By guest contributor Yamika Khanna*

The Madras High Court in a remarkable judgment (case name was redacted due to the sensitive nature) upheld that marital rape, although not penalized under the Indian Penal Code, is a valid ground to claim divorce. The judgment is a light at the end of a very dark tunnel in recognizing the heinous nature of marital rape as a gross violation of bodily autonomy, privacy, and dignity of a married woman, especially under a legal regime that considers non-consensual sexual intercourse with the “wife” by the “husband” as an exception to the crime of rape.

An appeal was filed before the Hon’ble Court against the judgment of the Family Court. The Family Court vide its judgment allowed the petition for divorce sought by the wife on the ground of cruelty. The gravest contention of the wife with reference to cruelty against her pertained to the worst forms of sexual perversion including unnatural intercourse against the wife’s will.

In light of such serious concerns, the Hon’ble High Court, despite the existence of an archaic yet valid law not criminalizing marital rape under Exception 2 of Section 375 of the Indian Penal Code held that “a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape” and thus, the mere reason that this act is not recognized under penal law, does not inhibit the Court from recognizing it as a form of cruelty to grant a divorce.

While the Courts have at large recognised marital rape as a facet of cruelty as a ground for divorce. The Madras High Court while recognising the grave nature of the act, upheld “Marital Rape” to be a distinctive and good ground to claim divorce. Thereby, in its ruling, the Madras High Court has further advised the government to take note of the lacuna and outdated nature of divorce laws to codify the heinous act of marital rape as a ground for divorce in itself and not merely a component of cruelty which is duly recognised as a ground for divorce.

The Court asserted that the non-criminalization of marital rape is in accordance with the patriarchal notion of considering a woman subordinate to the male through the legal status of marriage and suspension of individual existence under marital unity. But in modern social jurisprudence, spouses in marriages are equal partners and thus, a husband cannot claim any superior right over his wife with respect to her body. It was further noted that consideration of a wife’s body as something that the husband has absolute sexual control over against the will of the wife is rape.

Man holding up a sign in protest of a brutal gang rape of a local woman

The rationale of the Court was primarily based upon the constitutional Right to Bodily Integrity and Individual Autonomy of a woman and the fact that women do not lose these basic fundamental rights by entering into a marital union. The Right to Bodily Integrity and Individual Autonomy was elaborated on by the Supreme Court of India in Joseph Shine vs. Union of India, where the Court reiterated that misogynistic notions of sexual control of a woman finds no place in the constitutional order of India that recognizes dignity and autonomy as intrinsic to every person (Article 21, Constitution of India). Furthermore, the Court in Navtej Singh Johar vs. Union of India, affirmed sexual autonomy as being a part and parcel of individual liberty under Article 21and emphasized that the right to sexual privacy is a natural right, fundamental to liberty and dignity.

The Madras High Court further held that even in matrimony, every individual possesses the Right to Privacy and therefore, marital privacy is intrinsically connected to individual autonomy and any intrusion, physical or otherwise would result in a violation of one’s right to privacy. The Supreme Court of India in K.S. Puttaswamy vs. Union of India emphasized that law must reflect the status of women as equals in a marriage, entitled to constitutional guarantees of privacy and dignity, and further “dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty under Article 21”.

Furthermore, the non-criminalization of marital rape by the Indian state is in violation of several international obligations. India, being a state party to and having ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), has an obligation towards protecting the rights and bodily autonomy of women. Article 1 of CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status”. Thereby, Exception 2 of Section 375 of the IPC, pertaining to non-criminalization of marital rape, exempts sexual violence against women on the basis of their marital status and is, therefore, in violation of Article 1 of CEDAW. The non-criminalization of marital rape further violates Article 2 of CEDAW that imposes an obligation upon states to eliminate all forms of discrimination against women.

State parties to CEDAW under the general recommendation (GR) 19  are obligated to exercise due diligence to combat violence against women. Further, Paragraph 33 of GR 35explicitly mandates states to criminalize marital rape by asserting that states must “ensure that the definition of sexual crimes, including marital and acquaintance/date rape is based on lack of freely given consent, and takes account of coercive circumstances”. The failure of the Indian state to criminalize marital rape is a violation of its international obligations.

Women in India hold up a flag that reads “united to end violence against women,” a campaign launched by UN Women in 2019

Additionally, the right to equality in the family is guaranteed by GR-19 of CEDAW, thereby, requiring the states to change social and cultural patterns in order to eliminate prejudices that perpetuate stereotypes between men and women. Therefore, an exception for marital rape under the Indian Penal Code perpetuates the patriarchal stereotype of a woman being the sexual property of her husband, negates equality within the family. Hence, the criminalization of marital rape is essential to uphold India’s obligation to promote equality within the family.

Marital rape is in violation of the principle of right to life which is recognized as an essential right guaranteed under customary international law and human rights treaties especially under the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). Violence against women on account of sexual abuse by intimate partners has been recognised as  a leading cause of death around the globe. Therefore, marital rape, being a grave form of sexual violence, infringes upon the right to life on account of having fatal consequences including increases in miscarriages, complications during pregnancies, unsafe abortion practices, and the higher likelihood of contracting sexually transmitted diseases. Hence, criminalization of marital rape is a fundamental obligation of states in accordance with the guaranteed rights of women under international law.

UN Women launched a campaign to address violence against women in India in 2019

Marital rape is a further, infringement of the right to liberty and security of a person guaranteed by the ICCPR and UDHR. Additionally, the exception of marital rape in the Indian Penal Code, discriminates against married women, and thus lies in violation of Article 26 of the ICCPR.  Therefore, on account of India being a party to the Covenant, according to its Article 5, it must not derogate from any fundamental right recognized in the Covenant. Furthermore, the right to health and wellbeing is guaranteed by the UDHR and International Covenant on Economic, Social and Cultural Rights (ICESCR). Under Article 12 of ICESCR, States are required to diminish women’s health risks by protecting them from domestic violence. Thereby, the exception to marital rape infringes on a state’s obligation to protect the health and well-being of women.

Furthermore, the non-criminalization of marital rape in India not only goes against international human rights instruments but also against the principles recognized in the Fourth World Conference on Women held in Beijing wherein, a resolution was adopted to promulgate principles for the attainment of gender equality. The Beijing Declaration 1995, urged countries to remove discriminatory legislative provisions including, inter alia, penal codes, as an urgent priority. India, therefore, in accordance with its obligations under the Declaration it is yet to take concrete measures to criminalize marital rape.

Therefore, amidst, the disinclination of the government towards criminalization of marital rape in order to preserve the sanctity of the institution of marriage, the judgment in this case in recognizing “marital rape” as a good reason for divorce not only disregards the arguments advanced by the government but also, advises the government to recognize the rights of women to bodily autonomy, which is fundamental to the rights guaranteed by the Constitution of India as well as International Laws. This progressive judgment can surely be regarded as winning a battle that is part of the long and exhausting war for the criminalization of marital rape in India.

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* Yamika Khanna is a third year student, pursuing B.B.A LL.B(Hons.) from Symbiosis Law School, Pune. Her research interests include in human rights discourse, and constitutional law.

 

Photos

“Protests at Safdarjung Hospital and India Gate-002” by ramesh_lalwani is licensed under CC BY-SA 2.0

“Orange the World 2019 – India” by UN Women Gallery is licensed under CC BY-NC-ND 2.0

“Orange the World 2018 – India” by UN Women Gallery is licensed under CC BY-NC-ND 2.0

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