“RAPE BEHIND CLOSED DOORS AND MASK OF MARRIAGE: REALITY OF MARITAL RAPE”


“RAPE BEHIND CLOSED DOORS AND MASK OF MARRIAGE:REALITY OF MARITAL RAPE”

Meghna Vij
Christ (Deemed to be University)
Bangalore
ABSTRACT

Marital rape has been broadly bantered in India. India dissimilar to other created countries still can’t seem to condemn marital rape. Activists and Indian media support the supposition that India’s male centric culture makes it important and basic that marital rape ought to be condemned. Then again, an increasingly customary view remains that marital rape can’t be condemned as a result of the hallowed idea of marriage in Hinduism and how condemning marital rape would destabilise the organisation of marriage.



Other than the reasons embraced by the administration, there are various causes that can be credited to the presence of marital rape in India. The essential driver being the situation of the women in Indian culture.
Due to the obsolete guideline that marital rape isn’t effectively perceived as an offence, it is expected by the law that, marriage alludes to the spouse offering to all the “wedding commitments” including sex. Despite the fact that India as a country depends on the hypothesis of value,  it has not perceived the privilege a woman has in controlling marital intercourse as a segment of equity. As the country comes up short on any kind of legitimate arrangements with respect to marital rape, the unfortunate casualties’ just retreat is to go to court. Courts have different techniques to recognise marital assault and have given severe disciplines yet because of the absence of legitimate arrangements, they are bound and henceforth can’t portray “unconsensual intercourse by a man upon his better half” as marital rape. Subsequently, the Judiciary isn’t sufficient and it requires the assistance of the governing body. The laws need to adjust to the changing truth of society.


INTRODUCTION

Marital Rape Refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.
 Section 375 of The Indian Penal Code states A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.[1]
The said section defines rape and also provides for circumstances and exceptions to the commission of the said offence. Exception 2 under Section 375 of the Indian Penal Code, 1860 provides that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape[2]henceforth legalising Marital Rape. The status of the same has changed a little by judicial interference which shall be discussed in the later part of the paper.
Exception 2 under Section 375 of the Indian Penal Code, 1860 has its origin back in the Common Law. India being a British Colony for more than 200 plus years followed the same and still continues to do so. This exception can be traced back to Sir Mathew Hale who served as the Chief Justice in England during late 1600. His statements in the treatise Historia Placitorum Coronae or The History of the Peas of the Crown formed the origin of the exception of marital rape from the definition of rape in various common law countries. He wrote that, “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, whom she cannot retract.[3]
The causes behind a wrongdoing of this sort can also be followed back to the social position given to women in Indian culture. Generally, Indian woman have been viewed as claimed by their fathers and later their spouses. Thus, rape can, to a limited degree, be compared to a wrongdoing against property. This is the reason in the old occasions the punishment against rape additionally included paying compensation to the injured individual’s dad or spouse. Since the spouse is viewed as asset of the husband and a man can’t carry out a wrongdoing against his own property, the topic of marital rape doesn’t emerge by any stretch of the imagination. Henceforth, the way that guys need to build up ownership over a woman after marriage makes a wedded woman progressively vulnerable to being abused by her significant other.
In recent outburst of Radical Feminism, numerous activists and people around the country have started demanding scrapping of the said exception to reduce the number of crimes against woman. The outburst has led to judicial interference, legislative measures in the said area which shall be discussed in the course of the paper.

STATUS IN INDIA WITH REFERENCE TO JUDICIAL DECISIONS

Indeed, even as we celebrate 70 years of Independence, the women in our nation are as yet not genuinely free and autonomous and keep on living under the domain of obscurity and dread. It is in fact a somber reality of India. It is popularly believed that The wife’s job has customarily been comprehended as accommodating, easygoing and that of a homemaker. Sex has been treated as compulsory in a marriage and furthermore forbidden. Atleast the conversation straightforwardly of it, thus, the mindfulness stays grim. Monetary freedom, a fantasy for some Indian ladies despite everything is an unquestionably significant factor for being heard and regarded. With the ladies being taken care of the unpleasant medication of being “acceptable spouses”, to unobtrusively serve and not wash messy cloth in broad daylight, in any event, even counselling remains inaccessible.
Exception 2 to the Section 375 of the Indian Penal Code, 1860 exempts a rape by a man on her wife in Indian context as discussed earlier. However with growing Judicial Activism, various Judicial decisions have been made in this regard which are discussed in this section of the paper.

