Marital Rape and Criminal Law

INTRODUCTION

According to Hindu mythology and scriptures, marriage has a very important role in the life of a person which is considered very pious, the sacrament. It is not merely a relation but an eternal union between two souls which is made in heaven and celebrated on earth.

But in today’s era, this pure institution of Marriage has lost its value. The Patriarchal society and rigid mindset have led to various cruelty on women. There has been a prompt increase in sexual assault within the institution of marriage. One of such cruelty is “MARITAL RAPE”.

The country, where goddesses are worshipped, male are seen to involve in proving their muscularity, masochism and dominant position over their wives by forcing them to have non-consensual sex, which is no less than rape; but done within the tag of marriage.

The law doesn’t deal with marital rape as a criminal offence. Even if it does, the problem of penalty remains lost in a cloud of legal uncertainty. The Indian Penal Code, 1860 still stands barefacedly chauvinistic in its approach as it denies to visualize forcing wife to non-consensual sex by the husband as rape at all. The Personal Laws as well lay no ground for divorce based on ‘marital rape’.

This situation has made marital rape more traumatic for a woman as she needs to live with a rapist who is her husband and has to undergo the trauma of being assaulted or abused physically as well as mentally and continues to suffer such maltreatment of her husband in helplessness. However, Indian social practices and legal system mutually deny sexual agency and the bodily integrity of women human rights which lie at the heart of every woman.

In the current situation, it can be seen that women are not safe even in their own homes. whether it is marital rape or done by a stranger. Rape is rape, just a tag of marriage does not give license to the husband to have intercourse. Sex should only be done with mutual consent, love, care and communication between the partners. The legal system must be forced to simply accept rape within marriage as a criminal offence.

MEANING

According to the Oxford dictionary, marital rape in a very simple and plain language means, “rape committed by a person to whom the victim is married”.

This definition leaves no stones unturned regarding the marital rape being a rape, which happens behind those closed doors in the name of a sacred institution of marriage.

Marital rape also called spousal rape is an immoral act where a man engages in undesired sexual intercourse with his wife. It is considered as the gravest offence which destroys the main covenant of marriage that is, a consensus which involves any unwanted sexual act by a spouse or ex-spouse, committed without consent or against the will of a person, obtained by force, or threat of force, intimidation, or when a person is in the state of intoxication, thus, unable to consent.

These sexual acts consist of intercourse, anal or oral sex, forced sexual behaviour with other individuals, and other sexual activities that are considered by the victim as degrading, undignified, painful, and unwanted.

Rape is an offence that hinges on the absence of consent of the woman. It is vital to realize that the absence of consent does not have to be only in the form of the word ‘no’. It should be presumed from the context of the situation. Within a conjugal relationship, if a woman gives consent to sexual intercourse because of the threat of injury to children or herself, depriving the woman of the right to stay in her husband’s house or receive maintenance, it is not valid consent. It still amounts to rape.

 

TYPES

There are three types of marital rape as identified by legal scholars as generally prevalent in society such as: –

Force Only Rape: In “force only rape” a husband uses threats and violence only to the degree necessary to coerce sex with their wives. The violence typically takes place after the woman has refused sexual intercourse.

This type of rape usually happens in relationships where violence is predominately verbal or where violence occurs only in sexual interactions.

Battering Rape: In battering rape, women experience violence in various ways. In this type of rape women is subjugated to both physical and sexual violence in the relationship where beatings and rape are combined.

The majority of marital rape victims fall under this category where rape usually happens following a physically violent episode. In certain cases, physical violence continues during sex, and the sexual act is also violent.

Obsessive Rape: The most openly sadistic form of rape is called “obsessive rape.” The abuser seems obsessed with sex and violence.

In these relationships, the maltreater may use violence to become aroused. Women experience the assaults involving torture or “perverse” sexual acts and the act itself is physically violent.

 

HISTORICAL BACKGROUND 

A time when laws began to explore and develop by the society to define what shall be tolerated and what shall be considered as acceptable behaviour, some actions of people got overlooked due to certain concepts which were highly abused during that time and even now have not been break off completely in some of the parts of the world.

The concept which played a major role in the exemption of marital rape from rape laws was the idea prevalent during that time, that a woman gives irrevocable consent to her husband to satisfy his sexual pleasure anytime he wants.

