ABSTRACT
If Marital Rape is an actual thing & being a housewife is a job, then isn’t this harassment at the Workplace?
– By Simar Singh (A poet)
Consent is the first step towards every act & sexual intercourse is just the result. Sexual intercourse is not even the point, but the vital point is whether it is caused in a desired or undesired manner. Both words “Rape” & “Legality” don’t go hand in hand. In past years women share equal value as same as the property of their house & they have been protected just to balance out the reputation of the family that is explained hereinafter in this paper. Rape is a heinous crime. Cases of Marital Rape are raising day by day. So many wives have been victims of Marital Rape for years. So many husbands have been turned into legal rapists from lovers. Women are restricted to discuss this abuse in public. So many FIRs & Complaints were gone unheard. Even after Delhi High Court’s split verdict, this matter get closed & we slightly heard about those types of cases. So by suggesting & concluding about this matter, I can say that getting it legalized, will be really beneficial for women because the law is all about giving proper rights & justice to everyone.
KEYWORDS
Rape, Marital Rape, Legalization, Sexual intercourse, Consent, Sexual Assault, Criminalization
INTRODUCTION
From ancient times, Women are apprehended as the property of their fathers & when it comes to husbands it would be the sexual property of their spouse & if rape is committed by any outsiders then it is believed that someone intentionally destroys the family’s reputation by doing this act. After that in the dynamic society, Rape will be labelled as a severe crime against a woman apart from considering it as a nasty behaviour. The Indian Penal Code, 1860 came into being in India & in that only section 375 & its punishments were mentioned & didn’t say anything about marital rape in an explanatory way. The word Marital (Adj.) originates from a Latin word i.e. Maritalis which means “of or belonging to married people”. It describes the marital status of people. The word Rape comes from the Latin verb Rapere (To seize or take by force). In Latin terms, the act of committing rape is called Raptus. How would you react if I say a person can get a license for illegal sexual intercourse after marriage? Strange Right? But this is what going on from time immemorial, even though we have noticed it, we couldn’t help those victims & stand with them to support them because of its legalization process.
RESEARCH METHODOLOGY
This paper is detailed & expressive in nature. Here the author has used some sort of secondary sources for research on the topic i.e. Research on Marital rape, related case studies & to what extent it is unjustified to be a legalized act. Secondary sources are basically newspapers, Journals, Case laws, Books, Websites etc. The aim of this research paper is not just to explain the known data, but also to find solutions to the same.
REVIEW OF LITERATURE
The definition of Man & Woman is described under section 10 of the Indian Penal Code, 1860 i.e. any human being considering gender as a male & any human being considering gender as a female (of any age).
The definition of Marriage means two persons (Husband & wife) got their marital status as Married.
The definition of Rape is defined under section 375 of the Indian Penal Code, 1860 i.e. described as follows-
Section-375. Rape. — There are actually 6 conditions that should be supported to be understood as an act of committing rape. If a man is keeping sexual intercourse with a woman –
First– Against women’s choice
Second– Without women’s assent or, permission.
Third-without women’s acquiescence, by forcefully putting her or, her close one’s life in danger.
Fourth-With her assent,when the woman believes in a bona fide manner that she is married to a man who is her husband legally; & with the wrong intention that man knows he is not her husband.
Fifth- With her assent,when thewoman is in the mode of unsoundness of mind & in intoxication or, administered alcohol by the man intentionally: where she is unable to understand the situation she is going through.
Sixth– With or, without women’s assent, when she has not attended the age of majority.
Seventh– when she finds herself helpless during sexual intercourse performed by a man.
There are two exceptions present for Section 375 i.e.-
Exception- 1: If any act, conduct or behaviour done by medical officers is the general activity or duty for them to perform.
Exception- 2: Sex performed by a husband with his wife, whose age is above fifteen years, is not recognised as rape.
The definition of Consent is that a person is capable of understanding an act or knowing all the facts agreeing upon the conditions and doing the same. Basically, it means ‘The mating mind’.
