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Marital Rape Should be Criminalized. Introduction Rape per se is an offence against woman, violating her dignity and self-respect. However, when it occurs within the four-walls of a matrimonial home, it reduces a woman to the status of an object used merely for sexual gratification. There is an immediate need for a distinct law on marital rape in India, which should be at par with the accepted international norms on this issue. Rape within marriage is a concept that agonizes women to the very core. The dread of having to face it and silently suffer through it is an unbearable thought that affects the psyche of a woman. This self-enforced silence has a very detrimental effect on the emotional, psychological, and mental stability of women. However, this silence is not exactly self-enforced. The lack of laws and abundant social stigmas against the act of marital rape is one of the primary reasons that the evil of marital rape is still hidden behind the sanctity of marriage. Though we have advanced in every possible field, marital rape is not considered as an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman must protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything is dependent on the interpretation by the Courts. As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape under Section 375:
- When the wife is between 12 – 15 years of age, offence punishable with imprisonment up to 2 years or fine, or both.
- When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years, but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
- Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
- Rape of wife of above 15 years in age is not punishable. In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence. Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband. This is only a piecemeal legislation and much more needs to be done by the Parliament regarding marital rape.
Why Marital Rape should be Criminalized In Contravention of Other National Laws
- Allowing an exception to marital rape to persist is irrational when looking at the bigger picture of national laws in India. Husbands can be held accountable for other, lesser crimes against their wives except for rape.
- Under the national laws of India, a husband can be held accountable for voluntarily causing hurt, voluntarily causing hurt by dangerous weapons or means, voluntarily causing grievous hurt, assault with the intention of outraging her modesty, sexual harassment, assault with the intent to disrobe, voyeurism, and stalking.
- If all these acts can be criminal even in a marital relationship, it is contradictory to purport that criminalizing marital rape is not feasible in India. It is also discriminatory and contradictory to only provide an exception for rape, while still criminalizing various other offenses. Furthermore, maintaining the spousal exception is in contravention to the Protection of Human Rights Act of 1993. The Act defines human rights to include right to life, liberty, equality, and dignity.
- The Court in Independent Thought vs. Union of India stipulated that forced sexual intercourse with a girl child by her husband violates her rights protected under the Protection of Human Rights Act.
- The Protection of Human Rights Act does not limit its protection to children. As such, it reasonably follows that any forced intercourse would violate an individual’s rights under the Protection of Human Rights Act. A similar argument can be made regarding the Protection of Women from Domestic Violence Act, 2005.
- Allowing the marital rape exception to stand even when it is shown to harm and injure women physically and emotionally directly violates the rights protected under the Domestic Violence Act. Violation of Constitutional Guarantees
- Preserving Exception 2 to Section 375 of the Indian Penal Code violates rights and protections guaranteed by the Indian Constitution, specifically Article 14, 15(3), and 21.
- Article 14 of the Constitution of India is an equal protection clause that guarantees equality before the law and prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.
various other physical and mental repercussions. The Court has recognized on multiple occasions that rape inevitably causes serious physical and psychological harm.
- Under Independent Thought vs. Union of India, where the Court struck down the marital rape exception for child brides, they also conceded that the traumatic consequences of rape affect adult victims as well.
- Consequentially, considering the Court’s recognition of the right to good health as a fundamental right protected under the right to life in Article 21 of the Constitution and the Court’s assertion that rape inevitably causes physical and psychological consequences, it reasonably follows that the exception to marital rape in Section 375 of the Indian Penal Code violates the Constitution of India. In Contravention of International Law Obligations
- India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women(“CEDAW”), the International Covenant on Civil and Political Rights (“ICCPR”), and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). India is also a signatory of the Universal Declaration of Human Rights (“UDHR”).
- The CEDAW Committee has identified that gender-based violence nullifies various other rights guaranteed under international treaties, including the right to be free from discrimination, the right to life, right to liberty and security, right to equality in the family, and right to health and well-being.
- The due diligence requirement under international law treaties, specifically under CEDAW, requires states to “take all appropriate measures” to eliminate all forms of discrimination against women.
- Furthermore, Article 2(b) of CEDAW mandates states to adopt all legislation necessary to eliminate all forms of discrimination against women. Discrimination against women has been defined to include gender-based violence including acts that inflict physical, mental, or sexual harm.
- Moreover, the obligation under Article 2 of CEDAW specifies that the state is required to take all appropriate measures to eliminate discrimination against women not only on behalf of the Government, but also to eliminate discrimination perpetrated by any person or organization.
- Under the international obligation regarding prevention of violence against women, states are required to prevent, investigate, prosecute, and compensate with due diligence. As
such, it has been established that the due diligence requirement under CEDAW requires the criminalization of marital rape under national law.
- Furthermore, allowing an exception for marital rape infringes on a woman’s right to be free from discrimination under international law. As stated above, freedom from discrimination is protected under CEDAW. It is also implicitly protected under the ICECSR since it is recognized that intimate partner violence weakens the ability of an individual to meaningfully benefit from economic, social, and cultural rights.
