*By Meemansha Choudhary and Tanisha Kapil
Unfolding the Gap in Legal Provisions Safeguarding Women
India, a country that is ahead in almost every field, still keeps a conservative mindset when it comes to the topic of sexual violence happening after marriage. The concept of marriage in India is viewed as a socially approved relationship sanctioned by customs and also often seen as a sacrament and a purificatory ceremony for every Hindu. However, what happens within the confines of this institution of marriage, escapes scrutiny from society as well as law. Domestic abuse in this modern world remains an unfortunate reality for women.
While the subject of marital rape is responded to with institutional silence, a landmark judgement delivered by the Delhi High Court has offered a ray of hope. In a split verdict, Justice Rajiv Shakdher acknowledged that the exception granted to non-consensual sexual intercourse within marriage is completely arbitrary and shares no nexus with the object of classifying rape as an offence. This recognition sheds light on the urgent need to address the inconsistencies prevailing in legal and societal attitudes toward marital rape.
Even though we have a new legislation, Bhartiya Nyaya Sanhita,2023 that claims to revamp the laws from the colonial era, we have failed to consider the harsh reality for women. While in the Indian Penal Code, Exception 2 of Section 375 granted immunity from the act of rape to a man if the woman is being his wife is not under 15 years of age, Exception 2 of Section 63 of the BNS grants legal immunity to Indian husbands by stipulating that “sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape”. The only difference between both provisions is the age of the woman.
Although Section 3(a) of the Protection of Women from Domestic Violence Act, 2005 acknowledges sexual abuse as domestic violence, it only provides for civil remedies. Under this, if a woman has gone through marital rape, she can obtain judicial separation but cannot initiate any criminal proceedings.
Consent plays an important role in determining whether a man can be prosecuted for rape but the legislation completely eradicates the concept of consent and it finds no space within a marriage. The law takes away the right of the woman to say no and have control over her body. Therefore, as soon as marriage takes place, it automatically becomes a consensual relationship which proves to be quite problematic and ruthless for the women and even if a man commits the horrendous offence of rape upon his wife, she will have no remedy to rely on.
Tracing the Origin of the Concept
The idea of not criminalizing marital rape has its roots in age-old ideas of the Doctrine of Coverture and the Doctrine of Hale. According to the Doctrine of Coverture, a woman has no individual legal identity after marriage while the Doctrine of Hale states that a man cannot be guilty of rape since the wife has given up herself in such relationship with mutual contract and consent. The basis of the exception is the Macaulay Code of 1837. Nonetheless, relying upon these two doctrines to not strike down the exception is like betraying the women of one’s nation and snatching away their right to dignity as well as their right to life. It invalidates the fundamental ideas of democracy and gender equality and specifically targets married women's autonomy, privacy, and independence. Sexual acts without consent not amounting to rape is patriarchal as well as unconstitutional violating Articles 14, 15, 19 and 21.
Contemporary Landscape
The marital rape exception is not only supported by many people of the country but striking down of the same has again and again been opposed by the Parliament itself. The arbitrary grounds are that it cannot be applied in the Indian context since people in India treat marriage as a sacrament and are not ready for such happening. By prioritizing marriage as an institution, it can be implied that the woman’s right becomes secondary in a marital bond. The authority of the husband is given priority over the bodily autonomy of the woman thereby, sustaining strong patriarchal ideas. It has been argued that criminalising sexual intercourse without consent would destroy the institution of marriage and it might become a potential tool for false cases for harassing the husbands. However, merely because a provision is prone to misuse, it cannot be a justifiable ground for not including it and depriving a larger population of justice. The issue of misuse can be prevented by establishing safeguards and clear guidelines which can help in determining the credibility of the case.
Ironically, lawmakers care about society’s views and protecting the men who commit such crimes while not paying any attention to what most women go through all their lives because they are married and do not have bodily autonomy.
One of the victim’s testimonies reveals that the sexual violence began on her wedding night, where the intercourse was entirely non-consensual and forcibly inflicted on her, despite her pleas for it to stop. Data from the survey of NFHS-5 indicated that nearly one-third of the women in India have experienced physical or sexual abuse by their husbands. Marital rape in India now has become nothing but a taboo deeply embedded in the patriarchal society with no awareness and no remedy. The 2013 report by the J.S. Verma Committee even recommended deleting the exception. The committee relied on the decision of C.R. v U.K. which concluded that a rapist remains a rapist regardless of his relationship with the victim. As usual, the Parliament failed to enact the change. United Nations, Human Rights Watch, and Amnesty International also raised concerns about India's refusal to criminalise marital rape.
The voices of the victims often go unheard or are overshadowed by the laws and patriarchal societal norms. A 29-year-old domestic worker reflects her deep frustration by stating “Even my silence is treated as permission Furthermore, according to a government report, women are subject to abuse 17 times more likely by their husbands than by complete strangers. Everyone seems to take into consideration the matters of tradition, family, and society but no one pays heed to the rights of the victim as a human being. The man’s needs are considered superior to the woman’s bodily autonomy. Even in today’s times, the body of women is treated as a mere object even when K.S. Puttaswamy v. Union of India affirmed the concept of bodily integrity under Article 21 by stating that it is the right of each individual to determine how and for what purposes their body may be used. The exception indeed is an insult to the fundamental rights of women.
Conclusion
At present, there are only 32 countries which continue to live in an era where marital rape is not criminalized completely disregarding a woman’s bodily autonomy. The DV Act falls short of ensuring full justice for women in the cases of marital rape. Amending the act to include all non-consensual acts regardless of marital status would be a significant step. It is not just a legislative requirement but morally crucial. Furthermore, awareness drives across the nation can bring a fundamental shift in societal attitude. Educational initiatives in schools and universities could also help in addressing the issue of awareness.
It is now imperative to strike down the exception and adhere to the observations of the Karnataka High Court in Hrishikesh Sahoo v. Union of India, which stated that “a man is a man; an act is an act; rape is a rape, be it performed by a man ‘the husband’ on the woman ‘the wife’”. It is high time to recognise all forms of abuse within the ambit of domestic violence. The sanctity of marriage can only be upheld and preserved when both the spouses are treating each other with mutual respect, it cannot be preserved when one is suffering at the hands of the other.
While it may prove to be challenging to pinpoint the exact threshold where acceptable behaviour gets converted into abuse, it is the duty of society to identify and prevent such transgressions. When this limit gets crossed, the law has to be adequate to penalize such behaviour. Law is a tool of social development and both are intertwined with each other. Only when the law criminalizes sexual abuse within marriage, including marital rape, will a redefined understanding of marriage emerge within the social fabric.
*Meemansha Choudhary is a fourth-year law student pursuing a B.A. LL.B ( Criminal Law Hons.) at the National Law University, Jodhpur.
*Tanisha Kapil is a second-year law student pursuing a B.A. LL.B (Hons.) at National Law University, Jodhpur.
The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.
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