Home is supposed to be a snug place where we seek comfort or rest after a tiring day, a place where we are supposed to feel secure and sheltered. But for a large group of women, this is not true. The NFHS 5 (2019-2021) report revealed that 83 per cent of married women, aged 18-49, have been sexually violated by their companion, while 13 per cent have reported the same about their former partners.

The data is similar to that reported in NFHS 4 wherein, out of 4,169 married women, 82 per cent of women had claimed that they had experienced sexual violence in their lifetime. The statistics are clear that we are stagnant when it comes to women’s rights. Rape is one of the most heinous forms of crime that still lacks a precise definition under international law. Rape or any sort of outrage upon personal dignity has become a sordid trend. The grim reality persists that it has not been attended by the international community with enough sensitivity.

Instead of taking a leap toward prevention, the archaic notion of morality still pervades. The relics of the Hale Doctrine, the jurisprudence of Mathew Hale on marital rape, still act as diktats which should have been obsolete in the first wave of feminism. In the context of India, the penal statute has a disconcerting exception that provides for immunity to rape in wedlock i.e., Section 375 Exception II.

The provision has been appreciated by other provisions of personal laws such as restitution of conjugal rights wherein, by a court’s decree, a spouse who has subtracted from the marital society is coerced to cohabit with the companion In relation to conjugal rights Sec 9 of the Hindu Marriage Act,1955 and Sec 22 of Special Marriage Act, 1954 have been challenged in the apex court in Ojaswa Pathak vs UOI in 2019. However, the matter is sub judice before the apex court. In India, the provisions based on the doctrine of coverture thrive in the personal as well as penal statutes.

A dialogue on all forms of rape is critical to avert this abominable act, making it pivotal to have an all-encompassing definition of rape, which is missing in India. The provision of rape in the penal statute is not unassailable and has many loopholes.

This has allowed several times the perpetrators to walk away even after committing atrocity. The judiciary conceptualised rape wherein a survivor must have fought tooth and nail against the perpetrators. And only if the resistance is proved in a court of law that the women would be considered to be raped.

This has been reiterated several times by the apex court. For instance, the Tukaram vs State of Maharashtra verdict is also famously known as the Mathura case. The court while setting aside the conviction considered the ruptured hymen of the survivor as the litmus test. The court established that the survivor was habituated to sexual intercourse and did not resist and hence does not fall in the ambit of rape.

The court over-relied on the survivor’s past instead of focusing on the fact that she did not consent to the sexual intercourse. Post the verdict in 1978, many academicians and members of civil society came to the forefront and few wrote an open letter to the then CJI Y.V Chandrachud, questioning whether passivity could be understood as consent? In the letter the members challenged the verdict of the apex court, seeking to reopen the case stating the matter was adjudicated on ‘chauvinistic assumptions’. And that the matter must be reappraised by a larger bench.

Several petitions were filed in the apex court seeking to reopen the case but all were dismissed based on the premise of lack of locus standi. This was the first time that public opinion was galvanised to bring reform in respect of violent crimes against women in India. And an amendment was brought to the penal provision i.e., the Criminal Law (Second Amendment) Act of 1983, although it is pertinent that the amendments did not completely serve the purpose.

The 172nd Law Commission Report, 2000 had recommended broadening of the definition of Sec 375 wherein the word ‘rape’ should have been substituted with the word ‘sexual assault’. This in turn would have widened the definition and would have covered all forms of sexual violence. Post the Nirbhaya incident the Justice. J.S Verma Committee had tabled a comprehensive draft to amend the criminal law of the country. The recommendations in the draft included criminalising marital rape.

However, under the Nirbhaya Act, neither marital rape was criminalised nor the word ‘rape’ was substituted with ‘sexual assault’. Also, an unequivocal consent clause in the section has been diluted by the Delhi HC’s verdict in Mahmood Farooqui’s case. In this particular case, the court interpreted consent to mean that the accused should be able to discern the lack of consent.

This exception to consent by the apex court jeopardizes the very foundation of the concept of consent and shifts the onus of the proof onto the prosecutrix. The persisting problem of marital rape has been condoned because rape is not seen through the prism of sexual assault, and had not been perceived as an assault in domestic relations. However, sexual assault must also be defined since in conventional interpretation it is confined to be merely an ‘indecent act’. Whereas, for the lucidity of the provision, it is important to include non-consensual carnal intercourse in the definition of sexual assault.

