Aarti Swaroop Bahl
ADVOCATE
High Court of Jammu, J&K, India
Judicial Cases Concerning Marital Rapes
Courts have dealt with numerous cases concerning marital
rape and have delivered their decisions keeping in mind the
necessary aspects of society such as:
In the case of RIT Foundation vs Union of India, the
union government stated while taking a stand that if
marital rape is criminalized the sacred institution of
marriage will be destabilized.
The Supreme Court in case of Independent Thought vs
Union of India and Anr [6] held that if the minor wife
whose age is between fifteen to eighteen years is
victimized of marital rape, then such act of her husband
shall be considered as criminal conduct. However, the
court did not give much emphasis to those cases where
the wife is above eighteen year of age.
The Hon’ble High Court of Delhi has rightly pointed out
in the case of Meena & Anr. v. State & Anr. on 17
October, 2012 where the Court observed that if a girl who
is not the wife of the man but is below 16 years of age (15
as per the Criminal Law Amendment 2013) then even the
consensual intercourse between the two amounts to rape.
But if the girl is above 16 years and is wife of the man,
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then even the forced intercourse is not rape. This
provision in the Indian Penal Code, 1860 is a specific
illustration which shows that the legislature has
legitimized the concept of child marriage by keeping a
lower age of consent for marital intercourse.
In case of Saretha vs T. Venkata Subbaih[7], the court
held that the woman’s vested right will equally be violated
in the cases where she is forced to have sexual
intercourse with her husband against her will. The rights
and duties shall be provided to both the partners in an
equal manner. The rights of wife do not get ceased once
she enters into marital association with her husband.
One of the most important decisions in the history of
Indian judiciary read this case analysis to find out how the
Supreme Court made its move to hold that marital rape is
non-existent in the Indian fabric Independent Thought
v. Union of India
Conclusion of the judgement:- In Independent
Thought v. Union of India, a division bench of the Supreme
Court of India read down Exception 2 to Section 375,
Indian Penal Code, which now stands thus altered
as “Sexual intercourse by a man with his wife, the wife not
being less than 18 years of age, is not rape”.
Issues
The main issue in the case was: Whether the exception 2
to section 375 of Indian Penal Code requires modification?
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Summary of court decision and judgment
The exception to marital rape, as applicable to minor girls,
was declared unconstitutional for violating two
fundamental rights: Article 14 and Article 21, Constitution
of India.
It was held that there was no discernable object behind the
distinction between “married” and “unmarried” minor girls.
Even if there were an object, the Court added, there was no
rational nexus between the marital status of a minor girl on
the one hand, and the “unclear object” on the other. The
classification was, therefore, held to be arbitrary, and
violative of Article 14. There is no discernible object behind
classifying women into “married” and “unmarried” when
considering their right to refuse consent to sexual
intercourse. A woman cannot be deemed to have implicitly
consented to sexual intercourse with her husband simply
by virtue of marriage. In fact, the same sentiment was
expressed by the Supreme Court, which held,
“It must be remembered that those days are long gone
when a married woman or a married girl child [not just a
married girl child] could be treated as subordinate to her
husband or at his beck and call or as his property.
Constitutionally a female [not just a minor female] has equal
rights as a male and no statute should be interpreted or
understood to derogate from this position. If there is some
theory that propounds such an unconstitutional myth, then
that theory deserves to be completely demolished.”
The instant decision has taken a major step to protect the
girl child by criminalizing sexual intercourse with a wife
below 18 years. However, Hon’ble Supreme Court had not
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laid down any special provision for dealing with such cases
where the interest of other children is also at stake. It did
not consider those cases where the husband is also a
minor and would be as innocent as the girl if have
consensual sex with her. In India, cases of eloping and
marriage are very prevalent; the Apex Court’s ignorance
towards such cases just because they can be generalized
under the child marriage cases is against the interest of the
boy child.
The Court also tried to not comment on the “marital rape”
issue where the girl is above 18 years by emphasizing that
“marital rape” is not the issue before the court and
judgment should not be observed in any way for the issue
of “marital rape”. The reasoning court applied for
concluding that Exception 2 is violative of Fundamental
Rights was equally applicable to a girl above 18 years old
whose right to dignity is injured by the forceful sexual
relation.
Kerala HC recognises marital rape as a ground for
divorce
“Merely for the reason that the law does not recognise
marital rape under penal law, it does not inhibit the court
from recognizing the same as a form of cruelty to grant
divorce,” the Kerala High Court said.
RIT FOUNDATION VS. U.O.I (Delhi High Court)
Written Statement by the council for the petitioner
[Link]
[Link]
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The judgement is still pending as the Union government
has informed the Delhi high court that marital rape cannot
be made into a criminal offence until the Centre’s
consultation with all stakeholders is complete, paving the
way for comprehensive amendments in criminal law
instead of “piecemeal” changes. Submitting a fresh affidavit
in response to a clutch of petitions to criminalise marital
rape, the Centre maintained that it is examining the issue
of broad changes in criminal law of the country and that
the petitioner could also give their suggestions to the
competent authorities.
The affidavit, filed on Thursday, stated that the exception
to Section 375 of the Indian Penal Code, which exempts
forceful sexual intercourse by a man with his own wife
from the offence of rape, cannot be struck down at the
instance of the petitioner alone. “Principles of natural
justice require larger hearing of all stakeholders,”
emphasised the government.
The government’s petition indicates no change in its
position -- and comes amid a rising chorus seeking the
criminalisation of marital rape.
Concluding Remarks:
If in any case this judgement goes in the favour of
petitioners, adequate safeguards need to be included to
ensure that husbands and their families are not roped in
false marital rape cases.
Proper mechanism, checks and balances should be
introduced, implemented to avoid misusing marital rape
law like the dowry law.
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Just legal reform is not sufficient as along with legal reform
country also need social reform so that this menance could
be eradicated from the society. It is the progressive social
consciousness which is the need of an hour.