It was considered that once a woman is married, she becomes one with the husband that is two bodies, one soul. since raping oneself cannot be considered a crime therefore, marital rape can never be considered as a crime.

It was understood that the husband has complete and absolute control over his wife and control over her sexuality was just one of the aspects of his control among different affairs.

Women were considered to be the properties of their husband. The doctrine of coverture was also a major component at that time in the contribution of the legalization of marital rape. According to this doctrine, after marriage, the husband and wife are considered one person in law that is, the very being or legal existence of the woman is suspended during the marriage.

The man cannot be criminally prosecuted for raping his spouse under the Indian legislation. This inability to prosecute a husband can be traced back to the assertion made by Sir Matthew Hale, C.J., in the 17th century in England.

According to Hale,

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”[1]

This established the concept that once married; a woman does not have the right to refuse sexual intercourse with her husband. The hypocrisy lied within this legal structure where the rape of an unmarried woman would be considered as a crime but the same woman would lose the right to raise her voice against her husband who had intercourse with her without her consent.

The amazing fact was that the husband could never be seen as a rapist, but some other man would be called a rapist if he commits the same crime. This hinders the principle of human rights of woman by allowing the right of sexual access to the husbands over their wives with an “approval to rape” their wives.

 

PHYSICAL AND PSYCHOLOGICAL AFFECT 

It is a fact that women who are raped by their husbands are more likely to experience several assaults and they also suffer long-term physical and psychological problems.

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The forceful sexual intercourse is an attack on the other spouse who does not give consent to be a part of it.

Marriage does not mean to take away a spouse’s right to have autonomy on their bodies. There ought to be mutual respect, space and companionship among the couple and not the suffocation attached with absolute physical rights to the dominant spouse in the marriage. The forceful act happened to women is disregarding and disrespecting the women identity and feelings and lead to suffocated marriage due to the act of husband committing marital rape is a form of sexual, domestic, psychological abuse on the other partner.

Marital rape is not an event causing little trauma instead it often has severe and long-lasting consequences for women. The marital rape causes physical effects on the body of women which may include injuries to private organs, lacerations, torn muscles, soreness, bruising, fatigue and vomiting.

Women may also experience some other physical consequences such as broken bones, bloody noses, and knife wounds that occur to the women who have been battered by their husband during sexual violence.

It may also include some gynaecological consequences of marital rape which include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV.

Women who are raped by their partners are also likely to suffer severe psychological consequences. It includes Some of the short-term effects that are anxiety, shock, intense fear, depression, suicidal thoughts, and post-traumatic stress.

In Long-term effects, it may include disordered eating, sleep disorder, depression, problems in establishing trust in relationships, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting.                                            Some marital rape survivors may continue flashbacks, sexual dysfunction, and emotional pain for years after the violence.

 

CAUSES OF MARITAL RAPE STILL LEGAL IN INDIA

There can be several causes behind the commission of marital rape still legal in India such as-

Lack of laws 

Indian laws not stated any legal action against marital rape anywhere in any law except in section 375 of IPC which clearly states under the definition of Rape that husband engaging in sexual acts with his wife, not below the age of 15 years will not be covered. So, there is the absence of any law on marital rape.

Privacy of relationships

The fear of social image against the commission of marital rape is one of the main dominant reasons to hide this evil of marital rape behind the sacred relationship of marriage. The woman has rights to protect the privacy of her body in case any stranger violating such privacy, but when the same violation is done by her husband then, such protection is taken away by the legislators.

Due to this wife has to have sex with her husband every time on demand irrespective of her will, consent, health, etc. The “consent” of a woman has not been considered important anywhere.

Economic dependency

Economic dependence is another point of a woman and her children over her husband and in-laws due to which women victims don’t come forward for the violation of her rights to protect themselves from the wrongful practices and are bound to face the brutality of her husband. Though this mindset is changing slowly and steadily but it is still prevalent in society.

Family pressure

According to Hindu Law, marriage is a sacrament institution, which is once tied then can never be broken down by anyone due to any reason. The objective behind such a relationship is to perform religious duties and to produce children. Therefore, marriage is compulsory and more so in the case of female whereas under Muslim law marriage is a social concept and it clearly states that marriage is a mode of fulfilling sexual desires of men whether a women want or not. So, in all religions, no focus is given on the human rights of a woman as if they have not been identified as humans.

