Marital Sex even if forcible is not Rape; Delhi Court [Read Judgment and a close look at the Law relating to Marital rape in India]

A Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape.

Vikash, who allegedly drugged and raped his wife, was acquitted after the judge substantiated that Indian rape laws don't apply to married couples. The woman in the present case claimed that her marriage was not legal because she had been abducted against her will, after being sedated by the accused and his father. She alleged that she was abducted by a man, who forced her to sign a marriage certificate while she was intoxicated, in a registry office situated in Ghaziabad. He then raped her on several occasions and threatened of dire consequences if she tried to complain to anybody.

The accused denied all allegations and claimed that the marriage had been consensually solemnized in 2012. It was only on March, 2013 that they decided to get their marriage registered.

The Judge found no evidence as to drugging of the wife or forceful marriage. It was noted in the judgment that she was more than 21 years of age when she solemnized her marriage with the accused.

The Court thus ruled that, the prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.

The judgment came from Additional Sessions Judge, Virender Bhat. This is the second time that a comment by him has stroked controversy, the first time being in October last year when he wrote that "girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying later that it was rape."

This ruling comes just over a year after the Indian Government made an effort to strengthen its rape laws and increased sentences for the perpetrators after the hue and cry over the brutal gang-rape and murder of a student on a Delhi bus. These changes were based on recommendations of the Verma Committee, headed by late Justice J.S.Verma. The Committee had advocated criminalization of marital rape as well but this was rejected due to apprehension that it would dent the institution of arranged marriages and lead to frivolous complaints.

The Committee stated in its report, "Under the Indian Penal Code sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts."

Ms. Indira Jaising, Additional Solicitor General of India, in her key note address speech to the Justice Verma Committee, solicited the criminalization of marital rape in the country and said that, marital rape exemption in section 375 is a poignant reminder of the lowly status given to women in our society, almost akin to chattel. Why else would a crime of rape by a man against his own wife not be an offence? If rape is the violation of human rights then it is equally a violation whether committed by her husband or stranger.

She condemned the consideration of eternal consent once the institution of marriage is solemnized and slammed the existence of such an exemption in a country which guarantees right to life and personal liberty to all citizens. She says that the marital rape exemption, which stands blatant testimony to the bias against women and their social and legal construction as appendages of men, be they fathers or husbands needs deletion. She thus emphasizes on the need to redefine "consent" in as in as much as that the existing definition of consent in Section 90 of the Indian Penal Code is inadequate. It is in the negative, what we need instead is a positive definition.

The statistics in this regard are unnerving. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex.  A look at the options a woman has to protect herself in a marriage, tells us that the legislations in India in this regard have been either non-existent or obscure.

IPC in dealing with Rape, in a very constricted purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 15 years of age.. Once, the age crosses 15, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against "perverse sexual conduct by the husband". But there is no standard of measure or interpretation of the terms, 'perversion' or 'unnatural'. The Protection of Women from Domestic Violence Ac, 2005 did consider marital rape as a form of domestic violence.

Even though, 172nd Law Commission report had commissioned deletion of explanation (2) of section 375 of IPC, it did not include it as according to the report, "that may amount to excessive interference with the marital relationship."

Legal experts argue that the exception provided to the offence of marital rape goes against the virtues of the Constitution of India as well. Right to live with human dignity has been included under Article 21 of the Constitution. The Supreme Court has held in a plethora of cases that the offence of rape violated this basic human right attributed to every citizen. Rape is considered to be a crime against the entire society. Marital rape is no different and the exemption doctrine is vocative of a woman's right to live with dignity. Also, insofar as the marital rape exception creates a classification between married and unmarried women, and denies to the former, equal protection of its criminal legislation, it prima facie violates Article 14.

Many organizations and activists in India advocate criminalization of rape committed under the veil of marriage. Sahiyar (Stree Sangathan) in an interview to the Time of India, said, "We believe that right over one's own body is a fundamental right, and marital rape violates this basic human right of women. We have been demanding it to be recognized as a crime, and had also collectively forwarded this recommendation to the Verma Committee, along with other women organizations." NGO leaders Trupti Shah and Rita Choksi also wondered why, when it was accepted in the Verma Committee Report, was it "conveniently kept aside in the ordinance passed by the government." 

On the International front, Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. It is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia.

The present law on Marital Rape is a contradiction of the unanimous resolution at the UN conference in Beijing, September '95. The resolution guarantees every woman's right to say no to sex as she wishes, specifically wives. India was a signatory in the Bejieng convention, yet even now a married woman has no right to say no.

Owing to the sacrosanct relationship that marriage is considered to be, fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are degraded to the status of a chattel. Along with judicial awakenings, we require generation of awareness. 'Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women's human rights', says the UN.

The law, at its origin, did not consider marital rape as an offence because it conceived the offence of rape as an instrument for protecting a man's property from sexual aggressions of other men. Hence, the act of rape within marriage was not recognized as an offence as woman was considered the property of the husband, and a man could not be perceived to violate his own property. There is now a need to acknowledge her as a human being with dignity, rather than the ancient notion of her being a mere property, and give her the respect that she is worthy of. The patriarchal authority construction has deemed marriage to be a license to legal unwilling sex. In the process, there is total negation of the self worth of a woman. In a country rife with misconceptions due to deeply ingrained cultural and religious stereotypes, changing social values have to fast alter the letter of law.

Even the National Federation of Indian Women, which is the women's wing of Communist Party of India, reportedly articulated its unease over the verdict and termed it as a "manifestation of patriarchal mindset". Its general secretary Annie Raja said: "This verdict will have a very negative impact on women, especially married women. This will encourage and perpetuate the alarmingly increasing menace of marital rape." They consider it highly retrograde.

Read the judgment here.