Marital rape
Marital Rape means sexual intercourse performed by a husband with his wife forcibly or without her consent. We can describe it as Rape 2.0, which is an updated version of rape without facing any punishments.
History
Sir Matthew Hale wrote a treatise namely The History of the Pleas of the Crown in the year 1736, in that treatise he mentioned that “If a husband is committing a crime by raping her wife then he can’t be considered as a rapist because it is believed that wife has given her all consent just by marriage to which she can’t deny after.” In 1900 BCE, when a person committed sexual intercourse with anyone’s wife or daughter by believing that the wife or daughter is the property of any male member of the family, then the death penalty was awarded to that person. In several countries, rape was recognised as a “Property Crime.” So that was the value of a woman continuing till now. For that reason, it is believed that a husband can’t rape her wife and can do whatever he wants. Not only in the ancient period but also in the ’70-‘80s century when British Empire was established, the introduction of rape law was in force. They believed that losing virginity after rape is equal to losing sexual purity in the body. However, the number of rape cases were raised after that & responsibility was given to the father & husband to protect their daughters & wives. The “Doctrine of Coverture” means the existence of a wife is adhered to the name of her husband which again explains her existence as worthless. Then a new change was needed for the betterment of society & for women so Indian Penal Code, 1860 got drafted & it made the offence of rape as an official crime & this added all kinds of rapes including gang rape, date Rape, campus rape etc. but it hadn’t recognised Marital Rape.
The religious point of view on marital rape
According to Hinduism: [1]
In Vishnu Puran, it has been mentioned that a husband can’t proceed with her wife if she has not given her consent for consummation. A husband shouldn’t proceed with sex with her own wife if she is unwilling to perform that.
According to Islam: [2]
Glorious Quran says that Allah, for every single person, created another person as their spouse & they both should live with peace, respect, love & tranquillity. No one should do any harm to their spouse by their conduct and not even orally (through words).
According to Bible: [3]
Bible says that submission should be mutual when it comes to consummation. Both husband & wife should respect each other in a relationship as it is a bond of love and purity.
Types of marital rape [4]
There are 3 kinds of Marital Rape which are generally recognised in society. These are as follows-
- Battering Rape: In this Rape, the abusive act done by a husband on her wife affects her very deeply. Here sexual & physical violence both are committed by a husband that causes so much injury to the wife. She is raped by her husband and has to bear with the torture system as well.
- Force-only Rape: As the name suggests here Rape is committed in a forcible manner by a husband. He forced her wife to have sexual intercourse with him.
- Obsessive Rape: Here the Man got obsessed with committing the rape of her wife which includes cruelty, which is heinous in nature.
Domestic violence act, 2005
In this Act, it is mentioned that only civil remedies that is compensation can be awarded to the victim & any criminal procedure can’t be executed against the offender.
Data analysis
According to NCRB (National Crime Records Bureau) 70% of women are facing Domestic Violence & Marital rape is part of domestic violence but that is decriminalised manner. According to WBD (World Bank Data), more than 100 countries have criminalised Marital Rape, but India is coming under those 36 countries that decriminalised Marital Rape.
Data collected from NFHS- 5 [5]
A survey was conducted by National Family Health (NFHS-5) in the year 2015-2016, where data shows that nearly 33% of women suffered from Marital Rape or Spouse Violence. Then in the year 2019- 2021, it statistically shows that 32% of women suffered from Marital Rape along with Violence, 27% of women suffered from one form of violence within one year, 29% & 14% of women suffered from violence which is physical and emotional in nature.
Difference between rape & marital rape
- Rape is defined under section 375 & its punishment is defined under section 376 of the Indian Penal Code, 1860, whereas Marital Rape is not defined anywhere in IPC, 1860.
- In the case of Rape, a person who got raped can be a married or unmarried person, whereas in Marital Rape a raped person must be a married person.
- The act of Rape is criminalized in India, whereas the act of Marital Rape is not an offence in India that describes about its legalisation process.
- Rape can be committed by any person of any age, whereas Marital Rape can be committed only by spouses.
- Rape can be committed by an individual or by a group which is called gang rape, whereas Marital Rape can only be committed by a husband.
