A Parallel Analysis of Marital Rape Laws: How India Compares with Other Constitutional Democracies





Introduction

Marital rape, a concept so foreign to the Indian patriarchy, that many often misconstrue it as an oxymoron, unable to believe the idea that even a husband has to ask his wife for consent or can otherwise be guilty of raping her. However, as late as we might be, in addressing this issue, it is high time marital rape be meticulously dragged outside the four walls of a house and criminalised once and for all. At a time when the Delhi High Court is hearing proceedings on the issue of challenge to the exception provided in Section 375, and perhaps might be on the cusp of creating history, the nation finds itself amidst a heated ongoing debate on the constitutional validity of the marital rape exception in Section 375 of the Indian Penal Code, 1860. While, Judges, advocates, scholars and researchers have laid diverse arguments on the table, not much attention has been paid on the position of marital rape laws in leading global Constitutional Democracies such as the USA, UK and Cananda and how does India compare with these jurisdictions. In this piece, the authors attempt to trace the development of marital rape laws in the aforementioned jurisdicitions and in this context, critique the status quo in India as well.


Position of the Marital Rape Laws in USA

The position of Marital Rape in the USA has changed significantly since the 19th Century. One of the earliest cases dealing with marital rape in the USA was Frazier vs State, which was decided by the Texas Court in 1905. In this case, Mr. Frazier had been charged of raping his wife, however, considering the dominant patriarchal narrative prevailing in the the society, the Texas Court had reversed the decision made by the Trial Court and held that Mr. Frazier was not liable for committing rape.

The rationale behind not criminalising Marital Rape in the early nineteenth century largely lies with the treatise of Sir Mathew Hales, who was a former Chief Justice of England, who had said,“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

However, things started changing eventually when in 1977, Laura X founded the National Clearinghouse on Marital and Date Rape, which focuses on the prevention of rape and educating people about it. Due to the continuous efforts of Laura X, marital rape was first outlawed in the state of California and as the movement spread, other states followed the suit and subsequently it was outlawed in the rest of the fifty states. In 1978, Oregon became the first state to criminalise marital rape law in the USA and soon, other States started to follow suit with New York criminalising the same in 1984.

In the year 1978, another significant incident took place which provided further impetus to the movement of criminalising Marital Rape in the USA. In the State of Oregon, Greta Rideout reported to the police that his husband had raped him. This became the first instance where a trial court was faced with the victim accusing her husband of raping him. According to Joan M Ross, the case of Rideout changed the perspective of the Americans regarding the issue of Marital Rape.[1] This was primarily because of the fact that the issue received significant media coverage and drew the attention of the people.This matter In 1986, the Federal government had enacted the Federal Sexual Abuse Act, which led to the criminalisation of marital rape at federal level.

As of today, though act of marital rape is an offence, there are several loopholes that continue to exist in the legislations of different States which may provide a leeway to avoid prosecution in cases where the victim and the accused are in a marital relationship.


Marital Rape legislation in the United Kingdom

The position of Marital Rape in the United Kingdom before 1992 was quite akin to the situation prevalent in the USA before the enactment of the Federal Sexual Abuse Act in 1986. However, the judgement of the UK Supreme Court in R vs R in 1991 sparked a change in the then status quo. In this case, a man( who was called as ‘R’) was convicted of raping his wife, when the House unanimously agreed to overturn the common law- marital rape exemption. Thereafter, the court’s decision was upheld with the enactment of a law passed by the House of Lords. Marital Rape is now a well-defined offence under the Sexual Offenses Act 2003, with strict sentencing and conviction policy. Nevertheless, efforts to dispense fair justice to the victims of marital rape and to bring the accused to the book continue relentlessly.

Development of Marital Rape Laws in Canada

The situation in Canada before 1983 was no different than that in the democracies of the USA and UK in the 1980s. There were no provisions of criminal sanctions on perpetrators of marital rape. In the foreground, the marital rape immunity was observed quite strictly by the courts of law and a legislative amendment was viewed as the only possible way to read down the immunity. In fact, the religious institutions too populariswed the idea that husbands could not rape their wives. It was for the first time that marital rape was criminalised in Canada, through the reforms in the Criminal Code enacted in 1983 and various subsequent amendments thereby, giving due recognition to women’s individual rights. This was the result of aspirations of various feminists that transpired into reality through much efforts, raise voices against the hostility of police towards rape victims and lax penal provisions.