I.        Bodhisattwa Gautam v. Subhra Chakraborty[4]The Supreme Court in this case held that rape is a crime against the basic human right and violation of the right to life enshrined in Article 21 of the Constitution and provided certain guidelines for awarding compensation to the rape victim. SC underlined about the wrongdoing of rape and asserted the perspective on numerous women’s activists and therapists that rape is less a sexual offence than a demonstration of hostility planned for humiliating and mortifying women. Herein the SC observed that Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth-living. Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are Mother, Daughter, Sister and WifeThey must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.[5]

II.     RTI Foundation v. Union of India[6]In this case the government put forward it’s stance on Criminalisation of Marital Rape. The Government of India had the following stance-

a.       Considering the rampant misuse of Section 498A of the Indian Penal Code1860,  criminalising Marital Rape would increase the chances of harassment of husbands by wives by registering false complaints as a tool for such harassment.

b.      The evidence for proving Marital Rape would be hard to collect considering the fact that their would have been previous sexual relations between the husband and the wife.

c.       The Government was also of the view that the Marital rape shouldn’t merely be criminalised because the same has been done by various other countries owing to the fact that their are numerous differences in such countries and India in terms of mindset of society, population, poverty etc.

d.      It was also believed that criminalising Marital Rape would destabilise the institution of marriage.

III.   Independent Thought v. Union of India[7]In this case, the NGO, Independent Thought challenged the Constitutionality of Exception 2 of Section 375 of The Indian Penal Code, 1860.
This case brought about an amendement in Exception 2 of Section 375 of the Indian Penal Code, 1860 which now reads that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” The Supreme Court amended the age from 15 years to 18 years. The court also laid stress on Right to live with dignity of a girl child by emphasising on Article 21 of the Indian Constitution
[8].
However, unwanted sexual advances made by the husband on his wife who is above 18 years of age continues to be an exception to rape under Section 375 of the Indian Penal Code, 1860.

172ND LAW COMMISSION REPORT AND JUSTICE VERMA COMMISSION REPORT

172nd Law Commission Report[9]

The 172nd Law commission in its report, “Review of Rape Laws” made the following recommendations:

     ‘Rape’ should be replaced by the term sexual assault

     Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.

     Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.

     Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.

     Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.

Justice Verma Commission

The Justice Verma Committee was formed after the Horrific gang rape case of Nirbhaya in Delhi in December 2012. The committee was also made various suggestions with regards to Marital Rape. Accepting the view laid down by the NGO ‘Sakshi’ in the case of Sakshi v. Union of India[10], The Justice Verma Commission Report[11]laid down that the following recommendations:

     In defining rape under Section 375 of the Indian Penal Code, 1860 the exception created for Marital Rape should be removed, hence rendering Marital Rape as punishable.

     The relationship shared between two people should be irrelevant to an inquiry of Consent to any forceful Sexual Act.

     Marriage or any other Intimate relationship shared between two people should not act as a mitigating factor for reducing the sentence and punishment of Rape as prescribed under Section 376 of the Indian Penal Code, 1860[12].

In conclusion the commission was of the view that a marital relationship should not presume consent or take away the sexual autonomy of a wife. However, the above recommendations were not accepted by the Government as the government was of the view that if these recommendations would be accepted it would destabilise
marriages which are considered to be a sacred institution in India.


STATUS OF MARITAL RAPE LAWS IN OTHER COUNTRIES

In 2011, the UN Women report[13]Progress of the World’s Women stated that, “By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal code”


United Stated of America

In the United States of America, Rape i.e., Non consensual Sexual Act between two persons who aren’t spoused has always been illegal. However, it had an exception in form of “spousal rape” herein referred to as Marital Rape until the year 1975. Until 1975, Every state had a marital exemptionthat allowed a husband to rape his wife without fear of legal consequences.