- In the case of Rape, the consent of a person matters, whereas in Marital Rape consent of a spouse doesn’t matter at all.
Split verdict of Delhi high court [6]
Until 2015, several cases related to Marital Rape were brought before the Court & in the same year a petition was filed for the legalisation of Marital Rape matter.
On 11-01-2016 High Court gave notice to the Centre & waits for the validation on the case of Marital Rape.
On 29-06-2017 Centre opposed the Public Interest Litigation & gave its view that it will dissolve the main purpose of the institution of marriage.
In the year of 2017, The Supreme Court of India heard some cases regarding Marital Rape. Those are as follows-
Independent Thought v. Union of India on 11 October 2017 [7]
Fact: In this case, A wife aged above 15 (probably 16) was raped by her husband & Court didn’t take any action towards the rapist’s husband as the age mentioned in section 375(2) is below 15 years of women when they get raped to be considered as an offence otherwise it is not. Opposing this, people filed a writ petition in Supreme Court for further clearance of this matter because it infringed on the fundamental right of a woman.
Judgement: The Supreme Court held that section 375(2) is unconstitutional & make some changes in laws upgrading the age from 15 years to 18 years & specifically mentioned that If a wife got raped her husband not attaining the age of majority would come under the offence of Rape.
RIT Foundation v. The Union of India on 14 January 2022 [8]
Fact: In this case, a woman below the age of majority was raped by her husband & the counsel argued that it infringed her fundamental rights mentioned in the constitution i.e. Right to equality and equal opportunity, Right not to discrimination, Right to freedom of speech and expression and lastly Right to life & personal liberty.
Judgement: Here The Supreme Court said about the unconstitutionality of section 375(2) & gave a surety in the age of the woman that will come under this section i.e. women below the age of 18 years & that will consider as Rape.
Then in the month of August 2017 Court held that if criminalisation happens then it will affect the idea of the institution of marriage.
On 07-01-2022, the Delhi High Court started hearing all matters.
On 11-05-2022, a split verdict took place on this matter where one Judge agrees on the matter which goes in favour of women who were facing Marital Rape including their rights over their body & another Judge totally dissented on him.
Other related case laws of marital rape
Sakshi v. Union of India, 2004 [9]
Fact: Due to raising cases of sexual violence against women both married and unmarried ones, an organisation files a petition for recovery of damages that has been happening to women all over India. So a writ petition under article 32 of the Constitution was filed by Sakshi (an organisation) where that organisation stated that if a person committed any sexual violence against women, it will be considered as an offence of rape, then why not the same rules apply to a husband?
Judgement: In this case, Supreme Court uphold the definition of Rape mentioned under section 375 of IPC,1860 & said that IPC doesn’t explain these kinds of conduct as rape and Marital rape holds no place here in Penal Code.
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 [10]
Fact: On the date of 20-05-2014, marriage was solemnized between Nikita and her husband. For about six months they were living a happy married life but after that, her husband’s behaviour changed towards her & he started abusing her sexually & she also got raped by him. After that, he filed a case against her husband calling out for relief.
Judgement: Justice JB Pardiwala said that, a woman’s body is not an object or thing to which a husband can use it whenever he wants; treating it like his own property & we should not give privilege to any husband for conducting such type of heinous crime.
Shri Bodhisattwa Gautam v. Subhra Chakraborty [11]
Judgement: It was a landmark judgement which was passed by the Supreme Court that protects the dignity of women by awarding compensation. Judges further said that Exception 2 of section 375 is unlawful and a law that discriminates between a husband and wife & puts the wife’s consent into less value that indirectly infringes her fundamental rights that have been specially described under articles 14, 19(a) & 21 of the Constitution.
Note: At first the age was 10 years for exception 2 of section 375 then it raises to 15 & next to 18 years of age. When the Nirbhaya Gang Rape case happened at that time Justice Verma’s Committee suggested to criminalise the matter of Marital Rape to which the Standing Committee of Parliament replied if we do this then the Family system of India will be gone into deep stress & Anarchy will be developed in India by this performance, this is the main reason the stereotype was there that rape can only happen by any male human being but not by a husband & that gave them a tag of “Legal Rapist.”