- Marital rape is an infringement on the right to life. The right to life is an essential right guaranteed by all human rights treaties and customary international law. Specific guarantees to the right to life can be found in the ICCPT135 and the UDHR. Violence against women in the context of intimate partner violence has been recognized as a leading cause of death around the globe.
- Marital rape also equates to other consequences that infringe on the right to life including increases in miscarriages, complications during pregnancies, unsafe abortion practices, and the higher likelihood of contracting sexual transmitted diseases, all of which can lead to fatal results.
- As a result, criminalization of marital rape is a fundamental obligation states must undertake to meet their international law obligations. Marital rape also violates the right to liberty and security of person. The right to liberty is again guaranteed by the ICCPR and UDHR.
- Article 9 of the ICCPR requires State parties to respond appropriately to patterns of violence against women. Violence against women in the form of marital rape can potentially continue relentlessly throughout the relationship. As such, under international law, States are required to recognize marital rape as a pattern of violence against women and take appropriate measures to criminalize and penalize such behavior. Additionally, gender-based violence infringes on the right to equality in the family guaranteed under international obligations.
- Under the CEDAW, States are required to change social and cultural patterns to eliminate prejudices that perpetuate stereotypes between men and women. Maintaining an exception for marital rape perpetuates stereotypes that a woman is the sexual property of her husband negating any semblance of equality within the family. Criminalizing marital rape refutes the idea that women are the sexual property of their husbands and indicates that marriage should be built on equal grounds between both spouses.
- As such, eradicating the exception to marital rape is necessary to uphold India’s obligation to promote equality within the family. Lastly, criminalizing marital rape is tantamount in upholding India’s international obligation to protect the right to health and
- Remedy Hostile Judicial Practices a. Furthermore, the hostility portrayed by the judiciary in previous marital violence cases where the bench has consistently underplayed the seriousness of marital rape also needs to be challenged. Such practices can be efficiently combatted by providing sentencing guidelines to courts regarding marital sexual violence cases. It is also imperative to provide gender-sensitive training to judicial officials.
- Establish Accessible Crisis Centers a. Moreover, an important aspect of ensuring that marital violence against women is appropriately prevented, the State needs to ensure that women have access to important support mechanisms. Many women, particularly in rural areas of India will not report sexual violence to authorities because of their financial dependency on their husbands. b. They fear that if they are separated from their husbands, they will be left with no alternative support system. As such, the State should establish widespread and accessible crisis centers where female victims of violence and rape can receive shelter, medical and psychological attention, legal assistance, and other needed support services.
- Combat Damaging Stereotypes a. Lastly, persistence of marital rape in India can be attributed to the ingrained patriarchal mindsets as well as debilitating social and economic structures prevalent throughout the country. Women are less likely to report instances of rape within their marriage because of the social stigma attached to rape victims in India as well as the disrepute that attacks women who fail in “making their marriage work.” b. As such, an essential factor in combatting marital rape is the fight against deep-rooted stigma and stereotypes concerning women. Specifically, it is imperative to educate the masses that marriage does not indicate that a woman’s legal and sexual autonomy have ceased to exist. c. Elimination of these and other stereotypes can be served by widespread education and dissemination of information regarding women’s equality in social, political, and economic institutions as well as women’s bodily autonomy before and after marriage. The State needs to prioritize a national movement to fight and eliminate patriarchal stereotypes by targeted awareness-raising campaigns. d. Along with educating girls on their rights, it is imperative to involve and educate men and boys in the effort to combat marital rape as well as the overarching goal of attaining gender equality in India.
Child Marriage The Prohibition of Child Marriage (Amendment) Bill, 2021 The Bill amends the Prohibition of Child Marriage Act, 2006 to increase the minimum age of marriage of females to 21 years. Further, the Bill will override any other law, custom, or practice. Under the 2006 Act, a person married below the minimum age may apply for annulment within two years of attaining majority (i.e., before 20 years of age). The Bill increases this to five years (i.e., 23 years of age). Problems with the Bill
1. Different age for attaining majority and being allowed to marry a. The Bill increases the minimum age of marriage for females to 21 years, bringing it on par with that for males. However, the age of attaining majority is 18 years under the Majority Act, 1875. This difference may have consequences regarding the rights and responsibilities of persons between 18 and 21 years of age. 2. Prohibiting marriages between the ages of 18 and 21 years a. There are inconsistencies between the minimum age for marriage and certain decisions of the Supreme Court. In the case Shafin Jahan vs Ashokan and Others 2018, the Supreme Court said that right to marry is part of right to life under Article 21 of the Constitution. b. It stated that the right cannot be taken away except through a law which is substantively and procedurally fair, just, and reasonable. c. In the case Shakti Vahini vs Union of India and Others in 2018, the Court held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, which is recognized under Articles 19 and 21 of the Constitution. d. The Bill restricts the right to marry before the age of 21 years. The question is whether this restriction for those between the ages of 18 and 21 years meets the standards of reasonable restrictions as explained by courts. In general, for any restriction of fundamental rights by law, there needs to be three criteria: a public purpose, the restriction having a nexus with such purpose, and absence of a less intrusive way to achieve the purpose. e. In the case of Navtej Singh Johar and Others Vs Union of India 2018, the Supreme Court, while reading down Section 377 of the Indian Penal Code, 1860, ruled that consensual sex between consenting adults is a fundamental right under Articles 14, 15, 19 and 21 of the Constitution. If this Bill were passed, it would be legal to have
Why Minimum Age of Marriage should not be raised to from 18 to 21 years.
