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Constitutional Law Criminal

Marital Rape: An Exclusive Ground for Divorce

The preconceived notion that arises due to the constitutional validity of exception (ii) of section 375 of IPC (marital rape), lays out an important aspect in the cases of divorce in family law. What it does is that it proposes that it is not a wrong at all and therefore there is no cruelty either. Although, marital rape has been accepted as a ground for divorce, it has been recognized under cruelty. This article argues that irrespective of the constitutionality of the said section, there is a need for marital rape to be an exclusive ground for divorce.

Ayush Mathur

Introduction

Rape in bed or Marital rape is not considerably different from the definition of rape under section 375 of the Indian Penal Code. In essence, it is not any different from rape, the only factor here is that the perpetrator is the husband, and the victim is the wife. Once the wife agrees to the marriage, it is presumed that the husband receives implicit consent from her to have sexual intercourse whenever and however he may wish. This contention is strengthened by the exception ii given in Section 375 of IPC, which explicitly decriminalises marital rape. The 8th edition of Black’s Law Dictionary classified Marital rape as “a husband’s sexual intercourse with his wife by force or without her consent.” Hence, marital rape is using the wife’s body as the husband’s property and having sexual relations with her against her will. It happens when the husband believes the wife’s body belongs to him. As marital rape is not being recognised as rape, it results in complications in seeking divorce or other remedies for women.

Regardless of how various family law acts and procedures behave, the reasons for divorce are essentially the same. This article argues in favour of establishing marital rape as an exclusive ground to the grounds for divorce. It establishes whether or not marital rape fits the frame or should be considered a distinct cause for the divorce itself by examining it through and outside the lens of cruelty. The piece, for this, follows the following segments:

Firstly, it deals with the pre-conceived and archaic notion that it is the wife’s duty and husband’s right to have sexual intercourse, which the man decides and commands. The aim is to look at the inception of this line of thought and question its reasonableness by putting it parallel to modern society and laws. Secondly, the piece examines the legal inconsistency that results from the laws on marital rape’s stagnant nature and explores how it affects family law. It aims to provide a necessary justification for why marital rape relief should be viewed as grounds for divorce in and of itself rather than interpreting it in terms of cruelty. Lastly, this piece deals with certain common perceptions and issues that need to be addressed to clarify the arguments made in this piece, the institution of marriage and not being violative.

His Right and Her Duty – Tracing the History

Hale’s Doctrine is one of the very first instances where marital rape was seen as an exception. Matthew Hale, a Chief Justice of the Court of King’s Bench in England in the 1670s, wrote, “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 has given up herself in this kind unto her husband, which she cannot retract”. Earlier, the “doctrine of coverture,” a long-standing idea widely accepted in England, proposed that a man and a woman become one person after marriage. So, it is justified that during the marriage, the woman’s very existence or right to exist is suspended, or at the very least, it is combined with the husband’s. As a result, a woman could not act against her husband’s intentions, such as making a purchase or signing a contract. In addition, the wife owed her husband a “consortium” of legal obligations, including sexual relations, in exchange for support and protection

Due to ideas like these and the still-standing patriarchal notions, the definition of rape included an exception for marital rape, whilst the Indian Penal Code was written in British India. When husbands made all the decisions, the argument that wives implicitly assent to their husband’s sexual demands may have had some merit. However, society has changed significantly since then, reflected in legislation and case laws. A parallel was drawn in Joseph Shine v Union of India while decriminalising Adultery. The Court had stated that even marital relationships are not exempted from Constitutional scrutiny and that women have their bodily autonomy, which is covered by Fundamental Rights.

From the Constitutional remedies, Fundamental Rights, and others, it can be established that citizens, irrespective of their gender, have the right to safeguard their autonomy. The J S Verma committee criticized section 375 IPC exception (2) and suggested eliminating it, observing that marital relationships should not be used as an excuse for leniency in rape cases. Marriage between the victim and the defendant cannot be used as an excuse for rape. Therefore, to say that the husband has the right to rape his wife would be as wrong as saying that the wife has the duty of forbearance and to have sexual intercourse with the husband. Criminal law indeed provides other alternatives, if not marital rape, to bring order to this chaos, which is, as will be discussed below, not enough. In family law, these provisions are not explicit and attempt to be covered under cruelty to get a divorce or a relief.

Establishing the origin and its bizarre existence in the books of law given the change in society, this following section will examine how marital rape can be made a ground for divorce, irrespective of whether it is an exception in the IPC. It further discusses the existing legal framework for marital rape and the ground for divorce under and outside cruelty in more depth.

A Case for Marital Rape as a Separate Ground for Divorce

Marital rape should have been regarded as a basis for divorce because it is obvious that it satisfies the criteria for cruelty and has been recognised as a kind of domestic violence, which is a ground for divorce. However, if made, it would be objectionable to an exception (ii) of section 375 of IPC and because then it would blatantly question the constitutionality of the exception (unless explicitly declared otherwise).

The issue that is looked on to address in this piece is not about the criminalisation of the exception of marital rape in IPC; instead, it is to contend that irrespective of whether it is a criminal offence or not, family law must provide it as a separate ground for divorce. Marital rape has already been considered a ground for divorce by a Kerala High Court judgment in 2021, but that is when it is read under the ambit of cruelty.

This section of this piece points to why there is a paramount need for marital rape as a separate ground for divorce.

The exception in section  375 of IPC brings up certain inconsistencies in the family law. For instance, Section 10(2) of the Divorce Act provides a ground for dissolution of marriage if the husband has, after the solemnisation of marriage, been held guilty of rape, sodomy, or bestiality. This section, if necessary, could easily be applied if the husband was to be held guilty of raping his wife had it not been for the said exception. Further, the irony that subsides is that forced pregnancy (rape) is not a ground for divorce but refusal to have a baby from the female is.

