Marital Rape Law: The misuse that has already begun

Heated arguments are being made on a daily basis before the Delhi High Court as the exception in the Indian Penal Code granting husbands immunity from charges of rape is scrutinized on the anvil of constitutional rights of women. While the petitioners are vehemently asking for the exception to be struck down, the defendants are arguing that there already exist provisions under criminal and civil laws providing remedies to a married woman against sexual abuse.

The exception contained in Section 375 of the IPC – the section that defines the offence of rape in India - states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. It is this exception that has been challenged by RIT Foundation, All India Democratic Women Association and two individuals. Opposing the striking down of this exception are the Delhi government, NGO Hridaya Foundation and Amit Lakhani and Ritwik Bisaria of Men Welfare Trust.

As the country discusses whether India should bring the sexual relationship between husband and wife within the ambit of rape, one of the most common concerns against the same is that false accusations could be levelled by disgruntled wives against husbands to harass them and their families. Even though it is a legitimate concern, it has been played down by the petitioners and even the Bench, which observed that “every law can be misused but it cannot be a ground not to bring a law.” This argument looks fair on the face of it, but ground realities cannot be ignored while bringing a new law if we are truly concerned about equal rights of every citizen.

I have been working with falsely accused men for a decade now. While the petitioners have put forth laws from different countries to make a case for criminalization of marital rape, they have failed to look at the strong safeguards these nations have against perjury, false accusations and wrongful incarceration. These are almost absent when it comes to prosecuting women who file false cases in India. When was the last time you heard a woman being jailed for a false dowry case? When was the last time you heard a man who was falsely accused in a rape case being given adequate compensation? The answer probably is never.

In 2005, Supreme Court termed misuse of dowry laws as “Legal Terrorism.” In judgment after judgment, misuse of Section 498A IPC has been documented by various courts of India. In 2014, the Supreme Court passed guidelines against immediate arrest of husbands. Since then, allegations of sexual abuse have made their way into FIRs in matrimonial disputes, in order to ensure arrest of the husband and his family. Complaints filed in such disputes these days are a hybrid mix of allegations of dowry and domestic violence against the entire family, unnatural sex cases against husband, rape cases against fathers-in-law and molestation cases against brothers-in-law. There are real cases where a one-line allegation by the complainant without any mention of date or time or place of the alleged incident led to incarceration of the husband and his entire family, even though no such crime ever took place. These have been shared with me by husbands who are going through marital disputes with their spouses.

A demand of 5 crore in exchange for withdrawing all cases; an unnatural sex case filed against the husband after 13 years of marriage and two kids without any date or time or details of the incident mentioned; FIR filed after days, months and years after the alleged incident so that medical proof has no relevance; change after change in statements to invoke as many sections as possible; FIR copies sent to the office of the husband to get him ousted from his job. These are some of the cases that have been filed against husbands. There are thousands of existing cases where sexual violence allegations have been added only to get the husband and his family arrested. And it’s working. Some men have spent 90 days in jail, while others have spent 6 months. These are men who would have otherwise been granted bail had it been only a dowry case.

In 2014, the Supreme Court had held in the Arnesh Kumar judgment that jail should be the exception in cases where the prescribed punishment is less than seven years’ imprisonment. The inclusion of serious offences in such complaints to work around this verdict has been the pattern post 2014. Anyone who questions this can analyse allegations made in marital disputes before and after 2014. It can’t be that women would earlier not mention allegations of sexual violence if they were subjected to the same in their FIR just because marital rape isn’t recognised.

Listen to this conversation between a lawyer and a woman where they are concocting allegations of molestation against the latter’s father-in-law so that they can demand 50 lakh from the husband. It’s a real clip shared in my documentary “Martyrs of Marriage,” which is about the misuse of 498A IPC. There are cases where 75–80-year-old fathers-in-law have been thrown behind bars on allegations of rape by daughters-in-law with matters then settled after payment of huge amounts of money.

If marital rape were to be criminalised, how would a man prove he did not rape his wife if she complains of an incident that occurred five years ago? The police cannot refuse to register an FIR if a woman complains of rape. What preliminary investigation would they do to ascertain if a crime happened or not? Today, a woman needs nothing else but her statement to file a rape case. Any evidence put forth by the accused is rarely considered by the police. There has been gross abuse of rape laws since 2013 and it would be anyone’s guess as to why such allegations have not made their way into marital disputes.

In fact, people have stooped to the lowest of lows in matrimonial disputes in India. They are not even sparing children and are abusing The Protection of Children from Sexual Offences Act, 2012 (POCSO) to settle scores with partners. A Delhi Court recently granted anticipatory bail to a father after his wife got the kids to file a false POCSO case when the man got to know about her extra marital affair. In such a scenario, saying misuse of law is no ground not to bring in a law would undermine the misery, trauma and lifelong consequences that false accusations have on individuals, especially men.

If we are talking about protecting the dignity of women, we need to also talk about protecting the dignity of men against false accusations. The Constitution doesn’t discriminate on the basis of gender. It’s time that our lawmakers and judiciary also did not.

The images below elaborate how Sections 376 and 377 have already made their way into matrimonial disputes since 2014, post the Arnesh Kumar Judgment.

They have been edited to hide the identities of the senders.

Deepika Narayan Bhardwaj is a documentary filmmaker.

Disclaimer: The views and opinions expressed in this article are of the author's and do not necessarily reflect those of Bar & Bench.