Criminalising Spousal Rape in India - For Better or For Worse?

The fight to hold husbands criminally culpable for non-consensual sexual intercourse with their wives has been a long and challenging one across the globe. India remains among the few countries which has retained within its legal framework the concept of a ‘Marital Rape Exception’ (MRE) which provides criminal immunity to a husband for the offence of rape, if committed on his legally wedded wife.[1] While rape is defined as a criminal offence under the Indian Penal Code, the provision also provides for an exception, wherein any sexual act by a man with his wife above the age of 15, would not be considered rape.[2] This provision of law has been at the centre of several contentious legal debates, and has ultimately, now resulted in a case before the Supreme Court of India, asking to determine the Constitutionality and legal validity of such an exception.[3] While India stands at the legal precipice of removing the MRE and possibly opening up new litigation avenues for wives in India, it is important to consider the past strategies that have been employed to bring about accountability for husbands for sexual violence against their wives in order to understand the actual impact such a verdict could have. The MRE did not sustain itself into the modern day and age in a vacuum, and there exist several social factors which have contributed to the survival of this exception.

This discussion dissects the existing criminal law provision which has been employed to prosecute husbands for raping their wives and the challenges which have risen from the same. In doing so, it examines the prevailing social norms which have formed hurdles for married women to litigate against their husbands and the issues faced in framing spousal rape under existing criminal law provisions. Finally, we integrate these elements and analyse the legal and social attitude that has formed against married women choosing to litigate against their husbands, in order to better understand the real potential of a verdict which removes the MRE in India.

I.  Conceptualising Spousal Rape

It is well known that marriage as an institution is regarded with reverence by members of society in India. The scope of marriage is not perceived to end within the domain of two private individuals, but rather considered to permeate into larger society as well. Therefore, there exists a strong correlation between marriage and the social approval of the union of the partners in that marriage. Marriage, therefore is not a private affair between two individuals, but perceived as a union which is a social necessity and to an extent as an obligation towards one’s community which lies at the core of culture and tradition.[4] The effect that such an environment has in moulding the perception of married women is of significance when discussing spousal rape in India. It needs to be considered at this juncture, that the entrenched patriarchy that is part of Indian society also permeates itself into the domain of marriage, and creates hierarchies within a marriage subjugating the wife. The result has been that married women often fail to conceptualise that an act, in this case non-consensual sexual intercourse, is unjustified in the first place. Surveyed data indicates that 18 percent of Indian women feel they cannot say no to their husbands if they do not want to engage in sexual intercourse.[5] This number shoots up to 36 percent when looking at State-wise figures.[6] It is evident therefore, that although not an overwhelming majority, a considerable portion of the Indian population seeks to justify non-consensual sexual acts committed by a husband on his wife. This manner of rationalisation can be traced back to a flawed notion of ‘perpetual consent’ which prevails in Indian society in with regard to marriage. In essence, following marriage, the man gets a stamp of approval to have sex with his wife whenever he wants, irrespective of the wife’s wish.[7] Even for those women who manage to perceive spousal rape as a violation of their bodily autonomy, there exist further hurdles when it comes to the redressal of the same. To begin with, entrenched patriarchal norms coupled with the sacramental perception of marriage has resulted in an environment where State interference within the domain of marriage is largely discouraged and often met with backlash. On the ground level, these translate into hurdles for married women from the stage of reporting an offence. This can be evidenced by the fact that less than 1 percent of cases of sexual violence by the husband are reported to the police.[8] Women who report offences against their husbands are perceived to violate the sacramental nature of marriage and are often subjected to ostracization from the community.[9] Notions of ‘family honour’ and ‘traditional values’ are predominant factors within a family[10], which, when coupled with the entrenched patriarchy in Indian society[11], result in cultural notions which deprive women of their autonomy. The majority of Hindu men believe that the ideal wife is one who obeys her husband,[12] a sentiment which is echoed among non-Hindu Indians as well.[13] This overall culture which subordinates women before men in India has led to the husband exercising rights over the autonomy of the wife within a marriage, which has in turn, coupled with lack of education and awareness, has driven many women to accept forced sexual intercourse by their husband.[14] The cultural aspect supporting the impunity of men is only bolstered by the fact that Colonial-era legislation viewing women as chattel also provides for criminal impunity for rape within a marriage. Inequalities in employment opportunities for married women result in them often being economically dependent on their husbands, which further discourages criminal prosecution.[15]  These factors, amongst others, contribute to the hesitation that married women feel in prosecuting their husbands in the first place. Even for those who decide to prosecute, the only tool available to them is that of the criminal provision of cruelty towards the wife under Section 498A of the Indian Penal Code, which presents its own challenges.

