“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”, said Sir Mathew Hale, Chief Justice of England prior to his death in 1676. While nations across the globe conceded the above principle to be redundant decades ago, the Indian society still snuggles within its hypocrite bubble of traditions above consent.
The bygone provisions under Section 375 of Indian Penal Code explicitly defined Rape as a sexual intercourse committed by a man with a woman against her will and without her consent and other instances where the consent obtained was not adequate to justify the sexual intercourse. This provision from 1860 confined the expression ‘sexual intercourse’ to mere penile-vaginal penetration. It took the Indian Judiciary some 150 years, hundreds of rape victims, Nirbhaya and an enraged and mourning nation to widen the definition of Rape. The 2012 homicidal gang-rape in the capital city forced the legislatures to renovate the primordial Act. What followed was the setting up of Justice Verma committee which submitted an extensive report criticizing the lack of lawmakers, the insensitivity of the executive and the gender bias still fostering in the archaic Indian society. The recommendations and work of the Committee received admiration both from within the country and internationally. Regrettably, the Criminal Law (Amendment) Bill, 2013 did not adequately reflect the labour of the Committee. Moreover, it failed to immune the Indian women from violence, harassment and social stigmas. It failed to save a 16-year-old victim of child marriage from being raped by a man, many a time, double her age. It failed a bride, a wife, a homemaker, a mother from exercising her right to consent. It failed half the population of the Nation.
Recently the Apex Court recognised the blunder of discriminating ‘minors’ on their marital status while dealing with cases of sexual assault. In the recent judgement of Independent Thought vs. The Union of India, the exception to the definition of Rape ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape’ was struck down. The court took cognizance of the fact that classification of a minor girl aged between 15-18 years on the basis of her marital status is absolutely arbitrary and violated the fundamental right of the female to her right to life, bodily integrity and dignity. Further, the fact that the Criminal Law (Amendment) Bill, 2013, Prohibition of Child Marriage Act, 2006, Juvenile Justice (Care and Protection of Children) Act, 2012 and the Protection of Children from Sexual Offences Act, 2012 recognize the age of consent and the age of majority to be 18 makes it unambiguously obvious that not only is a marriage of a child below 18 years of age void in the eyes of law but also that such a child must be guarded by law against any kind of violence. While the judgement did raise anticipation on criminalising marital rape, the court made it clear that the question of marital rape, in general, has not been touched upon by this judgement. The judgement, however, quoted the recommendations on Amendment of the Criminal law by Justice Verma Committee on Marital Rape wherein it was stated that the exception for marital rape roots from an orthodox perception of marriage which considered wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. The Indian Parliament and the Judiciary have at multiple times stated that marital rape is not a criminal offence thus re-emphasizing the century-old stigma of women being treated as chattel and considered secondary is here to stay in India.
While rationalising marital rape it has been stated that a modification to the law will make innocent husbands vulnerable. Further, the word ‘consent’ has been grossly vandalised. The level of absurdity in the provision of an exception to rape with regards to married women does not adapt to the modern, democratic society. While every healthy democracy in the world has bestowed its women with equal rights in a marriage, India is still deliberating to declare sexual assault on a woman as an offence on the grounds that the assaulter is related to the victim. The Judiciary fears that such an interference of law could damage the institution of marriage and hence it deems fit that an Indian Woman is forced in her own bed by her husband rather than providing her with the freedom and the right to live a dignified life and the right to her body.
The Report of the Working Group on the Universal Periodic Review for India for the 36th Session of the Human Rights Council refers to recommendations made by several countries to remove the exception relating to marital rape from the definition of rape in Section 375 of the I.P.C.
Indian Women have come a long way. From burning themselves with the funeral pyre of their husbands to leading businesses alone, from being restricted to the kitchen to touching the skies, from being a homemaker to leading masses, Indian Women have done it all. It is high time that we recognise their equal right in a marriage and stop concealing it behind the shield of tradition. It is high time that the Parliament and the Judiciary understand that “a rapist remains a rapist regardless of his relationship with the victim.”
– Anjani Raipat