This will cater to the rights of all the genders who are subjected to sexual violence. The Soviet Union through Art 169 of the Soviet Criminal Code of 1922 had criminalised the exception of marital rape and became the first country to criminalise marital rape. This was followed by Poland in 1932 wherein marital rape was made an offence against morality.

The trend continued in the revised Criminal Code of 1969 wherein the offence was categorized as an offence against freedom which is the mirror reflection of the Soviet Criminal law. Notwithstanding this, the condition of women in several countries remains precarious. In several countries, the legal system provides safeguards against prosecution to the perpetrators if they marry the rape survivor.

According to a report by United Nations, 2.6 billion women have no legal safeguards against sexual violence in domestic relations. In 2019 the United Nations urged countries to reform domestic penal statutes. Also, according to UNFPA (2021), 43 countries have not criminalised marital rape.

The report further states that the Indian penal statute has sanctions but no provision for penalties. In the Delhi High Court, two Public Interest Litigations (PIL) have been filed by the RIT Foundation and All India Women’s Foundation. And two petitions were filed by two individuals. The clubbed petitions have challenged Exception-2 appended to Sec 375, along with Sec 376B (Sexual intercourse by husband upon his wife during separation) of the penal statute and Sec 198B of the Code of Criminal Procedure (not taking cognizance in matters related to Sec 376B) wherein, Justice Rajiv Shakdher has held the exception to be violating the ethos of the Constitution.

On the other hand, Justice C. Hari Shankar has upheld the exception since sexual intercourse is expected in a marital bond and cannot be termed rape. The court touched upon several facets of law, but could not conclude the constitutionality of the above-mentioned provisions.

Since the division bench could not unanimously reach a consensus, the court simultaneously had allowed a certificate of leave to appeal to the apex court. On 17 May 2022, one individual, Khushboo Saifi had filed an appeal against the Delhi HC’s order before the apex court. However, the definition of rape has not been touched upon. Although the Delhi High Court has delivered a split decision, Justice Shakdher had appreciated the arguments of both the parties. The argument forwarded by the respondents, Hridaya and Men Welfare Trust, to make the heinous law gender-neutral and not gender-specific has been considered by Justice Shakdher.

Similarly, Justice A Muhamed Mustaque of Kerala High Court had observed that the provision of rape in the penal statute is not gender-neutral and the court must assess the dominance and subordinate role of both the parties. The adherents of the exception (Section 375) claim, that there would be rampant abuse of the provision if marital sexual violence is criminalised.

The rationale of those who advocate sexual violence in the domestic sphere fails to comprehend that such rationale does not hold water to allow a provision to existing in the statute which encroaches upon an individual’s dignity. Also, if such rationales are to be followed then many provisions of the penal statute would come under scrutiny.

If the provision is abused the legislature is free to enact upon the same and the courts are to adjudicate the case. If the adherents of the exception still desist the progression, it infers that they have forsaken faith in the judiciary.

It is also relevant to mention that the source, the United Kingdom, which had propounded the doctrine of coverture has criminalised marital rape via the Sexual Offences Act of 2003. This approach would encompass sexual violence against the LGBTQ+ community and make it an equally heinous offence.

The demand for the same has been raised since the Nirbhaya case. As many rights activists have staged a protest to include gender neutrality in the provision of rape, the Justice Verma Committee had even considered making the provision genderneutral.

The bottleneck to the particular provision was that it would jeopardize the dilapidated condition of an already oppressed community. Several cases of sexual harassment against the community had surfaced in the past. But because of the lack of statutory provisions defining the act, no liability arises and the cases are taken lightly.

In 2019, the enactment of the Transgender Persons (Protection of Rights) Act was a needed enactment but has its fair share of lacunae. Since the rape laws do not encompass the LGBTQ+ community, the 2019 enactment is the only safety net for them.

Also, the enactment does not scale a transgender as a woman since the provision in Transgender Protection Act states that endangering the life, safety or well-being of transgender (inclusive of physical abuse or sexual abuse) shall be punished with imprisonment that may extend to two years.

For sexually assaulting a woman under the penal statute the perpetrator shall be punished with rigorous imprisonment which shall not be less than ten years. The Constitution is an organic and living document but it needs to evolve and the judiciary plays a pivotal role in the interpretation of the black letters of the law.

It is apparent from the final speech of Dr Ambedkar in the Constituent Assembly that “however good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be good.”

In the light of past precedents where the ambit of Art 21 has expounded a plethora of rights, it is expected that the court would consider the fact that women are not subservient to men, that they are unfettered and not domestic slaves. The ambiguity of law impedes justice and hence it is expected that rape in any or all forms shall be criminalised in its entirety.