The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Marital rape in India is empowered by both the ideology of the state. And the age-long interpretation of the institution of marriage by the judiciary. No matter the arguments laid down by both the institutions. In support of Marital Rape, it boils down to robbing women of their agency to consent. Subsequently creating a hierarchy of female consent based on heteronormative power dynamics. Women under 18 can only ever be raped. Since they have no agency. While women who are married can never be raped because they now exist as their husband’s property. Still without their own agency.
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1 Sexual Violence on Men1.1 Marital Rape Arguments
Conversely, men can never be perceived as victims of sexual violence, because they are expected to be the perpetrators instead. In the eyes of the law, their agency is infinite and never suspended. This is apparent in the lack of recognition in The Indian Penal Code[1] (hereinafter ‘IPC’) for both, marital rape, as well as the rape of men.
Even in Rao, which is otherwise considered good law, the court is of the opinion that female consent always involves ‘submission’,[2] reinforcing heteronormative power structures. This idea of women submitting instead of partaking in sexual intercourse. Renders it easier to enforce a women’s lifelong consent by submission to her husband during marriage. While the landmark judgment of Independent Thought[3] resulted in an amendment that increased the age of consent within marriages to 18 years, marital rape of adults remains legal. The court stated that it is not dealing with the issue of marital rape. Through all the arguments put forth applied to marital rape of adult women as well.
There are three main arguments laid down against the criminalization of marital rape. It threatens the sanctity of the institution of marriage, s. 498A of the IPC[4] already provides remedy under cruelty and criminalizing marital rape attacks the cultural values in India.[5] However, these arguments are fallacious. Firstly, there already exist other laws including laws protecting women from domestic violence[6] and dowry.[7] This shows that the court has indeed stepped in before in order to uphold legal recourse even in the private sphere of marriage.
Ironically, women have recourse for lesser crimes than rape committed by their husbands but no recourse for rape itself. In fact, s. 376B of IPC[8] recognizes marital rape during the time of separation of a husband and wife. Here the sentence period which extends from only 2-7 years shows how the court is not ready to equate rape in marriage to rape outside of it. Secondly, rape is a distinct crime and hence cannot come under cruelty.
[9] Furthermore, seeking a remedy under Cruelty becomes dangerous as it enforces the idea that sexual violence in isolation is not ‘violent’ enough, hence requiring additional physical violence to constitute a crime. This presupposes the existence of some degree of violence towards women during heterosexual intercourse, and the judicial interpretation of consent becomes an attempt at defining that threshold of acceptable and lawful violence. Consequently, marital rape becomes inherently non-violent, even if domestic violence continues to be illegal. The court has to distinguish between constitutional morality and public morality while taking culture into consideration. ‘The argument that public morality will be relevant for adjudging constitutional morality is a dangerous one to take.’[10] Public morality at large can adhere to the caste system or criminalization of homosexuality, but it is constitutional morality that is in contrast with the general cultural ideologies that push the courts to protect the minorities.
‘The argument that a crime is culturally acceptable is not a reason to not criminalize it. If anything, it should act as a catalyst to criminalization since it indicates a culture that is accepting of a crime.[11]
Another interesting argument put forth is of the private sphere of marriage’ which is used as a rebut to the claim that legalizing marital rape is unconstitutional as under article 14 of the Indian Constitution.[12] However, the private sphere is fictitious at best owing to the laws that have come to legally protect women from dowry, domestic abuse, and cruelty.
There is no clear reason given as to why one law can exist to protect women under the private sphere of marriage while the other cannot. The state does not hesitate to enter into the so-called private sphere when it comes to abortion wherein a woman’s private sphere is violated. ‘The State can deem criminalizing acts such as adultery or intercourse between consenting adults of the same gender as appropriate and at the same time, refuse to criminalize marital rape due to its place in the private sphere.’ It then renders state intervention as selective.
Another argument that often poses is the misuse of protection from marital rape by women. However, the fact that law can misuse cannot be reason enough as to why it should not be enforced in the first place. The existence of other laws protecting women despite cases of misuse is testament enough.
The JS Verma Report, 2013[13] acts as one of the landmark reports when it comes to the reformation of the laws under sexual offenses post the Nirbhaya Case outbreak. It gives four effective suggestions for the criminalization of marital rape. It asks for removal of the exception clause under IPC,[14] further asking a specific addition stating that marriage is not a defense for rape.
Moreover, it asks to remove the presumption of consent. In marriage and also to keep the sentencing period for marital rape. As same as the crime of rape. Only removal of the exception clause is insufficient and to paired with codifying. That marriage is not a defense to marriage. A comparative analysis of the law in Ghana. Wherein marital rape criminalizes shows that criminalizing marital rape isn’t enough and is in sync with the JS Verma Report. That there should be a mention of no defense. While the gravity and sentencing of Marital Rape should be the same as Rape. Proving it can pose a challenge, and hence, evidence collection and interpretation will have to be done differently.
Consent again plays a crucial role as marriage makes it difficult to determine consent. And raises the question of which party should the onus lie to. If consent presumes, the victim will always have to prove a lack of consent. Whereas if the onus is on the husband, he will be held guilty of the accusation of rape. Made by the wife until proved otherwise. The way to go forward can be for the court to take medical (indicating any physical or mental trauma) and circumstantial evidence into high priority. Here, the past behavior of the husband will also come into play even though it is in conflict with s 53 and 54 of the Evidence Act.[15] The general lack of force not amounting as a factor while determining rape might also see a shift when determining marital rape.
Many changes in a similar fashion would use in order to determine Marital Rape. However, these difficulties should not result in not criminalizing marital rape in the first place. In light of the above article, the reasons provided behind not criminalizing Marital Rape seem arbitrary while the selective intervention on the part of the state masked as not entering the private sphere portrays a deliberate attempt to keep women from their bodily autonomy and sexual agency. In doing so, courts reify that consent is never a woman’s to give. It is a man’s to take, and by extension, society’s to interpret and evaluate.
[1] The Indian Penal Code (Act no. 45/1860) (India).
[2] Rao Harnarain Singh Sheoji Singh and Ors. v. The State, AIR 1958 P&H 123 (India).
[3] Independent Thought v. Union of India (UOI) and Ors., AIR 2017 SC 4904 (India).
[4] The Indian Penal Code (Act no. 45/1860) (India), § 498A.
[5] Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding It’s Constitutional, Cultural and Legal Impact, 11 NUJS L. REV. 121 (2018).
[6] Domestic Violence Act, 2005 (India).
[7] Dowry Prohibition Act, 1961 (India).
[8] The Indian Penal Code (Act no. 45/1860) (India), § 376B.
[9] Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding It’s Constitutional, Cultural and Legal Impact, 11 NUJS L. REV. 121 (2018).
[10] Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding It’s Constitutional, Cultural and Legal Impact, 11 NUJS L. REV. 121 (2018).
[11] Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding Its Constitutional, Cultural and Legal Impact, 11 NUJS L. REV. 121 (2018).
[12] Constitution of India, 1949 (India), Article 14.
[13] JUSTICE J.S. VERMA, JUSTICE LEILA SETH, GOPAL SUBRAMANIAM, REPORTS OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAW, Jan. 23, 2013.
[14] The Indian Penal Code (Act no. 45/1860) (India), § 375 Exception 2.
[15] The Indian Evidence Act 1872 (India), § 53, 54.
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