The Indian law does not define ‘marital rape’ though the Black’s Law Dictionary defines it as “a husband’s sexual intercourse with his wife by force or without her consent”. The Kerala High Court in its recent judgment while granting divorce on the ground of martial rape has noted that it is one of the worst kinds of mental and physical cruelty against women. This judgment is reminiscent of the progressive ideology of physical body anatomy, which is one of the essentials of our right to life, despite, having been, recognized by the judiciary as a gruesome act. The penal law on marital rape in India is unchanged since long, providing immunity to husband from the offence of rape if the victim is his wife. Resultantly, any sexual assault, which might be a rape in any other case, will not be so by the reason of victim being the lawfully wedded wife of the accused.
The marital immunity in rape has its origin in English law. Earlier marriage or family matters were out of the preview of law and governed by the religious and cultural values. However, now to promote the idea of equality and dignity to some extent family integrity has been relaxed and law intrudes in cases of violation or disrespect of fundamental norms within the family. However, unfortunately the judiciary and legislatures have failed to devise norms or rules to prevent marital rape being patently criminal. The reason for non-criminalization lies in our deeply embedded principle in our criminal justice system combined with the procedural law vis-a-vis the patriarchal setup of our society.
Our criminal justice system is an adversarial system, which works on the golden thread of presumption of innocence, which simply means that a person is innocent until proven guilty, beyond reasonable doubt. The term “beyond reasonable doubt” simply means that wherein two interpretations of evidences are reasonably possible the one, which supports the innocence of the plaintiff, will prevail. The evidence law in India is also in line with the view and makes all the burden to rest upon the aggrieved/prosecution to prove beyond reasonable doubt that the said accused committed the alleged offence. The rationale behind this principle is that all the functionaries that are involved in the criminal justice system ranging from police to the prosecution to the prison authorities are the instrumentalities of the state and hence it is important that a very high burden of proof be required to protect the rights of accused.
However, the above-mentioned procedural requirement is not similar in the offences of rape. Rape under IPC has primarily two essentials, sexual intercourse and the same without the consent of the victim. In rape cases, once sexual intercourse proved between the victim and accused and victim alleges that it was without her consent. Then court will presume in favour of the victim and burden of proof will be on accused to prove that he is not the guilty of the offence.
Even if we arguably assume that Indian law criminalize the martial rape, the above said provision regarding evidence will still be inadequate in establishing marital rape. The above mentioned evidentiary requirement for rape works on the hypothesis that sexual intercourse between the accused and the victim is not a usual incident , and when the fact of sexual intercourse is proved and the same is coupled with the allegation of the victim she has been sexually assaulted a rebuttable presumption is raised in favor of the victim. However, it will not be practical in cases of marital rape for the simple reason that sexual intercourse between a husband and wife is a general course of nature. This is evident by multiple factors, the primary one being marriage as a concept is a union for procreation of legal offspring which inherently mean that sexual intercourse is usual in case of marriage.
Further, the Hon’ble Delhi High Court in one of the cases noted that not admitting the martial partner to sexual intercourse is a cruelty and a ground for divorce. Henceforth, we can safely conclude that sexual intercourse between partners of a marriage is an ordinary course of nature, and therefore, the above presumption loses its ground and its significance. This leads us to the ground zero wherein a wife needs to prove beyond reasonable doubt that the sexual assault by the husband on a particular event was forceful. This may create a nightmare for the prosecution to prove that if not for the evidence of the victim it is almost impossible to produce independent evidences, direct and circumstantial, to establish the case beyond reasonable doubt. It is illusionary to assume on the part of prosecution to point out that the alleged sexual intercourse between married couples was against the consent of the wife and which was willful. Even in the best-case scenario, if somehow one is able to point the same out proving it beyond reasonable doubt is too farfetched.
Now assume the different case scenario, wherein exemption of burden of proof marital rape is available under the laws. Initially this may seem to solve the problem to prove the case beyond reasonable doubt. However, at the end this it will not be a sustainable solution. Since sexual intercourse is normal incident between a married couple and by enabling this exemption there will be possibility of misuse of this powers in the hands of wives. In this context, the increasing incidences of misuse of the Domestic violence Act 2005 is relevant. The similar situation may arise in case of criminalization of marital rape.
Another important factor, which materially affects successful execution of any law, is the demographic aspect of the state. There has been very low reporting of rapes in general marital rapes wherein the accused is the husband of the victim is a different ball game altogether, that too in the situation wherein we are taking the best-case scenario that the same will not fetch any backlash from the conservative majority.
A very common argument supporting the penalization and opposing the above view is the fact that in the changing society live in relation is very common, however the exemption of burden of proof on evidence is available in case of it, and therefore, the same be allowed in marriage also. The above said analogy falls short on the fundamental reason behind marriage and live in relation. Marriage as has been widely accepted from ancient to modern times is a union with exclusion of others for legalization of offspring for continuation of humankind. Whereas, living in relation is nothing more than two people living together without any rituals. However, long cohabitation can lead to presumption of marriage or some limited rights relating to maintenance but these considerations are too short to equate live in relation with marriage.
Considering the above viewpoints, it is to conclude that to penalize marital rape many procedural hurdles need attention. Further taking into account the societal culture of India a penal provision for marital rape is doubtful to be effective and social change stemming from the roots is the correct way forward. A beginning in this way forward could be educating Youngers and adults about the importance of mutual consent for consummation of marriage. In order to inculcate this mature understanding in the adults, nurturing of values from the childhood is required. The best possible way of nurturing these values is to be the role model of the child. Academic institutions may also play an active role in advancing these values by imparting value based learning. In India, societal and family pressure for marriage is also playing a negative role and leading forceful marriage with negative consequences. Therefore, structural changes in societal and cultural norms in relation to marriage is need of the hour.