Would Removing Exception 2 from the Rape Law Benefit Indian Women?
Sec 375 of the IPC (Rape: Proposed Section 63 of The Bharariya Nyaya Sanhita, 2023) mentions rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud, or at a time when she has been intoxicated or duped or is of unsound mental health, and in any case, if she is under 18 years of age”. Marital rape is an act committed by a person to whom the victim is married; an act of sexual intercourse with one’s spouse without her consent. Exception 2 to Section 375 (Rape: Proposed Section 63 of The Bharariya Nyaya Sanhita, 2023) provides an exception to marital sexual intercourse that is not considered rape by a man with his wife, even if done without her consent, if the wife is over 15 years of age.
On October 11th, 2017, the Apex Court of India declared this exception unconstitutional, ruling that a sexual act with a child under the age of 18 would be considered a rape even if she is the accused’s wife. However, the court did not clarify the legal status of non-consensual sexual intercourse between a husband and a wife where the wife is over 18 years of age.
Several international laws provide that marital rape should be criminalised as this is against the fundamental rights of a woman who has a right to life, a right to privacy, a right to have equal protection of the law, and a right to say NO. It supports the ideology that marital rape is itself an act that violates the fundamental human right, which is the right to make your own choice.
The Nirbhaya Case happened in 2012, which shook the nation, and the government wanted to amend the existing laws to make the provisions stringent. This led to the 2013 Criminal Law Amendment. The Criminal Amendment Act of 2013 has expressly recognised certain acts as offences, which include acid attacks, sexual harassment, voyeurism, and stalking. One of the most significant changes made is a modification of the definition of rape under the Indian Penal Code (IPC). The Amendment of 2013 and subsequent amendments have made criminal laws very stringent.
Marital rape: Constitutional validity
Violence in the form of marital rape is the worst kind of torture that a woman goes through during her marriage. Every woman deserves equal protection under the law and has the right to life and personal liberty provisioned under Articles 14 and 21 of the Constitution. But this is one side of the coin; what about the false rape cases against an innocent man? Are there any laws to protect people against these false claims? How can a husband prove that the act done was consensual and not forceful when a wife will blame him for committing marital rape? What evidence can he produce? False rape accusations are equally grave and denting to one’s reputation as the offence of rape, and hence, false rape accusations should be checked, and strict actions need to be taken against the false accuser.
Are rape laws gender-biased in India and are they being misused?
Lalita Nijhawan, an entrepreneur, stated in an article, “The law is positively biased towards women, from the availability of reservations to the constitutional provisions. The rules regarding abuse of women, ranging from sexual to economic, do not acknowledge the abuse that a man faces, showing a disparity in the legal system. The law and judiciary system don’t protect men from these shaming allegations, leading to drastic measures in the form of suicide. ”
To understand better how rape laws are being misused in India by women, let’s have a glance at some very recent cases where the courts have identified the ill-motive of the woman and disposed of the complaints.
In 2019, police in Delhi arrested six women who honey-trapped a man to extort money, and there have been many instances where women used such tactics to make money and harass the man. But why don’t we discuss such cases and talk about harassment against a woman? Are we unthinkingly following the ideology that women are always the victims and men are always the culprits? Why do we shy away from the truth that women have also victimised men? Time has changed, and so should our laws.
While rejecting a plea seeking to quash a First Information Report (FIR) for the offence of rape, the parties pleaded that they had amicably resolved the issue and entered into a compromise. “In the present case, it appears that both sides have resorted to filing complaints of rape without having any sensitivity to the offence of rape,” Justice Prasad said, adding, “Allegations regarding offences such as one under Section 376 IPC (Punishment for Rape: Proposed Section 64 of The Bharatiya Nyaya Sanhita, 2023) cannot be made at the drop of a hat to settle personal scores.”
While noting that the FIR was lodged ‘out of anger’ as she and the petitioner had an altercation, the Delhi High Court quashed an FIR registered against the petitioner for the offence punishable under Section 376 IPC (Punishment for Rape: Proposed Section 64 of The Bharatiya Nyaya Sanhita, 2023) and all other proceedings arising from that place.
Recently, the Delhi High Court quashed an FIR under rape charges, observing that no useful purpose would be served in prosecuting the accused as the complainant had apprised the court that she had made false allegations and tendered an unconditional apology stating that it was a false charge.
There have been many instances where girlfriends have accused a man of rape by developing a sexual relationship with them on a false promise of marriage. However, the sexual act between the two was consensual. However, the Supreme Court clarified that a charge of rape is not applicable in every case where a man does not marry his girlfriend after making a promise. The Court stated that “It will not amount to an offence of rape if the promise to marry was not false when it was given but the man, for some real reasons, could not get married to his girlfriend in the future”.