II. Section 498A

Given the sacramental manner in which marriage is viewed in India, there exists a general tendency of the State to avoid interference into matters which are considered to be ‘private’ within a marriage. This has resulted in a void in the Indian criminal framework insofar as offences against married women are concerned. Under criminal law, there exists one sole provision which relates to the protection of married women, which is the offence of ‘cruelty’. Since there exist no other criminal law provisions, and married men cannot be prosecuted for rape, the only possible avenue left for married women to prosecute their husbands for sexual violence, is and has been, through prosecution under Section 498A of the Indian Penal Code, which holds culpable the husband or relative of the husband of a woman for subjecting her to cruelty.[16] At the outset, there arises a challenge in prosecuting spousal rape under the banner of ‘cruelty’. The legal threshold for ‘cruelty’ under the provision is set extremely high and connected to a certain extent to dowry payments at the time of marriage. For offences without an element of dowry payments, Section 498A defines cruelty as wilful conduct which is likely to drive a woman to suicide, or causes grave danger or injury to life, limb and physical or mental health. This already strictly worded provision has been further judicially interpreted and perceived by the general public to only apply to cases of extreme brutality and the most heinous instances of cruelty towards a married woman. Interestingly, the feminist anti-violence advocacy at the time the provision was introduced has been considered to have played a role in this. Ever since the provision was introduced in 1983, the mass organisation of public protests around high profile cases reflecting the most extreme manifestations of violence, usually with an element of dowry attached, created a shift of focus towards only such cases and to cases of dowry related violence,[17] thereby delegitimising the more subtle and day to day instances of abuse.[18] Considering this high standard of severity required to trigger criminal liability, it would be considerably difficult for a married woman to narrate an incident of sexual intercourse by a spouse as non-consensual, and then for to qualify such an incident as a ‘grave injury’ or a ‘danger to life, limb and health’. As a result, most cases of spousal rape fail to fall within the definition of ‘cruelty’ under Section 498A. There have been problems in qualifying incidents of domestic abuse against a woman in under cruelty as well. In addition to the high threshold of ‘cruelty’, there prevails a misconception among law enforcement authorities in India that Section 498A is a provision solely related to dowry[19]. While an allegation of dowry demands is optional,  the law is erroneously perceived and interpreted for it to be a requirement, which has a direct impact on the types of violence that are recognized under Indian law.[20] While dowry is a factor in the violence that married women experience, there remain other causal factors for the same.[21] The result is that often when required to record a complaint, police officers insist that the woman include an allegation of dowry demands to her case, even if it is absent in reality.[22] Such problems which arise with the framing of domestic abuse under ‘cruelty’ also extend to the offence of spousal rape, as the woman, in addition to qualifying rape as a ‘grave injury’ or a ‘danger to life, limb and health’, is also insisted upon by the police to include an element of dowry demand.  This fabrication of dowry demands, coupled with the high evidentiary requirements of ‘cruelty’, eventually leads to cases failing in the prosecutorial stage. The combination of all of the above discussed factors has therefore resulted in the development of a perception that Section 498A is a provision dealing solely with the most extreme and heinous acts of cruelty, or dowry related harassment; which, when coupled with the low rate of convictions[23], has additionally germinated a backlash movement which claims that the provision is misused by women to falsely implicate their husbands. This backlash has severely impacted the debate the rights of married women in India and has also permeated into the legal debate on the MRE.[24] The manner in which cases under Section 498A have been interpreted by Courts has contributed significantly to this misperception of misuse.