The argument goes for the legalisation of marital rape
- Section 375(2) violates Article 14 of the Constitution. Basically, Article 14 says about the Right to equality & Equal protection of the law but this section discriminates not only on gender basis but also failed to protect women by giving them different rights.
- Section 375(2) violates Article 21 of the Constitution. It says about the Right to life & personal liberty. She has not been given a full right to take her decision about herself or for her own body.
- To a certain age limit i.e. 18 years, criminalisation of Marital Rape occurs & above that age every law decriminalises Marital Rape considering the prospect of consent as a valueless thing.
- It is having a part of cruelty that is mentioned under section 498A, still, it got the legalisation tagline which affects the rights of married women.
The argument goes against the legalisation of marital rape
- As we have studied before, Marital Rape is part of the Cruelty that is defined under section 498A, still it has no punishment because it is legalised in India to abuse a wife & not ask for her consent. The Domestic Violence Act also does not even have any strict punishments for the same.
- If Marital Rape will be criminalised then many laws will also change simultaneously & that requires a lot of hard work to fulfilling its changing system. Not even in IPC but in every law where sexual violence is mentioned specifically.
- It will increase the number of false cases against men. If it got criminalised then some women will take advantage of their husbands without having their fault.
Suggestion
After the Nirbhaya Gang Rape case, so many provisions are added related to the protection of women & some of those are Sections- 354-A, 354-B, 354-C, and 354-D i.e. Sexual harassment, Assault, Voyeurism and Stalking respectively, then why not a step towards the Marital Rape? Sometimes marriage happens without the consent of a woman that reason is generally suppressed by her family members. In other cases, family members gave their daughter to her rapist for marriage just to balance the family’s reputation, which leads to marital Rape in future. Crime has no limits & the same goes for the criminal. Take a hypothetical situation – 19 years unmarried girl was raped by one person and suddenly the charges and punishments would be implemented on the rapist u/s 375 & 376 of IPC, 1860 but simultaneously when a married girl age 19 was raped then all the laws would be disabled for her? By doing this we are not even differentiating individuals of the same gender but also just for different marital status. We are drawing a line between the two & we are valuing married women’s “No” as lesser than unmarried ones. For Marital Rape, my suggestion will be- treat the offence as gender neutral, make certain provisions to stop its misuse, strictly punishment should be awarded to individuals for alleging false Marital Rape case, and make the narco test compulsory in this case & one more rule should there i.e. one strong evidence should be kept with the spouse before filing the FIR.
Conclusion
After everything, so many amendments came in Rape laws to protect the Rights of women. Amendments were taken place in the year 1983, 2002, 2013 & 2018. In The Criminal Law (Amendment) Act, 2013; many amendments were held after the Nirbhaya Gang Rape case, a rule was added that inserting any object or body part into women’s private parts will be regarded as rape. Then The Criminal Law (Amendment) Act, 2018 added took place in punishments to POSCO Act. All these changes or rules, but it is still not dealing with any amendments of Marital Rape so far as the laws are concerned.
AUTHOR:
Sai Ankita Senapati
Capital Law College, BBSR, Odisha
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[2] Fiqh. Islam online, (Last visited Jun. 10, 2023), https://fiqh.islamonline.net/en/islams-stance-on-marital-rape/
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https://www.legalserviceindia.com/legal/article-5571-types-of-marital-rape.html
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[6] Dristiias, (Last visited Jun.8, 2023), https://www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-3
[7] Independent Thought v. Union of India,[2017] 10 SCC 800, AIR 2017 SC 4904
[8] RIT Foundation v. The Union of India, W.P.(C) 284/2015 & CM Nos.54525-26/2018
[9] Sakshi v. Union of India,Writ Petition (CRL.) 33 of 1997
[10] Nimeshbhai Bharatbhai Desai v. State of Gujarat, R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017
[11] Shri Bodhisattwa Gautam v. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
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