Statistical analysis

in India, it is believed that women are 40% likely to be subjected to rape from their husband than by an unknown person. According to a survey conducted in 2013, approx. 27,515,391 women aged from fifteen to forty-nine years went through sexual violence in India, among the number, 2,522,817 of those women falls under the age group of fifteen to nineteen years.

This age group experiences 24% of the rape cases in India. Although marital rape cases are rarely reported due to variety of reasons and among them first and foremost reason is marital rape is being excluded from the definition of rape under section 375 of IPC. So when the law itself not recognize an offence, how a woman can be expected to report in such a situation. Estimates are that only 1% of rapes are reported.

 

RAPE AND MARITAL RAPE 

Rape is an offence against women. Encroachment of her dignity and self-esteem without her consent and when such an act is committed by her husband, it puts the woman to the position of an object used merely for fulfilling one’s sexual desires.

If we consider rape as “genus “, then Marital rape is its species. Marital rape is any undesirable sexual conduct by a partner or ex-partner, committed without the consent of female’s will, or consent may be obtained by force, or threat of force, intimidation, or when a person is not in a state of giving consent that is forceful sexual intercourse by a man with his wife.

The sad part is that the idea of “consent” stands invalid and this form of domestic violence and sexual abuse is still not recognised as a crime in India and many other parts of the world.

In Indian society marital rape is the most common and offensive form of humiliation, it is hidden behind the cover of marital status. Social practices and legal provisions in India mutually declare the denial of women sexual agency and bodily privacy, which is the core right of a woman human right.

Difference between rape and marital rape

In Indian Law, Rape is being criminalised under section 375 of IPC, but marital rape is not yet recognised as a crime and it is just an exception to section 375 of IPC which states that Sexual intercourse by a man with his wife is not rape, on the condition that the wife should not be under fifteen years of age. Therefore, it is clear that marital rape can’t be covered under the definition of rape.

The relationship between the victim and rapist is not necessary to constitute any action to be considered as rape, whereas marital rape is a species of rape. Therefore, it deals explicitly with the non-consensual sex by the spouse of a wife. Hence it can be said that marital rape is a legal action according to section 375 of IPC though any law is not very clear on this matter.

MARITAL RAPE AND LAW 

Marital rape is not an offence in India. Despite various amendments, law commissions report and new legislation, one of the most humiliating things is that such a heinous act is not an offence in India. The point which is focused here is that the concern of a woman for protection of her marital relationship irrespective of not having any personal protection of her privacy, which tells us that the legislation has been either non-existent or obscure and everything has just dependent upon the will and sexual demands of males in a marital relationship.

Marital Rape under Indian Penal code 

Interpretation by Courts has a major role to play in deciding such cases as there is no stated provision for such offence. Section 375 of IPC, define rape and specifies the acts which are to be considered as rape before the law, said section has echoing very obsolete sentiments, mentioned as its exception clause i.e. any man engaging in any sexual acts with his own wife, and the same must not be below the age of 15 years will not be considered as rape.

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According to Section 376 of IPC, any person accused of committing rape should be punished with imprisonment of not less than 7 years, that may extend to life or for a term upto 10 years and shall also be liable to fine unless the victim is his own wife and she is not under 15 years of age, in that case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both. Under this section, marital rape considered as an offence only on one condition i.e. When the wife faces such a heinous act is below 12 years of age.

If the age of the wife is between 12 to 15 years and any sexual or forceful act is committed by her husband against her consent will attract milder punishment. If the woman is above 15 years of age then, there is no legal protection provided to her for the protection of her human rights.

The Loophole here is when the legal age of consent for marriage is 18 then why protection from sexual abuse if married before 18 is given only up to 15 years of age, there is no remedy available if the age of a woman is 15 years. So, the rape of wife of above 15 years in age is not a punishable offence.

Justice Verma Committee’s Recommendations and The Response of Government

The 172nd Law Commission report, which was passed in March 2000 has considered rape within the bounds of marriage” as such a provision may amount to excessive interference with the marital relationship. To Further strengthen anti-rape law, On December 23, 2012, Indian government constituted Justice Verma Committee after the Delhi gang-rape case comprising of retired Justice J.S. Verma, retired Justice Leila Seth and Solicitor General Gopal Subramanian, they recommended that the exception for marital rape should be removed and the relationship between the accused and the victim is not a valid defence.