III. Judicial Backlash against Section 498A and the Myth of Misuse

The Indian judiciary has been engaged in the interpretation of Section 498A since the early years of its introduction. As discussed previously, challenges in framing, a misconceived insistence on dowry allegations, and  along with practical elements lead to the failure of cases in trial even in genuine cases of abuse. Only those claims which involve murder or extreme physical abuse seem to be able to withstand judicial scrutiny.[25] What can be observed right from the initial verdicts of such cases is a tendency of the Judiciary to pass a moral judgement on the potential for misuse of the provision of law. In a case merely 3 years after the provision of law was introduced, a High Court verdict compared Section 498A to ‘Frankenstein’, which “if not chained and immobilized soon enough, would imperil the very  social system, causing in its wake, misery and torture to innumerable lives.”[26]  This (rather inaccurate) comparison of the anti-cruelty provision to an outright monster is only one of the first instances of hostility expressed by the Indian judiciary against married women choosing to criminally prosecute their husbands. Over the years, a number of judgements have included similar observations pertaining to the great potential evil of misuse, with verdicts terming women choosing to litigate as ‘querulant’ ‘quarrelsome’[27] and ‘impulsive’[28].  Even when the Supreme Court of India declined to hold the provision unconstitutional, it nevertheless passed comment that by the misuse of the provision, a form of ‘legal terrorism’ can be unleashed.[29] These judicial narratives have contributed to the perception of an anti-cruelty statute as a tool for the destruction of the family. The approach of the Indian judiciary to such cases has also carried with it an element of sermonizing in regard to the alleged damage a woman brings upon the family when she refuses to compromise and chooses to litigate.[30] This judicial narrative has acted as fodder for the backlash of men’s rights advocacy groups in India which have called for the repeal of Section 498A and have now linked the same flawed argument of misuse to challenge the decriminalization of the MRE.[31]

IV. Conclusion: The Removal of the MRE

What emerges from the above discussion is a particular character of a married woman that seems to be a desirable legal subject by both Indian society and the Court. It seems that married women are preferred to only approach Courts for criminal prosecution in cases of extreme, heinous violence and cruelty, or dowry related cruelty, and should prioritise the preservation of the sanctity of marriage and family by refraining from criminal prosecution for less serious cases of abuse. It is in this environment, and backdrop of criminal litigation against husbands by their wives that we must hypothesise the potential of a verdict which removes the MRE. At the outset, social factors such as lack of education, financial dependency and cultural norms would prevent women from reporting cases to the police even if the MRE is removed in law. The underlying hesitation of police authorities to ‘encroach’ into the family would remain unchanged in such cases as in cases of cruelty. Once again, this could result in only the most serious of cases reaching the Court for deliberation, subsequently forming another narrow judicial interpretation of rape when committed by the husband, as has been the case with ‘cruelty’ under Section 498A. Other jurisdictions which have abolished the MRE have faced challenges where despite the removal of the exception, convictions of spousal rape have watered down sentencing.[32] A similar phenomenon could be predicted in India. Backlash against the very notion of removing the MRE has already burst out in India[33], one such peculiar manifestation of such being a ‘marriage strike’ being called by Indian men threatening to boycott marriage should the MRE be removed.[34]

What is evident, is that if the MRE is to be removed from Indian law, lessons must be learnt from the jurisprudence of Section 498A. Removing the provision in law needs to be coupled with Courts adopting a more positive attitude towards married women choosing to criminally prosecute their husbands. Sensitising judges to the contextual factors of marriage in cases of spousal rape could prove beneficial in this regard. In a nutshell, it may be said that removing the MRE would only truly protect the rights of women when combined with widespread education and awareness, both for judges and the general population, adequate and necessary support during investigation and trial, and most importantly, teaching men that no means no, even in marriage.

[1] Mandal, S. (2014). The Impossibility of Marital Rape: Contestations Around Marriage, Sex, Violence and the Law in Contemporary India. Australian Feminist Studies, 29(81), 255–272. https://doi.org/10.1080/08164649.2014.958124

[2] Section 375, Indian Penal Code, 1860

[3] Hrishikesh Sahoo v. State of Karnataka, (SLP(Cr.) 4063-4064 of 2022)

[4] Sneha Kadyan & N. Prabha Unnithan (07 Jul 2023): The Continuing Non- Criminalization of Marital Rape in India: A Critical Analysis, Women & Criminal Justice, DOI: 10.1080/08974454.2023.2228790

[5]India Today. (2022, May 12). Marital rape debate: Government’s family health survey spotlights consent issue. https:// www.indiatoday.in/india/story/marital-rape-debate-government-family-health-survey-consent-issue-1948258- 2022-05-11. 

[6] Krishnan S. Gender, caste, and economic inequalities and marital violence in rural South India. Health Care Women Int. 2005;26(1):87–99.

[7] Sneha Kadyan & N. Prabha Unnithan (07 Jul 2023): The Continuing Non- Criminalization of Marital Rape in India: A Critical Analysis, Women & Criminal Justice, DOI: 10.1080/08974454.2023.2228790; Saksena, S. (2014, May 25). Married to rape? The Daily Pioneer. http://Mail.Dailypioneer.Com/sunday-edition/sun day-pioneer/investigation/married-to-rape.Htm.