The turning point was seen in the case of People v. Liberta[14]wherein it was held by the Supreme Court that there is no basis of differentiation between marital rape and non marital rape, henceforth criminalising Marital Rape in the United States of America.

However, by the year 1993, all the 50 states in the United States of America had processed laws against marital rape. In some states however, there still exists an exception of “Statutory Rape.”

Statutory Rape occurs when an adult has sex with a minor—someone younger than 18. People younger than 18 are legally incapable of giving consent to having sex. The penalty of marital rape in USA is similar to committing rape out of marriage and henceforth dealt equally. It involves imprisonment without parole but surprisingly, many states also have a different section that deals with marital rape and rape in general and the punishment depends on the circumstances and the situations.


Australia

In 1976, for the first time in the English-speaking world, rape in marriage became a criminal of- fence. Changes were made to the Criminal Law Consolidation Act 1935 of South Australia that made rape within marriage an offence and extended the definition of rape to include penetration of the anus of a man or woman without his or her consent. Current law includes penetration of other parts of the body and covers oral and anal rape. Although, in recent times, the law in relation to rape has changed, many myths and misconceptions are still widely held.

England

Until recently, England followed the common law rule for marital rape as stated by Sir Mathew Hail which provided immunity to the husbands against any forceful sexual act committed by them on their wives in a matrimonial setup. The turning point of Marital Rape law in England was through the judicial decision of R v. R[15]wherein the exception clause of legalising marital rape was held to be void.
CONCLUSION

Marital rape doesn’t simply genuinely influence the women yet additionally subjects her to push, stun, injury and sorrow which can’t be depicted in insignificant words. All the violations against women will in general advance a male commanded society which is because of the man centric culture that we have been living in. Henceforth, because of the commonness of such a general public men get an unjustified edge over the women because of which violations like marital rape are wide spread however unreported.

Since marriage is a sacred and pure institution, nobody addresses the presence of rape in such an establishment. Men feel that it is okay to have unconsensual sex with their spouses in view of the very actuality that they got hitched to one another and because of the lacuna in the marital rape laws, it is exceptionally predominant in a nation like India. Marital rape in itself is a sort of abusive behavior at home. It is a demonstration of strong and fierce control and accordingly, in some cases incorporates physical maltreatment, psychological mistreatment, mental maltreatment, social maltreatment, budgetary maltreatment, profound maltreatment and use of male benefit.

Not only does this provides mental, physical and emotional distress to woman, it is also violative of Right to Equality provided as a basic Fundamental Right under Article 14[16]of the Indian Constitution of Marital woman as it differentiates them from Unmarried woman in terms of an offence of same magnitude and hurt being done on them.

Marriage does not merely survive on sexual relationships and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart form judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect womens human rights, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalisation has to fast alter the letter of law.









[1]S. 375, The Indian Penal Code, Act no. 45 of 1860.
[2]S. 375, The Indian Penal Code, Act no. 45 of 1860.
[3] Hale, History of the Pleas of the Crown 629 (1778).

[4]Bodhisattwa Gautam v. Subhra Chakraborty1996 SCC (1) 490
[5] National Legal Research Desk, http://nlrd.org/resources-womens-rights/rape-laws/latest-judgements-of-supreme-court-high-courts-rape-laws/the-rape-laws-do-not-unfortunately-take-care-of-the-social-aspect-of-the-matter-and-are-inept-in-many-respects.
[6]RTI Foundation v. Union of India; Special Leave Appeal (Civil) No. 23250 of 2008.
[7] Independent Thought v. Union of India; (2017) 10 SCC 800.
[8] Indian Const. Art 21.
[9] Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000).
[10] Sakshi v. Union of India; Writ Petition (Criminal) No. 33 of 1997.
[11] Justice JS Verma Committee, Report of Committee on Amendments in Criminal Law, January 23 (2013).
[12]S. 376, The Indian Penal Code, Act no. 45 of 1860.
[13] UN Women Report, In Pursuit of Justice, pg. 17.
[14] People v. Liberta; 64 N.Y.2d 152 (1984).
[15] R v. R; 1991 U.K.H.L. 12.
[16] Indian Const. Art 14.

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