May 01, 2015

What Indian Criminal Law Says of Marital Rape

The law does recognise marital rape. The concern is that the law does not adequately recognise marital rape as a crime. Under civil law, the Protection of Women from Domestic Violence Act, 2005, recognises sexual abuse as a form of domestic violence and, consequently, it recognises marital rape as a legal wrong, Under criminal law, the Indian Penal Code, 1860 (last amended in 2013), recognises the possibility of a man raping his wife only to promptly clarify that such rape within a marriage would not generally be considered to be rape for the purposes of Section 375 of the IPC which defines the offence of rape.

‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’ reads the second exception to Section 375 of the IPC. In essence, a wife who is not under 15 cannot be raped as far as this Section is concerned. If the IPC Section were to be read in conjunction with the Protection of Children from Sexual Offences Act, 2012, (or POCSO as it is called), it is possible that the law could be interpreted to make the rape of a wife between the ages of 15 and 18 a criminal offence through Section 42A of POCSO. However, there is at least one occasion on which a Delhi Court appears to have refrained from interpreting the law in that manner. (See State v Suman Dass, Patiala House on August 17, 2013.)

The relevant Sections of POCSO, which deal with the precedence of laws are:
42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540,370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding 45 of 1860, anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 
42A. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

The law is not, however, completely unconcerned about the possibility of a man raping his wife. A separate offence is contained in Section 376B of the Indian Penal Code which deals with the marital rape of a wife who is separated from her husband.
376B. Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.-ln this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Invoking Section 376B of the IPC is no easy matter though: the Section is buttressed by Section 198B of the Criminal Procedure Code which unequivocally states in relevant part: 'No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband,'

There is a Section in the Evidence Act, Section 114A, which states that in certain prosecutions for rape, 'where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent'. This presumption applies only in very specific cases of aggravated rape (listed in Section 376(2) of the IPC such as rape by a police officer in a police station to which he is appointed) and does not apply either to rape generally or to any of the offences defined in Sections 376A to 376E including the marital rape of a separated wife. In short: with reference to marital rape, there is currently no presumption which favours women.

As such, as far as marital rape in criminal law is concerned, in effect, except in the case of the separated wife, only the marital rape of a wife under the age of 15 is explicitly a crime. The marital rape of a wife between the ages of 15 and 18 may be criminal depending on how POCSO is interpreted. And the marital rape of an unseparated wife over the age of 18 is not recognised as a crime in and of itself. It may be considered to be assault but, then again, assault is not rape.

Further, although Section 498A of the Indian Penal Code does deal with cruelty against a wife, 'cruelty' (the 498A understanding of it, anyway) is not guaranteed to consider allegations of marital rape. For example, although the factual matrix isn't crystal clear from the decision, in Crl.M.C No.1628 of 2013, the Kerala High Court stated:
"[....] Initially the Prosecution registered a case against the petitioner/accused alleging offences under Sections 376, 342 and 506(2) I.P.C. Later, when it was established that the petitioner/accused had married the defacto complainant, the offences of rape and wrongful confinement were deleted. Now, what is remaining is only an offence under Section 498A I.P.C. [....] I have carefully gone through the materials in the records which show that the predominant allegation raised by the defacto complainant against the petitioner is that he has deserted her and failed to provide maintenance to her. Absolutely no allegation of physical or mental cruelty meted out to her is mentioned in the statements. Therefore, learned counsel for the petitioner contended that the prosecution is an abuse of the process of the court. Going by the allegations raised by the defacto complainant, it can be seen at the most that she is entitled to seek relief for maintenance. However, the prosecution under Section 498A I.P.C is without any legal justification."

Marital rape may be recognised under Section 377 of the IPC as it was in the case of State v. Vinod Saini decided on March 3, 2014 by Dr. Kamini Lau in Delhi's Rohini Courts. However, Section 377 which deals with 'unnatural offences', as the statute calls them, does not contain a marital rape exception comparable to that in Section 375 of the IPC. As such, while it may be possible for a court to recognise some forms of marital rape as criminal offences if they fall within the scope of Section 377, as a general rule, statutory constraints would prevent a court from recognising marital rape per se directly.

If at all a court were to recognise the marital rape of an unseparated wife over the age of 18 under current law, it would have to do obliquely via Sections dealing with such things as cruelty, although there is no guarantee that any court would in fact do so.

(Most of the Sections mentioned in this blogpost are contained in the 2013 amendments to criminal law.)