Recent plea on criminalising marital rape.
The bench headed by Justice Rajiv Shakdher was hearing PILs that were filed by NGOs-RIT Foundation and All India Democratic Women’s Association seeking striking down of the exception granted to husbands under the Indian rape law. The affidavit filed in the case by the Union Govt. stated that marital rape could not be criminalised as it could become a phenomenon that may establish the institution of marriage and be an easy tool in the hands of wives for harassing husbands. Merely because Western countries have criminalised the act doesn’t impel India to criminalise it.
Why should marital rape not be criminalized?
Against the concept of conjugal rights: Do we have an exact definition of “marital rape”, or is it clear to us as to what would constitute marital non-rape? This needs to be conspicuously defined before criminalising the act. If a woman is bestowed with the power to decide whether the act was consensual or not, and if it was consensual, then wouldn’t it violate the conjugal rights of the husband? If the exception were to be dropped, wouldn’t it be a tool for harassing husbands? Will it not destabilise the institution of marriage?
Misuse of the law: This is the biggest reason why jurists and men’s rights activists have raised the alarm over the criminalization of marital rape. Some activists claim that approximately 85% of dowry cases turn out to be false and that such a catastrophic law will amount to legal terrorism. Deepika Narayan, who is a men’s rights activist, claimed that 111,549 cases were registered under 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) in 2020 and 5,520 cases were closed by the police, citing it as false. The cases were closed by the police as they were untrue, or there was a mistake of fact or law, a civil dispute, etc. About 14.4% of cases were closed by police for not finding merit in the case.
The data reflects that women are misusing the laws to further their ulterior motives. We cannot ignore the fact that the husbands’ innocent families are being tortured, and there have been instances where the husbands have even committed suicide after being accused in 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) cases. Hence, criminalising marital rape would open the doors to another law that disgruntled wives could use falsely.
We cannot deny the burden of proof that it is a hugely complex issue and will be the biggest hurdle for a husband to prove his innocence. Once marital rape is criminalized, the question will be, who will prove it? For example, if the provision is given the same effect as in dowry cases, then this will ruin the lives of the husband and his entire family. The burden of proof lies on the husband. Then how can he prove his innocence? As sexual intercourse is a private moment, no CCTV cameras can be installed to confirm whether the act is genuine or forceful. Practically saying the husband can’t prove it and he will be trapped even if he is innocent.
Gender neutrality: As we are all aware, rape laws are gender-biased, and there is no provision at all for men; hence criminalising marital rape would land a husband in a mess. Even the defence that a husband who has never been previously reported for any cases of violence or abuse will not turn into a rapist will help. As such, in the eyes of the law, even if the act is committed once or for the first time, it would be an offence.
Use the law to protect vulnerable women, but remember to protect the rights of innocent men. Our legal system needs a visible shake-up to demonstrate that men’s lives matter, and we do need specific laws to protect them. Apart from judicial awakening, we need mass awareness of the need to respect each other’s rights and the value of free consent.
The discussion on marital rape is gaining momentum across India; there is a need to build an equal world by pushing women up and not taking men down. We need a practical approach instead of unthinkingly following any ideology. Hence, criminalising marital rape would not be justified at all as there would only be convictions of men and very low acquittals.
[i] https://www.scconline.com/blog/post/2017/10/11/sexual-intercourse-wife-18-years-age-rape-sc-holds/
[ii] https://www.hindustantimes.com/india-news/shouldnt-blindly-follow-foreign-countries-on-marital-rape-centre-to-delhi-hc-101643455567504.html
[iii] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1
[iv] https://timesofindia.indiatimes.com/blogs/global-health-focus/how-laws-meant-to-protect-women-are-being-abused-daily-in-india/
[v] https://www.thehindu.com/news/national/delhi-high-court-expresses-worry-over-alarming-increase-of-false-rape-cases/article36042093.ece
[vi] https://www.livelaw.in/news-updates/false-rape-case-delhi-high-court-sections-376-ipc-out-of-anger-apology-quashed-fir-166958
[vii][vii] https://www.latestlaws.com/latest-news/high-court-quashes-fir-in-rape-case-after-woman-admits-to-making-false-allegations
[viii] https://www.hindustantimes.com/india-news/every-breach-of-promise-to-marry-doesn-t-mean-rapesc-101615138813123.html
[ix] https://www.ndtv.com/india-news/any-act-of-rape-punishable-but-marital-relationship-qualitatively-different-says-delhi-hc-2700127
[x] https://www.opindia.com/2022/01/marital-rape-debate-explained-arguments-for-and-against/
[xi] https://www.jusdicere.in/why-marital-rape-should-not-be-criminalised/
[xii] https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22
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