Analytical Study on the Conflict Between Criminalization of Marital Rape and Conjugal Rights

The issue of marital rape is commonly referred to as spousal rape, which persists globally despite an increased understanding of women's rights and autonomy. This study explores the historical, legal, and cultural foundations of marital rape and its impact on women's lives. It looks at the crime's jurisprudential interpretation, highlighting societal systems that have let criminals carry on with impunity. International laws and treaties on marital rape are also examined in this article, in addition to India's legislative and judicial system.

By looking at court decisions, it makes clear the subtleties surrounding the illegality of marital rape and the challenges in prosecuting it. Criminalizing marital rape will undermine the institution of marriage and affect the rights of the spouses. The main topic of the article is the criminalization of non-consensual sexual relations by husbands and the impact on marital rights. This leads to a discussion of whether or not such acts qualify as "marital rape" and the legal exceptions for them.

Introduction

Marital rape is the term used to describe sexual acts or sexual encounters carried out by a husband without the wife's permission. Because the institution of marriage grants immunity to the husband, non-consensual sex by the husband is not a crime in the majority of countries. Only fifty-two nations now have laws that make marital rape a criminal offence. Marital rape is not considered a crime by the law or culture in many countries, including India. When a victim and the perpetrator are married, the law does not apply, even in nations that regard rape as a crime and have defined punishments for it. The "marital rape exclusion clause" is a common term for this.

Contrary to what the petitioners claim, MRE (Marital Rape Exclusion) does not in any way anticipate or mandate that a wife consent to forced sex by her husband or encourage a husband to force himself on her. A basic reading of Sections 67, 85 and 86 of the Bharatiya Nyaya Sanhita (BNS), 2023, as well as the provisions of the Protection of Women from Domestic Violence Act, 2005, makes it clear that there are remedies available to address non-consensual sex between spouses.

The specific statement was made in a split ruling by an Indian court that questioned the criminalization of marital rape, but it is still exhaustive because the other judge in the same case offered the exact opposite argument. The main argument against criminalizing non-consensual sex by a spouse is that having sexual access is a reasonable expectation under marital rights. The other argument against making marital rape a felony is that it differs from rape in general, including the element of consent. (RIT Foundation v. Union of India, 2022)

The study examines the justification for making marital rape a crime and for not classifying the act as being comparable to rape. Several guidelines and measures have been presented in both the international arena and local legislative acts to address the issue of MRE's constitutionality, which has also been tested in court on several occasions due to its violation of women's autonomy and rights. The state refrains from classifying marital rape as a crime to protect spouses' rights, hence the criminalization of the practice has an indirect effect on such rights.

International Viewpoint on Criminalizing Marital Rape

Countries like India, Sri Lanka, Kenya, and others do not explicitly outlaw marital rape. However, most U.S. states recognize marital rape as a crime.

Human rights are now commonly recognized to be violated by acts of violence against women. However, a particular form of gendered violence known as marital rape has escaped criminal law punishments.

The international standards require state parties to firmly prohibit sexual assault against women, especially when a spouse engages in non-consensual sexual activity.

Women's fundamental human rights, particularly their right to equal protection under the law, are violated when states fail to make marital rape a crime. Furthermore, by not making marital rape a crime, these states are also failing to uphold their international commitments to defend women's legally guaranteed human rights to equality, liberty, and personal protection.

Most notably, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the Universal Declaration of Human Rights (UDHR) recognize the fundamental human rights of women.

According to Articles 1-3 and 5(a) of the CEDAW, marital rape and other forms of sexual violence are prohibited as GBVAW (Gender-Based Violence Against Women), as is discrimination. According to CEDAW General Recommendation No. 19: Violence Against Women:

"The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty."

The Fourth World Conference on Women was held in Beijing in the year 1995, a remarkable event in the global push for women's rights and gender equality.

Marital Rape Exception in India

In India, the concept of marital rape appears to be unclear; numerous rulings have reaffirmed that the act is not marital rape but rather distinguishes between "rape" and non-consensual sexual relations carried out by a spouse. Rape is made a crime under section 375 of the Indian Penal Code (currently Bharatiya Nyaya Sanhita, section 63). The concept of "rape" is broad and includes both sexual contact and other forms of sexual penetration, such as oral sex. The application of this provision to sexual activities or sexual contact between a husband and wife is, however, excluded in Exception 2.

