The issue of marital rape is the most debated issues in the recent past and the Hon’ble Delhi High Court have been hearing the final arguments in a batch of petitions filed before the court to declare exception 2 to section 375 as unconstitutional. In the previous article, it was discussed that the issue of marital rape should be scrutinized on the basis of fundamental rights of life, liberty, personhood, privacy, integrity and dignity of woman and was unconstitutional on various counts as it violated Article 14 and 21 of the Indian Constitution. However, the author tends to have a different version and show how Marital Rape is Constitutional.
REASONS WHY EXCEPTION 2 TO SECTION 375 SHOULD BE CONSTITUTIONAL
There are various arguments (mostly constitutional) as to why marital rape should be made an offence and that there is no intelligible differentia between the acts done in marital relationship and the acts done outside of marital relationship. However, criminalizing marital rape based on constitutional rights of women should be scrutinized on various other factors such as destabilization of marriage as an institution, misuse of rape law (if marital rape is brought within the ambit of rape), other remedies available with woman , not having strong safeguards against perjury, false accusations and wrongful incarceration and more importantly collection of evidence which is very difficult in such type of cases.
- THE OFFENCE OF MARITAL RAPE WOULD DESTABILIZE THE INSTITUTION OF MARRIAGE
Under Hindu Law, marriage is considered to be sacrosanct and the social construct of marriage is based on implied physical, emotional, and sexual companionship. In most societies, marriage is considered to be a permanent social relationship between two people that is based on mutual obligations, and that obligations include sexual obligations as well. The aim of marriage as an institution is procreation which can be achieved only when the spouses fulfill their sexual obligations towards each other. Moreover, under Hindu Law, marriage is not a contract and therefore there is no question of ‘Consent’ between either of the parties. The offense of rape comes into effect only when sexual intercourse is committed without the consent of the other party. And because the institution of marriage is sacrosanct and non-contractual, both the spouses are bound by their physical, emotional, and sexual obligations towards each other, and therefore, any act of sexual intercourse between them is for the purpose of procreation only and must not be construed to be anything more than what it actually is because then it tends to destabilize the institution of marriage and interestingly, in the institution of marriage, consent can never be defined when there is an implied consent and expectation of conjugal sexual relationship between both the spouses.
- LACK OF STRONG SAFEGUARDS AGAINST PERJURY AND FALSE ACCUSATIONS
One of the common arguments is that the other countries which had marital rape as an exception to the offence of rape have now criminalized marital rape and husbands can be punished if they commit sexual intercourse with their wives without their consent. It is indeed true that if other countries can criminalize marital rape as an offence so can we but it is equally important to understand that the other countries have strong safeguards against perjury, false accusations and wrongful incarceration. Undoubtedly, the judiciary has itself recognized gross misuse of dowry laws and false accusations being made against the husband and the in-laws but how many times have the wives who have made these allegations been punished? The answer is probably never. Therefore, in order to adopt the other country’s model of law, it is equally important to adopt the various safeguards which the other countries provide in cases of false accusations, perjury and wrongful incarceration so that a balance is created in favor of both the parties.
- GROSS MISUSE OF LAWS
The argument in favor of criminalizing marital rape is that just because a law is capable of being misused, it cannot be said that one must not have that law. However, over the years, the judiciary in various cases have recognized the misuse of dowry laws and false accusation being levelled against the husband and the in-laws by the disgruntled wives. In recent times, allegations of sexual abuse have made their way into FIRs in matrimonial disputes, in order to ensure arrest of the husband and his family. Complaints filed in such disputes these days are a hybrid mix of allegations of dowry and domestic violence against the entire family, unnatural sex cases against husband, rape cases against fathers-in-law and molestation cases against brothers-in-law without any specific mention of time, place and date of offence for the sole purpose of extorting money from the family of the husband.
Today, if marital rape is brought within the ambit of offence of rape and is made an offence, one line allegation of rape without any strict proof of evidence as to when the offence was committed and at what place can lead to incarceration of husband and entire family. In recent times the people have stooped to the lowest of lows in matrimonial disputes in India where the wives have used their children as a tool to harass their husband by making them file false POCSO cases. Therefore, it is important to note that without strict provisions of compensation against perjury, wrongful incarceration and false accusations the disgruntled wives are never going to stop misusing the laws which were enacted for their betterment and to protect their interest.
Without having strong safeguards against perjury and wrongful accusations being levelled against the husband and lack of provisions to compensate for the same would only lead to gross misuse of such laws without fear of being punished. It is seen that in number of cases it is established that the accusations levelled against the husband and the in-laws is false but in how many cases are the wives punished for perjury and for levelling such allegations for monetary benefits? There are probably no instances where the wives are held for perjury and wrongful incarceration and where the husband is compensated for the same.
- AVAILABILITY OF OTHER REMEDIES
One of the most important points of consideration is that there are other remedies available with woman such as 498A and also the woman can file for divorce on the grounds of cruelty. Therefore, a woman is not forced to live with a person who sexually assaults her being her husband. The availability of other remedies allows the wife to file for divorce on the ground of cruelty and also the availability of remedy under section 498A of the Indian Penal Code also serves the purpose. Moreover, exception based on marital status cannot be called unconstitutional and also the test of consent for sexual activity between a married couple is very difficult to implement.
- THERE WOULD BE AN INHERENT DIFFICULTY IN COLLECTING EVIDENCE FOR MARITAL RAPE
It is necessary to have concrete evidence for establishing the commission of an offence of marital rape by husband. However, it is very difficult to collect evidence in such cases as sexual conjugal relation between the spouses take place between the four corners and one-line allegation of rape being committed by husband cannot be taken at a face value in cases specially where the allegations of rape are being made after 4 to 5 or even 12 years of marriage. There is a high tendency that the offence of sexual assault by husband or rape by father-in-law or brother-in-law finds its place in most of the FIRs in the recent times without any specific mention of time and date of occurrence of offence and the place where the offence was committed. Sexual Conjugal Relationship between the spouses takes place behind the closed doors and in such cases, it would be wrong to take into consideration the one-line allegation of rape against the husband and especially where there is a reasonable expectation of sexual relation between the spouses. In order to take the statements of wives at their face value and believing the same to be true would put the alleged accused husband in a very disadvantageous position.
CONCLUSION
It is indeed true that the offence of rape is a very heinous offence. However, the status accorded to marital rape on a different footing is based on an intelligible differentia based on various factors as are dealt with above. There is a qualitative difference in distinguishing between a marital relationship and a normal relationship in India, as the partner has expectations to have a normal sexual relationship with the other partner. It is necessary to understand that removing exception 2 to section 375 IPC would lead to destabilize the institution of marriage and would become a tool in the hand of the wives for grossly misusing the same to settle personal scores against their husbands and in-laws. Moreover, the wives are not forced to live with husband who sexually assaults her and can file a case of divorce on the ground of cruelty by husband. Also, to follow the model of law settled in other countries, it is equally important to balance the interest of both the parties by making laws against perjury and false accusations and not put husband in a disadvantageous position.
AUTHOR: HITESH P VACHHANI
DISCLAIMER
The above article is for educational purpose only. It is a result of the author’s own intellect and ideas and proper references and citations have been mentioned in the artilce for deeper understanding of the issue discussed above. The matter embodied has been properly referenced and acknowledged to avoid any kind of copyright issues.
JURISTIC LEGAL 