But in the Criminal Amendment Act 2013, the recommendation of Justice Verma Committee’s suggestions on marital rape was not considered. On 10th March 2016, the statement given by Maneka Gandhi Minister of Women and Child Development in Rajya Sabha on the question of whether the government is criminalizing marital rape?

In April 2015, the cabinet minister also expressed the same words of the State of Home Affairs Haribhai Parathibhai Chaudhary in Rajya Sabha. This is for the second time when the central government has regretted on criminalising marital rape using the same words:

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament etc.” This is the reasons given by the people representative on behalf of the Indian government.

The report submitted by the Justice Verma Committee mainly focusses on the removal of the exception to marital rape.

In 1983, Some steps were taken towards criminalizing domestic violence against the wife when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. The amendment was made on the recommendations of the Joint Committee constituted for the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India.

This joint committee rejected the contention that marriage is a licence to rape. Thus, a husband can be charged and imprisoned up to 2 years, if there is sexual intercourse with the wife without her will or consent and if she is living separately from him under any decree or custom or any usage. However, this is not absolute legislation in itself to deal with this issue, much more needs to be done by Parliament on this issue of marital rape.

The Law Commission in its 42nd Report recommended for the inclusion of sexual intercourse by a man with his minor wife as an offence. But the Joint Committee that reviewed the proposal dismissed this recommendation. It is argued by the Committee that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package.

Many women’s organizations and the National Commission for Women have been demands for the deletion of the exception clause in Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his own wife under fifteen years of age, is not rape”.

However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be a wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes for women.

From the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It recommended that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation of the Taskforce, the Law Commission’s proposed definition of “sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as “it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition.

Legislators need to be rationale and expedite to bring reform in the legal system to stop this atrocity named marital rape. Judicial system as the last resort of any victim will feel helpless if there is no legal provision. So, it is need of the hour to create specific legal provisions to curb this outrageous or heinous conduct of husbands against their wives and protect women by providing them with the legal remedy.

 

JUDICIAL DECISIONS 

In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played a crucial role in recognizing it as an offence.

The judiciary in India, by passing the much-needed legal reforms can lead the way to encourage women and to protect them from the violence they face and help them bring about a change in the way marital rape is viewed in society. Rape is rape and marriage cannot be used as an excuse for committing such a heinous offence.

The judiciary in India, by passing various judgments bring out various legal reforms needed in the society to take action against the violation faced by women in the society.

Some of the important judgements of the judiciary on marital rape are-

In the case of Francis Coralie v. Union of Territory of Delhi[2], Supreme court said that the right to live does not mean just about animal existence. It does not limit itself to the protection of limb and life; it is much more than this. The idea of a right to life under Article 21 of the Constitution was highlighted in this case which incorporates the right to live with human dignity. An act of rape not just violate the one’s right of the physical body, the person’s autonomy over the body but also her dignity, mental stability. It is a crime against basic human rights.

In the judgment of Independent Thought v. Union of India and Anr.[3]Supreme Court of India passed a judgment regarding marital rape and has criminalized sexual intercourse with the minor wife aged between 15 to 18 years but has refrained for making any statement regarding marital rape of women who is above 18 years of age. However, this judgment came only for a particular age group and not for the victims as a whole.

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In the Chairman, Railway Board v. Chandrima Das, the apex Court has observed that rape is not merely an offence under the Indian Penal Code, but is a crime against the society as a whole.

In the case of Bodhisattwa Gautam v. Subhra Chakraborty[4], the Supreme court held that rape is a crime against basic human rights and a violation of the victim’s right to life provided in Article 21. The marital exception principle in a sexual offence is violative of a spouse’s entitlement to live with human dignity. Any law which damages la woman’s entitlement to live with dignity and gives spouse appropriate rights to have sexual intercourse without her will is along these lines unlawful.

Indian Constitution does not mention the Right to privacy expressly. Nevertheless, in a series of cases like Kharak Singh v. the State of U.P., Govind v. State of Madhya Pradesh, Neera Mathur v. LIC etc, the Supreme Court has perceived that a right to privacy is intrinsically ensured under the extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated.

