings against her husband for unnatural sex under Section 377 of the IPC and believed that this was a clear case where the accused had endangered the modesty of his wife.
Admitting that "marital rape is in existence in India", the court termed it as a "disgraceful offence that has scarred the trust and confidence in the institution of marriage". "A large population of women has faced the brunt of the non-criminalisation of the practice and lives in abject fear for their lives due to such non-criminalisation," the court observed.
"Victims of marital rape have often reported long-term psychological distress, such as post-traumatic stress disorder, or other anxieties, which could adversely affect their children as well," Linda Mathew, a psychology student from Christ University, Bengaluru, told The Leaflet.
A study titled, 'Masculinity, Intimate Partner Violence and Son Preference in India', jointly conducted by the United Nations Population Fund (UNPF) and the International Centre for Research on Women, showed that 75% of the men surveyed expected their partners to agree to sex.
The study also revealed that 60 per cent of men admitted to using violence to dominate and control their partners. More than half of the women surveyed, 52%, experienced some form of violence with 38% suffering physical violence and 35% emotional abuse.
"The study reaffirms and demonstrates that addressing inequitable gender norms and masculinity issues are at the heart of tackling the root causes of intimate partner violence and son preference," the UNFPA said.
The NFHS also showed that only a very small percentage of married women subjected to spousal rape sought police help. Besides, most victims were turned away by the police. A victim who tried to register a police complaint was asked by cops to 'adjust' to her husband's needs.
"Indian women are conditioned to place their husbands on a pedestal, which holds them back from confiding [about marital rape] in anyone," Beena Nair, a teacher from Palakkad, Kerala, told The Leaflet.
Most victims confide about sexual violence committed by their husbands in another family member rather than the police or courts.
Sexual violence committed by men against their wives and the immunity provided under Section 375 violate Article 21 and Article 14 of the Constitution. While Article 21 guarantees life and personal liberty, Article 14 ensures equality before the law without discrimination on grounds of religion, race, caste, sex or place of birth.
In Suchita Srivastava vs Chandigarh Administration, the SC observed that "a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21".
Stressing that a woman's right to privacy, dignity and bodily integrity should be respected, the Supreme Court observed that there "should be no restriction whatsoever on the exercise of reproductive choices, such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods".
In another case, the SC observed that privacy also connoted a right to be left alone. "Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life," the court observed in Justice K.S.Puttaswamy (Retd) vs Union Of India.
Observing that privacy is the ultimate expression of the sanctity of the individual," the court further observed: "The ability to make choices is at the core of the human personality. Its inviolable nature is manifested in the ability to make intimate decisions about oneself with a legitimate expectation of privacy."
Both the Articles clearly state that every citizen has the right to live with dignity and be treated equally before the law without discrimination. Therefore, marital rape and Section 375 are a brazen violation of the Constitution and rights of women.
"The non-criminalisation of marital rape is another example of how the law denies rights to women even today," the executive director of Delhi-based NGO Sakshi, which fights domestic violence and child sexual abuse, told The Leaflet. "Women have been reduced to mere objects with blanket consent for sexual gratification of their legally entitled partners," the survivor of domestic violence added.
(Keerthana Unni is a student of Symbiosis Centre for Media and Communication, Pune, and is an intern at The Leaflet.)