The cases tell us now that although women have their so-called ‘bodily autonomy and Fundamental Rights, denying sex to their husbands would be cruelty and a ground for divorce; the opposite, however, would neither be rape nor a ground for divorce. These inconsistencies point toward how marital rape as another ground for divorce is needed. Fortunately, in several cases have held that licentious and profligate conduct shall not be considered part of everyday conjugal life and that an insatiable urge for sex from a spouse would also amount to cruelty. However, nothing safeguards or binds the Court to rule in the opposite direction, wherein Justice Hale’s line of thought is followed, and cruelty is not considered at all.

This piece claims that there are two channels where a case of marital rape can be dealt with as a ground for divorce. Firstly, as is the case at present, it is contended by the wife that since the gruesome act has taken place, it must be considered cruelty and then the courts go on with their analysis and evidence to determine whether the divorce should be provided or not. In this case, the presumption is that since it is not rape, according to the IPC, it cannot be a ground for divorce. It is believed that it is not cruelty but rather the husband’s right and the wife’s duty.

So, if the Court decides to go against this presumption, then only a case of cruelty could be brought in the first place. Else it would neither be cruelty nor a ground for divorce. From here, the Court goes back to the first step, i.e., analysing the facts and evidence on whether it is cruelty and hence a ground for dissolution of marriage. Therefore, the common perception that marital rape would be too brutal to prove does not stand rigid because in both cases, i.e., marital rape and cruelty, there would be the need to prove that the rape has taken place. Then why include it in the cruelty and not have it as a separate ground for divorce? If the point is that it can be misused well, so can the ground of cruelty when viewed through a marital rape perspective.

To prevent the ‘presumption’ from the Courts from being applied to form marital rape as an issue at all, it is suggested that marital rape be considered another cause for divorce in and of itself. It not being another ground adds to the actions a Court takes, and that too with the potentially hazardous notion that forced intercourse was not wrong, to begin with. If marital rape was another ground, then the analysis procedure that begins after the case is found to fall under the category of cruelty may be handled by skipping this phase.

Institution of Marriage and Marital Rape

The following section deals with contentions against marital rape being a ground for divorce or the challenges of it destroying the institution of marriage that might arise if it is to be considered one.

The contention is that if a law is made a ground for divorce, then it would push away the institution and sanctity of marriage. Former Indian Chief Justice Dipak Misra stated, “In my opinion, marital rape should not be considered a crime in India since it will promote anarchy in families, and our society depends on its family platform for its success in protecting family values.”

It might be questioned how seeking justice for the offence that caused the marriage to become unstable becomes an obstacle when the very misdeed itself has already violated the sanctity of marriage. When one partner attempted to or engaged in the sexual abuse of the other, the marriage was already destabilised, seeking a remedy for harm that should not have been committed cannot be a reason to allow it to stay that way. Further, in Independent Thought vs Union of India & Anr., it was held that the Fundamental Rights of women—their right to protection from exploitation, their right to bodily integrity, their right to privacy, and the rights enshrined in Articles 21 and 14 of the Indian Constitution—are all violated when there is silence on marital rape.

Further in, Nimeshbhai Bharatbhai Desai Versus State of Gujarat, it was argued that criminalising marital rape would mean changing legislation based on religious practices, such as the Hindu Marriage Act, 1955,which states that a wife is obligated to have sex with her husband (section 9 of HMA, restitution of conjugal rights points towards the same).

The governments have been reluctant to outlaw marital rape. In India, for centuries, the family structure has developed, and it is argued that it can handle (marriage) difficulties, and there is also a provision under the law for cruelty towards women (according to the parliamentary panel looking at the Criminal Law (Amendment) Bill 2012). Therefore, it is believed that if marital rape were made illegal (or a separate ground for divorce), the entire family system would be put through significant stress, and that would result in greater harm to the sanctity of marriage.

Moreover, in the same case, it was said that marital rape could undermine the concept that marriage is inadmissible. The institution of marriage cannot be destroyed other than by a law making it unlawful and punitive since marriage is a personal, not an institutional, union. While divorce may end a marriage, it does not necessarily threaten to end the institution of marriage. A judicial separation may damage the institution of marriage, but the marriage itself is not likely to be destroyed. Can it be argued that judicial separation should be illegal or that no divorce should be allowed? The answer no is fairly apparent.

Given the laws on cruelty, abortion, and the grounds for divorce, the argument that matrimonial relationships should be best sorted out within the family and the state intervention should be minimal sounds hypocritical. Justice Pardiwala, in this case, coincides with the reasoning mentioned above that the marriage could be irreversibly dissolved even if the woman starts legal action under the Domestic Violence Act’s provisions.

Conclusion

To conclude, the piece has, by the abovementioned arguments established that marital rape must be a separate ground for divorce, irrespective of whether it is criminalised. Ideally, the deletion of exceptions would pave the way for clarity, but in the meantime, it is unfair for it to be interpreted under cruelty and not exclusively.

It is noted that some steps have been taken to protect women against marital rape. One of these steps is the recognition of marital rape as a basis for divorce under the category of cruelty. Another that comes close is the introduction of the Protection of Women from Domestic Violence Act, 2005, which, while not criminalising marital rape, does classify it as a form of domestic violence. Under the same act, a woman can go to Court to obtain judicial separation from her husband.

The idea of this piece is an extension of the thoughts followed above. A step further is established in this piece that must be taken to ensure this thought is not lost over the inconsistencies pointed out in the above section. There shall be a convenient and effective way to deal with divorce cases related to marital rape.

The author is a student at the National Law School of India University, Bengaluru.

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