In Canada, the statutory immunity for marital rape was perceived as nearly absolute. This was in stark contradiction to the situation in the United Kingdom, where marital rape immunity was not initially codified, but was gradually repealed via judicial interpretations.


The offences of rape and indecent assault were replaced in the Bill C-127, by a new, gender-neutral framework of crimes in the Criminal Code. A husband or wife can be prosecuted with an offence under section 246 for sexual offences in relation to his or her spouse. However, there have been several conflicting judgements which have forced the citizens to question the credibility and efficient execution of law, while several activist groups have been making efforts for promoting a strict framework for penal provisions in sexual offences inside marriage as well, it is hoped that the various discrepancies in the legislation are gradually resolved.


The Status Quo in India

The status of Marital Rape laws in India is in debate due to the exception in Section 375 of the Indian Penal Code. Section 375 of IPC criminalizes rape, while Exception 2 to the section criminalizes forced sexual violence in a marriage only when the wife is below the age of 15 years. However, the Supreme Court in the case of Independent Thought V. Union of India laid down that the forced sexual violence in marriage is a crime when the wife is below the age of 18 years. The criminal laws in India do not recognize marital rape as an offence and thus immunize the perpetrators of marital sexual violence, making marital rape a norm rather than a crime.

Justice Verma Committee which was constituted to recommend amendments to the criminal law, in its report of January 23, 2013 made certain recommendations to laws related to marital rape. The Committee proposed that the exception to marital rape under Section 375 of the IPC should be removed and condemned the institution of marriage being equated with perpetual consent for sex. Also, it emphasised the fact that marital relationship between the accused and the victim should not be a ground to excuse the perpetrator of sexual violence. But ultimately, these recommendations were not included in the subsequent Ordinance and Venkaiah Naidu's Standing Committee on Home Affairs had stated that "the entire family system will be under great stress should marital rape be criminalised".

Similar arguments including the stability of the institution of marriage, misuse of new legislations, already existing remedies under Section 498(A) of the IPC and the Protection of Women from Domestic Violence Act 2005 are being given now in favour of the exception. The Delhi High Court has reserved its judgement, after hearing the submissions made by both the sides, in the matter. The Solicitor General has informed the Court that the Central Government is awaiting response of the State Governments and various other stakeholders before clarifying its stand, as it believes that the subject matter will have wide socio-legal implications in the society. In a turn of events, departing from its myopic view of the issue, the Center also appraised the Court that it is considering a constructive approach, post the consultative process on the issue.


Senior Advocate Rajshekhar Rao, the amicus curiae in the case, submitted that the marital rape exception violates the rights of dignity and privacy, equality, consent and the sexual autonomy of women. He argued against the presumption of consent to intercourse in marriage and further raised the question of anomalous discrimination between married and unmarried women in the aspect of defining rape. Also, Senior Advocate Rebecca John in her submissions presented that availability of remedies under Sections 498A, 304B of IPC, Domestic Violence Act, etc. are inadequate to deal with the offence of marital rape.


In the crux of the submissions made from the side of petitioners, Adv. Karuna Nundy appealed to the Court to strike down the exception for being “manifestly arbitrary”. She relied on various judgements to submit that the exception does not completely satisfy the essentials under Art.14 of the Constitution. Senior Adv. Colin Gonsalves argued that mere possibility of misuse of a law doesn’t make it unconstitutional. Moreover, he appealed the courts to analyse the aspects of consent and penalty while determing the validity of the exception and submitted that the jurisprudence of the offence shall be evolved pursuant to the criminalization of marital rape.


Conclusion

The Delhi High Court has a phenomenal opportunity to relinquish this appalling exception and criminalise marital rape in the country, thereby adding another milestone to India’s journey towards becoming a better, just and a more equitable democracy. It is hoped that this piece will provide the much needed insight on the marital rape laws in various foreign jurisdictions and enlighten the readers to better understand the nitty gritties of the legislation on marital rape that we expect to have in our country by way of judicial or legislative intervention.

{Himanshi Srivastava is a 2nd year law student, pursuing B.A. LLB. (Hons.) from Dharmashastra National Law University. Her research interests include criminal law (with focus on Death Penalty), human rights and international law}


{Siddharth Chaturvedi is currently a research intern at Global Order}


The views expressed in this article are the authors' alone.

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