‘Laws on marital rape cannot be “suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”
Remember when Women and Child Development Minister, Maneka Gandhi had written this to the Rajya Sabha when asked about Centre’s plans to criminalise marital rape? She had then faced the wrath of many human rights activists. However, she later did a complete U-turn, saying that the Centre was contemplating criminalizing marital rape.
Marital rape is non-consensual sex where the perpetrator is the victim’s spouse. Typically, this should be considered as one of the gravest forms of crime as the victim is married to an abuser who can take advantage of the relationship and sexually abuse her repeatedly.
Yet, successive governments have been indifferent towards marital rape and the need to criminalise it. This despite a number of progressive recommendations from expert bodies created to study the subject, most notably the Justice J.S Verma Committee, which was set up in the aftermath of the Delhi Gang Rape Case, 2012. The Committee delineated three points:
That marriage or relationship between the accused and the victim (parties):
(a) cannot be used as a defence to the crime of rape or sexual violation.
(b) is not relevant in an inquiry into whether the victim consented to the sexual activity.
(c) cannot be a factor that justifies mitigated sentences for the offense of rape.
Yet, India has consistently turned a blind eye towards the evils of marital rape.
The Law on Marital Rape at Present:
The Indian Penal Code, the principal legal instrument setting forth the key criminal offences in India, penalises a person for rape when he has sexual intercourse with a woman less than 16 years of age, with or without her consent. However, sexual intercourse by a man with his own wife is not rape unless the wife is under 15 years of age.
Though the legal age to marry for boys is 21 years and 18 years for girls, if a girl marries before attaining the age of 18 years and is sexually abused by her husband, then it is not considered to be rape as she is not under 15 years of age
This anomaly, absurd though it doubtless is, is emblematic of the state of confusion and internal inconsistency that has come to characterize Indian rape law.
Pam Rajput Committee’s Report on Marital Rape:
Pam Rajput Committee in its report named ‘Status of Women in India,’ has come down heavily on the legislature for failing to recognize marital rape as an offense. It also criticized the Criminal Law (Amendment) Act, 2013 for ignoring J.S.Verma Committee’s Report on recognising marital rape as an offense irrespective of the age of the woman.
Protection of Children from Sexual Offences (POCSO) Act, 2012 on Marital Rape:
One Act that recognises marital rape (at least till the age of 18 years), is POCSO Act. The Act penalises sexual intercourse with a person under 18 years of age irrespective of their gender, age, marital status or even consent.
Criticism Against POCSO:
POCSO does not recognise consensual sex with a person below 18 years of age. Many experts have criticized this new age of consent as too high. It is in total disregard to the social reality as the law intends to assume that all adolescents in the country are sexually inactive and in any case of an adolescent sexual activity, the law would disregard the consent given by an individual.
This would lead to draconian and regressive effects. Moreover, the Act states that where the victim is below the age of 16, then it would be presumed that the accused has committed the offence.
A few instances of consensual sex involving individuals below 18 years:
(i) A 15-year-old girl eloped and married a 22-year-old man. Her mother filed a case of kidnap and sexual assault against the man. The girl admitted in the court that she had willingly gone with him and had sexual intercourse. In such a case, under POCSO, the man would be held guilty, as it does not recognise consensual sex with anyone below the age of 18 years.
However, the judge held that strict interpretation of the provisions of POCSO would mean that ‘an individual below 18 years of age has no choice over his/her body and cannot be allowed to have pleasures associated with one’s body.’ Hence, the man was acquitted.
(ii) In another instance, a pregnant girl aged 14 years admitted before the court that the only reason she and her mother filed a case against the man she had sexual intercourse is because he refused to marry her. The man was acquitted when he offered to marry her and provided shelter to her mother.
Criminalising Marital Rape Suits in All Contexts, Whether Indian or Not:
Extant laws in India have contrasting provisions on marital rape, thereby giving rise to unfettered discretion in the hands of judges to interpret the law in whatever way they deem fit. This has resulted in inconsistent verdicts being delivered by different judges while interpreting the self-same provisions – an ominous sign for a legal system that is founded upon the ideals of certainty and predictability.
A study conducted by International Centre for Women and United Nations Population Fund reveals that a vast majority of sexual violence faced by women was within marriage itself. Only 2.3% of the rape cases were committed by other men.
This study should have been more than enough to meet the government’s requirement of data showing enough number of marital rape cases in India. It should be noted that the survey was only conducted in a few states, the number would have significantly gone up had it covered all states.
Therefore, it is high time that India enacted a law that specifically covered marital rape as an offense. Marriage does not mean forgoing one’s dignity. Any law which presumes this to be the case should have no place in the statute book in a liberal and progressive democracy.