“Rape is rape and a rapist remains a rapist; no amount of classification and verbal jugglery can alter that reality. Notably, every other woman including a sex worker is entitled to decline consent and prosecute for rape; a right which is not available to a married woman.” How does the legal framework in India address the issue of marital rape, and what are the implications for the rights and protections of married individuals, including considerations of constitutionality?
MARITAL RAPE IS RAPE TOO : Rape is rape and a rapist remains a rapist; no amount of classification and verbal jugglery can alter that reality. Notably, every other woman including a sex worker is entitled to decline consent and prosecute for rape; a right which is not available to a married woman. [See CR v. UK, Independent Thought; and State of Maharashtra v. Madhukar Narayan Madikar, (1991) 1 SCC 57.]
BHARTIYA NYAYA SANHITA: Section 63 of BNS provides for an exception to rape which states that ‘sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’ The corresponding provision in the IPC that also provides for Marital Rape uses the term ‘the wife not being under fifteen years of age’ in place of ‘the wife not being under eighteen years of age.’ Hence, the only change in the BNS has been an increase in the wife’s age from fifteen to eighteen to avail the exception. Basically, the judgement in Independent thought v UOI, (AIR 2017 SC 4904) has been reaffirmed by increasing the wife’s age to eighteen. However, BNS still retains the crux of the provision in the IPC as regards MRE, that was a subject of heavy debate and criticism.
WHY MARITAL RAPE IS UNCONSTITUTIONAL/SHOULD BE A CRIME: Justice Rajiv Shakdher in RIT FOUNDATION v. THE UNION OF INDIA 2022 DELHI HC: It would be tragic if a married woman's call for justice is not heard even after 162 years, since the enactment of IPC. To my mind, self-assured and good men have nothing to fear if this change is sustained.
1.Rape is a heinous crime that has multiple consequences including mental trauma and severe adverse medical effects. It would be arbitrary to decriminalize marital rape on the ground that by entering into matrimony, a woman consents to a continued sexual relationship from which she cannot retract.
2. Marriage cannot be a relevant consideration in concluding whether a criminal offence has been committed or not.
3. There is no rationale for distinguishing between married and unmarried men who subject women to forced sexual intercourse.
4. Section 67 of BNS / 376B IPC was unconstitutional since it created a distinction between husbands, who are not separated from their wives and those who are separated by bringing the latter class of husbands within the definition of rape in respect of forced sexual intercourse under Section 63 BNS/ 375 IPC and, at the same time, assigned lesser punishment for such a crime.
5.In any event, having regard to the passage of time and a better understanding of gender equality, Marital Rape should not be permitted to remain on the statute.
6.Courts should not desist from examining the constitutionality of the impugned provisions only because it is impossible to prove the occurrence of marital rape as at times it happens within the confines of a household.
7. To deny a married woman the right to call a rape a rape if committed by her husband, would strike at the very core of her right to life and liberty guaranteed under Article 21 of the Constitution.
WHY MARITAL RAPE IS NOT UNCONSTITUTIONAL/SHOULD NOT BE A CRIME: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. [Exception 2 to Section 63 BNS/375 IPC]
1. The Supreme Court, half a century ago in the celebrated decision of Dastane v. Dastane (1975) 2 SCC 326 , observed that “sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”. Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.
2. Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger is not only unjustified, but is ex facie unrealistic.
3. The existence of such a conjugal expectation, to normal sexual relations, read with the unique relationship of marriage, however, provides an intelligible differentia, having a rational nexus to the object of the impugned Exception, as well as to the object of Section 63 BNS/ 375 IPC itself. The distinction carved out by the legislature in labelling and treatment of spousal sexual violence is “grounded in respect for the complexity of the institution of marriage”, and is both reasonable and based on intelligible differentia, which satisfy Articles 14, 15, 19 and 21 of the Constitution.
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