Exception 2 of BNS:

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."

Therefore, under Indian law, a woman has no legal recourse if her husband rapes her.

The Law Commission of India's 42nd Report, 1971 offered recommendations and expressed its opinion on marital rape. First, it said that in situations where the husband and wife were legally separated, the marital rape provision exception should not be applied.

The legality of the exception clause was specifically addressed by the Law Commission in its 172nd Report. In this instance, during the consultation rounds, there were disagreements on the validity of the exemption clause itself. It was argued that since other violent acts by a husband against his wife were already prohibited, rape alone should not be immune from the law's application. The Law Commission rejected this argument because it believed that criminalizing marital rape would result in "excessive interference with the institution of marriage.

Effects on Conjugal Rights

Marital rights are those that are intended for the subjects of marriage, derived from the customary institution of marriage and explicitly included in the Constitution's guarantees of personal liberty and the right to life. According to Hindu, Christian, and Parsee law, marriage is an indissoluble sacrament, but under Muslim law and the Special Marriage Act, it is considered a legal contract. Nonetheless, marriage is unquestionably the bond that unites Indian culture.

There are several arguments in favour of a spousal exemption from the rape statute, claiming that the marriage contract implies perpetual permission to sex. As a result of entering into a legally binding contract with her spouse, “a woman forfeits her rights to her body when she marries.”

The proponents of the "marital rape exception" believe that criminalizing marital rape would violate the institution of marriage and limit the rights granted to the parties to the union.

“It is indeed likely that a rape prosecution by a wife against her husband would destroy the possibility of reconciliation.” The Delhi High Court ruled that "applying the constitution will only weaken the links in a marriage and will be a ruthless destroyer of the marital institution, hence it will not be desirable in marital problems. (Harwinder Kaur v. Harmanadar Singh Choudhary, A.I.R 1984 Del 66)

In an institution of marriage, there exists a continued expectation, by either spouse, to have fair sexual access from the other.Although these expectations do not give the husband the right to force his wife into having sex against her will, they provide the legislature with enough justification to differentiate between instances of nonconsensual sex that occur in the marital sphere and those that do not.”]

The other devil’s play which brings conflict with the criminalization of marital rape is the ‘Restitution of Conjugal Rights’ which involves consortium and cohabitation.

Restitution of conjugal rights is a positive remedy that requires both spouses to live together. In a few rulings concerning the restoration of conjugal rights, the topic of sexual independence and personal autonomy inside a marriage has come up. Although it never coerces a party, conjugal rights are a legal remedy to restore marital cohabitation.

In T. Sareetha v. T. Venkata Subbaiah (AIR 1983 AP 356):

"It is of constitutional significance to note that the ancient Hindu society and its culture never approved such a forcible marital intercourse. Our ancient law-givers refused to recognize any state interests in forcing unwilling sexual cohabitation between the husband and wife although they held the duty of the wife to surrender to the husband almost absolute."

Conclusion

Based on the aforementioned arguments, it may be said that a husband engaging in non-consensual sexual activity with his wife should not be considered marital rape because it undermines the institution of marriage and damages the sacred bond between a husband and wife. Most people view the struggle as one between personal autonomy and marital duty.

However, the Indian Penal Code 1860 (now Bharatiya Nyaya Sanhita, 2023) and the Protection of Women from Domestic Violence Act, 2005 appear to be fulfilling their mandates in protecting the sexual autonomy and fundamental rights of wives by offering relief in cases where the wife has been sexually, physically, or mentally assaulted by her husband or any other family member, as well as maintenance, compensation, and the ability to file for divorce.

In the RIT Foundation v. Union of India (W.P.(C) 284/2015 & CM Nos.54525-26/2018 ) C. Hari Shankar, J. said:

'Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim."

Therefore, the conclusion comes that, although marital rights give rise to a marital obligation to ensure that the institution of marriage achieves its goal, they never tend to take away the personal liberty of the people involved in a marriage and do not shield them from wrongdoing. Given that marital institutions can have a significant impact on society, the state still must actively intervene in these matters.