After 70 years of independence and adoption of one of the most progressive Constitutions in the world, the status of women in Indian society is still deplorable. Violence against women occurs at every second with impunity because of failure of governance[i] as well as the patriarchal mindset of the people who still think women as their property. In fact, crimes against women[ii] are reported every two minutes in India.
If we only talk about the crime of ‘rape’, as per the statistics[iii] of National Crime Records Bureau, 92 rapes are committed every day in India in 2012. In fact, there are a number of cases who are not reported[iv] by the victim due to the fear of the perpetrator or the stigma attached to this crime or maybe lack of awareness and courage. It means that a number of rapes committed are more than the numbers reported to the law enforcement bodies.
Rape occurs when a man commits the sexual intercourse with a woman without her consent. However, the IPC (Indian Penal Code) under Section 375 provides an exception in the case when men and women are married and women are more than 15 years and less than 18 years old, the sexual intercourse will not be considered as rape. This whole exception is based on the Age of Consent Act[v] 1891 which was enacted in British India. In fact, this exception is violative of the Article 14, 15 and 21 of the Constitution. However, as per the lawmakers, this exception was given to deal with the social reality of rampant child marriage[vi] in India. But the problem is that it also creates arbitrariness if we compare it with Prohibition of Child Marriage Act[vii] as well as POSCO Act[viii].
When I started writing this piece, I didn’t think that Supreme Court will declare this section unconstitutional. Supreme Court has struck down this clause in its recent judgment[ix] in October 2017 on the grounds of violation of Article 14, 15 and 21. However, the Supreme Court didn’t say anything about criminalizing the marital rape. Now, it means that sexual intercourse with the minor wife is rape but sexual intercourse with the adult wife without her consent, is not. In India, marital rape is not a crime not because we have not recognized the rights of women but because the Government of the day has no political will to criminalize the marital rape due to fear of backlash from the conservative sections of the society. As per the UN Population Fund report[x], more than two-thirds of married women in India, aged 15 to 49, have been beaten or forced to provide sex. This statistic is a stark reminder for the government of the day to take a serious interest in resolving various issues related to this issue by enacting the appropriate law.
Opponents of this idea give numbers of justifications for not criminalizing the marital rape. The first and most vocal opposition is that criminalizing marital rape will destroy the sacred institution of marriage[xi] because the mindset is that when a woman enters into a wedlock, she has given ‘irrevocable consent’ to perform sexual intercourse with her spouse. This whole concept stems from the theory of women as a man’s property. It is totally unjustified and uncalled for. How can we sustain the sacredness of the marriage when there is no freedom and ‘sexual autonomy’ for one partner? And after India became a constitutional democracy and adopted the ‘Rule of Law’, it can’t take recourse to culture and traditions to justify sexual crimes committed within or outside the wedlock.
The second criticism is that the law will be misused by the women to fabricate false crimes as witnessed under Section 498[xii] of the IPC. In fact, almost all the laws are misused in one way or other in India which no way justifies not enacting a law to address the crimes committed against married women in India. In fact, the exception for Marital Rape is not justified on the basis of Article 14-Right to Equality when one woman gets the protection of law but another doesn’t because she is in an intimate relationship with her preparator. It is also not justified because it is arbitrary and discriminatory.
The third reason given not to criminalize marital rape is that there are enough laws and safeguards under Domestic Violence Act[xiii], 2005 and other laws which women can use to prosecute her husband for violence against her. The irony is that recognizing marital rape as a crime is very much related to the recognizing the “sexual autonomy” and bodily integrity of women. We want to say that don’t bring this matter in front of everyone because you have other laws to deal with it. It is almost treating women as the secondary citizens who have not entitled the ‘Right to life with human dignity’ under Article 21. It shows the patriarchal and patronizing mindset of Indian society.
In fact, this is high time that India must criminalize the marital rape to give autonomy and freedom to the half of the population of India. Now we are in 2017 when Supreme Court of India has given “Right to Privacy[xiv]” in its path-breaking judgment in August 2017. In this judgment, Supreme Court has given a broad perspective of privacy. It says, “Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. The pursuit of happiness is founded upon autonomy and dignity of the individual.” It also recognizes the right to be left alone.
This whole concept of privacy can be applied to the marital rape issue where as per the law, the married women has no autonomy in her sexual relationship. She cannot exercise her bodily integrity. It is absolutely unfounded and unjustified now after ‘the right to privacy’ judgment. In fact, we can be reminded of the fact that right to privacy to the people in India was not there earlier which has been evolving since the law of land came into force. Therefore, it can be said that Indian society was not ready ten-twenty years back to accept the issue of marital rape but now in the year 2017, we must accept this reality and take action to criminalize this inhuman and brutal practice to give justice to those women who are suffering in silence.
Many committees appointed by the Government of India advocated for criminalizing the marital rape[xv]. The Justice J. S. Verma committee, which was appointed after the dreaded ‘Nirbhaya’ incident has recommended “marriage or any other intimate relationship between a man and a woman is “not a valid defense against sexual crimes like rape”. The committee also added that the legal prohibition on marital rape should also be accompanied by changes in the attitude of all the stakeholders and there is need to create awareness of women’s rights to autonomy and bodily integrity regardless of marriage or other intimate relationships. Recently appointed Committee on the Status of Women (2015) headed by Pam Rajput also recommended that as a pro-women measure, marital rape should be declared as a criminal offense irrespective of the age of the wife and the relationship between the ‘perpetrator’ and ‘survivor’. However, the Central government[xvi] consistently denied taking a proper stand by saying that the people in India are not ready for it and it will create stress for the entire family system.
The claim that it is a western concept is unjustified because of South Africa[xvii] another developing country which has criminalized the marital rape. In fact, as per the UN Women’s 2011 report[xviii], 52 countries out of 179 countries have explicitly amended their legislation to make marital rape a criminal offense. It is totally against to the various Human Rights Conventions to which India is a signatory. It’s been a long time to the women of India, the government needs to recognize the spirit of “Right to life” with human dignity under Article 21 and the recent judgment of “Right to Privacy” to pave way for declaring marital rape as a crime which violates the dignity and autonomy of women.