– This post is written by Manini Shah, a student of Symbiosis Law School, Noida
Despite the increased attention that the topic of marital rape has garnered over the last two decades, the literature in this area is still sparse. When it came to the situation in India, the idea of Marital Rape was always at the forefront. The Indian laws have been extensively working on violation, sexual assault and sexual abuse, but have turned blind eye to the concept of Marital Rape.
In general, marital rape is considered an act which initiates sex with one’s spouse without such, as is deemed appropriate, consent of the other spouse. India had been recommended to criminalise marital rape by the United Nations Commission on Elimination of Discrimination against Women. While the issue was pending before the Rajya Sabha, the government responded by saying that marital rape could not be seen as a possibility in Indian society that views marriage as a sacrosanct institution. The existing definition of Rape under Section 375 of the Penal Code, 1860 falls short on the following grounds: man cannot be victim of rape; woman cannot be perpetrator of rape; only penile penetration amounts to rape; marital rape is still not regarded as an offence unless the wife is under the age of fifteen; terms such as “consent”, “penetration” and “against her will” is not defined. Rape is a crime in most countries around the world, and most countries recognise it as such. So, what is it that is holding India, a burgeoning ‘superpower’, back? A careful examination reveals several factors: an antiquated IPC dating back to the Victorian era; a rigidly patriarchal society that suppresses women’s voices and agency across India’s myriad religions; and a culture in which marriage and family, in the dated sense of the words, still hold utmost importance as the building blocks of society. While the Indian Constitution ensures equality under Article 14, an exception to marital reforms discriminates against women raped by their own husbands by denying equal protection. The Supreme Court said the right to take decisions on sexual activity, in Suchita Srivastava & Anr v. Chandigarh Administration (2009) 9 SCC 1, fall within the very scope of the right to personal liberty, privacy, dignity, physical integrity provided for in Article 21 of the Constitution.
The Indian Penal laws haven’t just taken a back seat to the whole Marital Rape but also towards people of other gender being targeted by the same gruesome acts of sexual assaults and molestation. Amid the ongoing debates on laws surrounding marital rape, men’s rights activists have demanded to make the laws gender neutral. Around seventy seven countries worldwide have established gender-neutral laws and have accepted them. Gender-neutral laws were not used by the United Kingdom before, but, after R v. Ismail CACD 15 Feb 2005, it was held that the Court should not distinguish between vaginal, anal or oral violation; hence any penetration of anus, mouth, and vagina has been made punishable. There is therefore, no specific law in India for a man who is a victim of rape. Section 377 of the Indian Penal Code is an exception to the law of women that defines unnatural offences and criminalises carnal intercourse against the order of nature with any man, woman or animal. Aside from all of this, there is the POCSO Act that criminalises “male child” sexual assaults, but no such provision exists for male adults. The 172nd Law Commission of India in March 2000 recommended that rape laws in India should be made gender-neutral to protect male victims too. The overarching principle is the assumption that rape offences are desexualized and that the stigmata attached to them disappear. The government has not, however, acted to implement the proposals. Later in 2017, Adv. Sanjiv Kumar, a PIL was brought before the High Court in Delhi challenging the Constitutionality of the rape laws.
Many arguments have been presented before the courts, parliaments and the media opposing to the idea that men cannot be raped. “It is physically impossible for women to rape men” or “Real men can defend themselves against rape” were tossed around by senior members of the press. There is an urgent need to tend to the various sexual assaults and violence towards the male as well as the transgender community.
The need of the hour is to inculcate marital rape into the legal system and rightly punish those who wrong. Just because someone is married to the perpetrator, it doesn’t point towards implied consent towards sexual activity. The other thing which the law makers have to be sensitive about is that rape is not just penile intercourse and making it so only point towards the fact that men can rape and exploit women’s modesty and not vice-versa. Significant changes are required in the investigation, prosecution, and trial processes. The death penalty or castration of the accused is not viable options for reducing rapes. Rapid and effective justice delivery, as well as the prevention of crime is the only deterrence. A minor change in the penal code will not suffice. There is a need of classification of rape according to gravity within the section. Like incest, a more horrific crime committed by a protector is not addressed specifically in the section. Aggravated penetrative sexual assault should be defined and incorporated in the IPC. The Justice Verma Committee Report proposed a compromise solution to make the victim gender inclusive while keeping the perpetrator gender specific. The transgender community and the male victims are thus protected against homosexual rape. At the same time there is no fear of counter-claims and prejudice against women. As various feminists and queer groups put it the law must be Gender Just, Gender Sensitive, NOT Gender Neutral Rape Laws.
