Without legislative will, it is impossible to fulfill India’s international legal obligations to guarantee protection for its children or provide its women the safety they are entitled to, both, inside and outside their homes.
The Ministry of Women and Child Development (WCD) was recently in the news for its statements on marital rape after the matter was raised in the Upper House. The Government’s stand on the issue remained unchanged when the Minister for WCD, Mrs Maneka Gandhi, communicated that the recognition of the offence of marital rape would put the “entire family system… ..under great stress.”
In its first statement thereafter, the Minister acknowledged the occurrence of incidences of marital rape in India but stated that the Government requires data to analyze whether the criminalization of marital rape is required.
The offence of marital rape has been debated often enough, in India. The case of Nipun Saxena & Anr. V. Union of India &Ors., currently pending before the Supreme Court of India, challenges the constitutional validity of the infamous twofinger test. In the course of this matter, the former Additional Solicitor General of India, Indira Jaising, submitted a report on the matter of marital rape, after being appointed as amicus curiae. This report as well strongly recommends legal recognition for the offence of marital rape in India.
Marital rape consists of unwanted sexual acts committed by one spouse on another. The only difference between the offence of rape and marital rape is the relationship that exists between the perpetrator and the victim. Given the proximity of the actors in such a relationship, marital rape is arguably more heinous in nature as the perpetrator would probably exercise considerable emotional and physical control over the victim on a daily basis. Additionally, according to Gender Equality and Women’s Empowerment in India, National Family Health Survey (NFHS-3), Ministry of Health and Family Welfare, in India, spouses co-habit and live in close proximity of extended families, often subjected to other forms of domestic violence. Marital rape is a regular occurrence in a disturbingly large number of marriages in India. One incidence of sexual violence is reprehensible, but to live in a relationship where sexual violence is a daily feature is a recurrent violation of the fundamental right to life itself.
Section 375 of the Indian Penal Code, 1860 outlines the offence of rape with the exception of sexual intercourse of a man with his wife. Effectively, if a woman is over fifteen years of age, her husband cannot be found guilty of raping her. Taking into consideration the outdated concept of ownership of women in marriages, the Justice Verma Committee (“the Committee”) strongly recommended legal recognition of marital rape.
In India, where marriages continue to be governed by personal law, the age of informed consent varies significantly from person to person. This itself could be considered as bad in law since it seeks to make an arbitrary distinction between two people of the same category – that is, young people married before attaining adulthood. Superimposed upon this state of muddled affairs is the legal recognition accorded to child marriages. Section 3, the Prohibition of Child Marriage Act, 2006, makes a child marriage voidable at the option of the contracting parties but unless such a marriage is voided, it is legally valid and binding upon the contracting parties. This Act prohibits the contracting of such marriages by adults for children and makes such contracting of marriages by adults a punishable offence Thus, India is ranked thirteenth (13th) globally as a child marriage hotspot, with approximately forty-seven per cent (47%) of its girls married before the age of eighteen years, as per the data revealed by International Centre for Research on Women.
Let this be juxtaposed with the criminalization of marital rape. By varying the age of consent significantly in the same country, the State fails to recognize the fundamental fact that girls below the age of eighteen years are essentially children. Children who are not permitted to buy alcohol or vote or enter into a contract, but children who have somehow consented to sexual intercourse. Apart from the legal implications of such anomalies, on the face of it, such a situation is farcical.
Arguably, in India, there is a dearth of research into the ability of juvenile girls to give informed consent to sexual activity. But it is globally accepted that children have the right to privacy, the right to be protected from sexual abuse, and the right to protection against exploitation (United Nations Convention on the Rights of the Child, Articles 16, 34 and 36). Therefore, it is ironic that India being a ratifying member of an internationally recognized document that accords these protection to children, fails to criminalize marital rape, especially in the context of a high prevalence of child marriages
Perhaps the institution of marriage does not lend itself to objective scrutiny, as may be argued by the Minister, in light of India’s social, economic and cultural fabric. It is submitted that this mirage is just that – a façade of convenience. Women are no longer treated as chattel in marriages, nor do their husbands own them. Recognizing that the institution of marriage has evolved into a relationship between equals, the Committee emphasized the fact that the relationship between the perpetrator and the victim cannot be a factor that affects the inquiry into an offence committed by one partner on another. See the Report of the Committee on Amendments to Criminal Law, at para 76, R. v. J.A., [2011] 2 SCR 40, para 64.
It seems, however, that the State requires data to legislate such an offence into its statute books. This data, it appears, does not exist and the reason for its conspicuous absence does not lie in its non occurrence. Here, it is pertinent to recall the country’s criminal justice system is, more often than not, triggered by the reporting of an offence. Such a report can only be generated of an action (or omission, as the case may be) that is recognized by the statue books as an offence. In other words, a complaint against theft can only be made when the State recognizes the offence of theft and has clearly defined parameters of the actions and omissions that constitute the offence of theft. In the absence of such recognition of the offence, a person would be constrained to merely voice his or her lament about the loss of certain objects, which the State’s machinery may or may not record. Since such loss is not recognized by the State as the offence of theft, a person will not be able to report theft – a classic case of circular logic, if ever there was one.
India finds itself in a similar bind. Without legislative will, it is impossible to fulfil India’s international legal obligations to guarantee protection for its children or provide its women the safety they are entitled to, both, inside and outside their homes
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