[8] Gupta A. Reporting and incidence of violence against women in India. Res Inst Compassionate Econ. 2014;30. https://riceinstitute.org/research/reporting-and- incidence-of-violence-against-women-in-india/. 

[9] Supra n.4

[10] Derné, S. (1994). Hindu Men Talk about Controlling Women: Cultural Ideas as a Tool of the Powerful. Sociological Perspectives, 37(2), 203–227. https://doi.org/10.2307/1389320

[11] Ibid

[12] Ibid, p.217

[13] Pew Research Center, March 2, 2022, “How Indians View Gender Roles in Families and Society”, available at: https://www.pewresearch.org/religion/2022/03/02/how-indians-view-gender-roles-in-families-and-society/

[14] Krishnan S. Gender, caste, and economic inequalities and marital violence in rural South India. Health Care Women Int. 2005;26(1):87–99; Padma-Bhate Deosthali, Sangeeta Rege & Sanjida Arora (2022) Women’s experiences of marital rape and sexual violence within marriage in India: evidence from service records, Sexual and Reproductive Health Matters, 29:2, 2048455, DOI: 10.1080/26410397.2022.2048455

[15] Sneha Kadyan & N. Prabha Unnithan (07 Jul 2023): The Continuing Non- Criminalization of Marital Rape in India: A Critical Analysis, Women & Criminal Justice, DOI: 10.1080/08974454.2023.2228790

[16] Section 498A, Indian Penal Code, 1860

[17] Agnes, F. (2015). Section 498A, Marital Rape and Adverse Propaganda. Economic and Political Weekly, 50(23), 12–15. http://www.jstor.org/stable/24482280 

[18] Lodhia, S. (2009). Legal Frankensteins and Monstrous Women: Judicial Narratives of the “Family in Crisis.” Meridians, 9(2), 102–129. http://www.jstor.org/stable/40338788

[19] Define Dowry

[20]Ibid, Nancy, A. F. (2005/05//). Dowry murder: The imperial origins of a cultural crime. The Journal of Asian Studies, 64(2), 500-502. Retrieved from https://login.ezproxy.leidenuniv.nl/login??url=https://www.proquest.com/scholarly-journals/dowry-murder-imperial-origins-cultural-crime/docview/230389591/se-2

[21] Supra n.18

[22] Ibid ; Section 498A, Agnes, F. (2015). Section 498A, Marital Rape and Adverse Propaganda. Economic and Political Weekly, 50(23), 12–15. http://www.jstor.org/stable/24482280

[23] Government of India, Law Commission of India, 243rd Report on Section 498A, available at (https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081023.pdf)

[24] Bhalla, N., Men Will Suffer If Marital Rape Is Outlawed, India Government Argues,  Reuters, 31.08.2017, accessed on 27.05.2024, available at (https://www.reuters.com/article/idUSKCN1BB1UG/)

[25] Supra n.18

[26] Harjeet Singh Ahluwalia v. State of Punjab, 1986 (92) CRLJ 2070

[27] Rajeev Verma v. State of Uttar Pradesh, 2004 (110) CRLJ 2956

[28] Report of the Committee on Reforms of Criminal Justice System (2003), Government of India, Ministry of Home Affairs, available at (https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf)

[29] Sushil Kumar Sharma v. Union of India, 2005 (6) SCC 281

[30] Supra n.18

[31] Supra n.23; RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404. (The Court arrived at a split verdict when called to deliberate on the unconstitutionality of the MRE. The opinion in favor of retaining the MRE relied, inter alia, heavily upon the apprehension of misuse.)

[32] Mandal, S. (2014). The Impossibility of Marital Rape: Contestations Around Marriage, Sex, Violence and the Law in Contemporary India. Australian Feminist Studies, 29(81), 255–272. https://doi.org/10.1080/08164649.2014.958124

[33] A cluster of men’s rights activism groups operate in India which actively advocate for the retainment of the MRE, all operating under the larger umbrella of Save Indian Family, an NGO. More details available at: https://www.saveindianfamily.in/about-us/

[34] Masih, Niha. The Washington Post, In India, where divorce is rare, a debate ignites over marital rape, 28.02.2022, accessed on 27.05.2024, available at (https://www.washingtonpost.com/world/2022/01/28/india-marital-rape/)