Courts continue to differ in views on marital rape

Context:

Four years after the Supreme Court referred to Justice J.S. Verma committee’s recommendation to make marital rape a crime, Indian courts continue to take views on marital rape that are the polar opposite of each other. 

Relevance:

GS-II: Social Justice (Issues related to Women, Government Policies and Initiatives), GS-II: Polity and Governance (Important Judgements and Committees)

Dimensions of the Article:

1. Justice Verma Committee Report Summary 
2. Status of Marital Rape in India
3. Criticism of India’s Legal regime on Marital Rape
4. On courts differing in views on marital rape

Justice Verma Committee Report Summary 

• Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.
• The Committee submitted its report in 2013, making recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.

Rape

• The Committee recommended that the gradation of sexual offences should be retained in the Indian Penal Code, 1860 (IPC). The Committee was of the view that rape and sexual assault are not merely crimes of passion but an expression of power.
• Hence, it suggested that any non-consensual penetration of a sexual nature (not to be limited to penetration of the vagina, mouth or anus) should be included in the definition of rape. 

Marital Rape

• The IPC differentiates between rape within marriage and outside marriage.  Under the IPC sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. 
• The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.
• Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant. 

Sexual assault

• The term outraging the modesty of a woman is not defined in the IPC.  Thus, where penetration cannot be proved, the offence is categorized as defined under Section 354 of the IPC with 2 years imprisonment.
• The Committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault.  The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature.
• The sexual nature of an act should be determined on the basis of the circumstances.  Sexual gratification as a motive for the act should not be prerequisite for proving the offence.

Verbal sexual assault

• Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 are:
• Domestic workers should be included within the purview of the Bill.
• Under the Bill the complainant and the respondent are first required to attempt conciliation.  This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace to women.
• The employer should pay compensation to the woman who has suffered sexual harassment.
• The Bill requires the employer to institute an internal complaints committee to which complaints must be filed.

Acid attack

• The Committee opined that the offence should not be clubbed under the provisions of grievous hurt which is punishable with 7 years imprisonment under the IPC.

Offences against women in conflict areas

• The continuance of Armed Forces (Special Powers) Act (AFSPA) in conflict areas needs to be revisited according to the committee.
• AFSPA requires a sanction by the central government for initiating prosecution against armed forces personnel.  The Committee has recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged.

Trafficking

• The Committee noted that the Immoral Trafficking Prevention Act, 1956 did not define trafficking comprehensively since it only criminalised trafficking for the purpose of prostitution.  It recommended that the provisions of the IPC on slavery be amended to criminalise trafficking by threat, force or inducement.

Child sexual abuse

• The Committee has recommended that the terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.         

Punishment for crimes against women

• The Committee rejected the proposal for chemical castration as it fails to treat the social foundations of rape.
• It opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrence to serious crimes.  It recommended life imprisonment for rape.

Police reforms

• The Committee has recommended certain steps to reform the police which include establishment of State Security Commissions to ensure that state governments do not exercise influence on the state police.
• The Commission would lay down broad policy guidelines so that the Police acts according to the law.
• A Police Establishment Board should be established to decide all transfers, postings and promotions of officers. 

Status of Marital Rape in India

• The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
• Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
• However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution.
• As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
• The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise.

Criticism of India’s Legal regime on Marital Rape

• Marital rape is criminalized in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.
• The Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article 14 and Article 21 of the Indian Constitution.
• Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution.
• A married woman has the same right to control her own body as does an unmarried woman. Unfortunately, this principle is not upheld in Indian rape laws.
• Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence. But English laws have been amended and marital rape was criminalised way back in 1991. No Indian government has, however, so far shown an active interest in remedying this problem.

On courts differing in views on marital rape

• Kerala High Court backed marital rape as a valid ground for divorce.
• A court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralysed.
• In 2017, the Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.
• Gujarat High Court has held that “a law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape”.
• In the Suchita Srivastava v. Chandigarh Administration case, the SC backed a “woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods”. The court has held that “rape is not only a crime against the person of a woman, it is a crime against the entire society”.

-Source: The Hindu