In the case of State of Maharashtra v. Madhukar Narayan Mandikar[5], the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished. It was decided that everyone has the right to privacy over one’s body. In the preferred case, it was chosen that a prostitute has the right to deny sex on the off chance that she was unwilling.

In the landmark case of Vishakha v. State of Rajasthan, the apex court extended the view of privacy in working environments also. Further, along a similar line, we can translate that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently, by decriminalizing rape inside a marriage, the marital exception teaching damages this right of privacy of a wedded lady and is consequently is illegal.

Saretha v. T. Venkata Subbaih[6]the court held that “There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person” The right to privacy is not lost by marital association.

In the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat[7], Justice J.B. Pardiwala showed utter dismay to the limitations of the penal law. He was of the view that the absolute statutory abolition of the marital rape is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and the act of marital rape is just a violent act against a woman and not a husband’s privilege, such act must be criminalized. He advocated for equal rights to women irrespective of their marital status and observed that the only way to remove the destructive attitudes that promote marital rape is to criminalize it.

In the case of Queen-Empress v. Haree Mythee[8], it was held that the wife over the age is of 15, and then the rape law does not apply in that situation. In this case, the husband was punished because the wife was of 11 years only.

In the Kerala High Court, Sree Kumar v. Pearly Karun, it was observed that the wife does not live separately with the husband under the Judicial separation and being subject to sexual intercourse without her will the act does not amount to rape. Hence, it was said that the husband was not found to be guilty of raping his wife though he was de facto guilty of doing or committing the act. 

In the case of Sakshi v. Union of India[9]it was argued by the NGO that where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that the accused is the husband of the victim is not excusable under any circumstance recognized by law. Therefore, there is no reason why a concession should be made in the matter of an offence of rape/sexual assault only because the wife happens to be above any particular age.

 

CONLUSION AND SUGGESTIONS  

Today, we are living in the 21st century, but still those traditional accepted beliefs and norms and harsh patriarchal mentality present in society. Such Narrow mindset of society needs to be changed with the time to prevent the domination of patriarchy.

Marital rape is the worst types of sexual violence occurring within the family of women by her own husband. The women victims do not come forward with their sufferings most of the times due to the nature of the activity, economic dependency, the patriarchal mindset of society and the associated issues of privacy of relationships.

The law does not even recognize marital rape as an offence leave aside plightful misery of the abused wives without providing any penalties in such cases. strict laws are required for marital rape in India to protect the rights of a married woman providing her legal remedy so that she can file a suit against her husband for such a heinous crime.

Only because a woman is married it does not mean that she lost her dignity and chastity. She is not the property of her husband. The loophole in the law that a woman can protect her Right to life and personal liberty but not her own body while in the marriage should be taken into consideration as it is violative of our constitutional rights.

The exception clause of the IPC should be removed, and the punishment for Rape under section 376 of the IPC should include marital rape as well. There should be judicial stimulation as well. The society is transforming and is empowering the women by providing them with equal stand around the globe. So, it is required that one must stop seeing people through various filters of gender, race, caste etc, and treat every human being equally, who has basic human rights.

With increasing literacy rate and ease of access to connect to the world, women have slowly started to know about their rights and the violation of the same. It is also very important that a rape survivor is treated very gently and carefully by the authorities like police and medical while interacting with them. This is the time when whole India should stand on a common consensus that stands like women empowerment and gender equality cannot be a success in their results without criminalizing marital rape.

when the Legislature and the Judiciary need to join hands and take a step towards making this inaccessible part of the justice available to those victimized ladies who never have got any chance to speak for themselves against a kind of crime which is sufficient to leave a mark on their soul for a lifetime.

 

REFERENCES

 

[1] R v. R [1991] 4 All ER 481

[2] (1981) 1 SCC 608

[3] AIR 2017 SC 4904

[4] (1996) 1 SCC 490

[5] AIR 1991 SC 207

[6] AIR 1983 AP 356

[7] 2018 SCC Guj,732

[8] (1890) 18 Cal 49

[9] AIR 2004 SC 3566

 

Author: RISHABH MANCHANDA,
Delhi Metropolitan Education affiliated to GGSIPU/ 2nd Year/ Law Student

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