1. Gender equality will not be promoted by raising the minimum age of marriage of women (now fixed at 18) to that fixed for men (21). a. A citizen becomes an adult at 18. If a citizen is old enough to elect governments, are they not old enough to select a life partner? If they have the right to decide the future of the nation; do they not have the right to decide their own future? b. The Law Commission report of 2008, on reforming family law, recommended a uniform age of marriage for boys and girls at 18 and not 21. The commission noted that, “the age difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be that of equals.” The Indian Majority Act, 1875 is equal for men and women and grant the right to enter contracts for those who attain the age of 18. The CEDAW (the international Convention on the Elimination of all Forms of Discrimination against Women) also recommends 18 as the minimum age of marriage. c. Thus, we recommend that the minimum age of marriage be fixed at 18 for both men and women. 2. Only raising the age of marriage for women from 18 to 21 will not promote better health among newborn and incredibly young children. a. The Jaitley Committee has cited international studies that show that children born to adolescent mothers (10-19) years are more likely to be stunted and of low weight than those born to young adults (21-24). b. But the issue is: If girls and women remain malnourished from birth onwards, getting married at 21 instead of 18, and having their first child at 22 instead of 19 cannot really improve the possibility of maternal and child survival and health. c. If the government is serious about promoting better maternal and neonatal health and survival, why is it slashing the allocations of the Integrated Child Development Services (ICDS) Scheme (the Anganwadi program) in every successive budget? Why is it not instead universalizing the ICDS program; ensuring that as part of the ICDS, every adolescent girl receives her required daily quota of calories and protein; setting up sufficiently equipped primary health centers in every block where safe birth can take place; giving the full number of maternity benefits of Rs. 6,000/- without any disqualifying conditions in the case of every birth; and recognizing Anganwadi and ASHA workers and midday meal cooks as regular government employees with all benefits? 3. It will not promote better health and education for women without broadening and strengthening the public health and government education systems.
a. 18 is currently the minimum age of marriage for women: women have the legal right to choose not to marry at that age, or at any age. b. The proposed amendment will only end up criminalizing all marriages in which the woman is below 21 years as ‘child marriage’, thus leaving every such woman as well as every child born to such unions, bereft of legal protections and pushed outside the formal reproductive healthcare network. c. The government needs to promote education (including higher education) and also create job opportunities for women and support women who are resisting forced marriages. If the government is serious about discouraging child marriages and supporting women’s education, why does it avoid taking the following measures:
- Extending the RTE Act to include children up to 18 years to reduce drop-out of girl children at the middle-school stage
- Ensuring free and quality education for girl children and women “from KG to PG”
- Enhance incentives and provide free higher education to women students
- Providing a government helpline offering immediate legal help and support to women and persons who are being forced by parents into unwanted marriage at any age, and to persons in inter-caste, inter-faith relationships.
4. The proposed amendment will not empower women a. In India, citizens become adults at 18. But NFHS and other surveys have shown how some 60% of adult women are denied the right to take decisions of their own: whether it be small decisions like leaving the house to visit the market or a friend; or big decisions relating to marriage and motherhood. Studies have shown that in many instances the parents of the girl or woman falsely accuse her partner of rape even in cases of consensual elopements. b. In these cases, the girl or woman is subjected to torture in the custody of her parents; and parents often falsely claim that their adult daughter is a minor, so that she is sent to a “shelter home” pending trial, during which she is only allowed to meet her parental family, not her boyfriend or husband. This parental coercion is now compounded by the organized, politically backed outfits which use force and violence to break up inter-caste and inter-faith relationships. c. The proposal to increase the minimum age of marriage for women to 21 years will deprive adult women (between the ages of 18-21) from the legal right to choose to marry someone of their own choice. In other words, far from empowering women, it will empower the patriarchal violence against women’s autonomy. Far from
minimum age of marriage. The mean age of marriage has already increased to 22. (Min. of Stats, 2019 report). The age of marriage in many countries of the world is 18 years of age. It need not be different for India. g. Economic and educational status of the women concerned is a crucial factor in deterring child marriage and early marriage. If the government is really concerned about the persistence of child-marriage in many of the states and about the health of women and children, its priority should be eradication of poverty as well as improving nutritional, educational and healthcare services, and allocation of the budget for the same. Hence, we demand the withdrawal of this Bill.
