Marriage, historically, has been considered as a sacrament in India, it is considered by the Indian society that the consent of having sexual intercourse with a spouse is given when the marriage is concluded. Though, historically, having a sexual intercourse was considered as a right of the spouse but in modern times if it is without the consent of the spouse then it is recognized in the society as a crime outside India while in India this crime is still not recognized either by the society or by the legislation and thus, It is a matter of concern. for general disappointment, the Central government has given its approach against criminalization of marital rape, saying that doing so will ‘destabilize the institution of marriage’. The rape is criminalized in India, but judiciary does not criminalize marital rape as it has been mentioned as an exception to the definition of rape. In our Indian society where there are laws that protect the women from various crimes, but no laws have been enacted for protection of married women. In this article, will be providing the solutions regarding issues in removing the exception given under Section 375 of Indian Penal Code, 1860 by providing new provision which criminalize marital rape, so that the percentage of marital rape can be decreased.
Rape is the most accursed offence committed on a woman and violates the fundamental rights of a woman. Marital rape is also one of them. When the women are mentally and physically tortured by her husband and the husband does sexual intercourse with his wife without taking consent of his wife or threat her and does forcefully sex with his wife and the wife being tortured or hurt through the act done by her husband is termed as marital rape. After being tortured by her husband, women feel helpless and this incident leaves an unforgettable impression on married women.
In India, women are free from the crimes which are committed in the roads and streets, but the women are not safe in their homes and this is not noticed by anyone. The marital rape is one of the heinous crimes in India but still it is not criminalized as second exception given in Indian Penal Code, 1860. There is a need to consider marital rape as crime so that all the women can enjoy their fundamental rights.
Indiana University Press, 1990 had reported that among seven married women, one has been definitely raped by her husband without her consent. According to United Nation Population Fund, among all the married women in India, two -thirds of them whose age is between 18-50 years is tortured by their husband and their husband does forceful sex with them in order to either get dowry from them or to fulfil their sexual perversion.
With this, four major justifications are recognised because of which the marital rape is not criminalized. The first two justifications are not used in present day because nowadays, there is advancement in gender equality, i.e., men and women. The married women have no right to say anything to her husband because she is married and marriage is considered as sacrament and a civil contract because of which women has to agree with her husband for everything whether it is forceful sex or not. The law says that husband and wife have their private sphere and the law will not interfere in their marital relationship and these justifications are wholly unconstitutional for society and there should be criminalization of marital rape in India.
MARITAL RAPE IN INDIA
The word “Rape” means “to seize” which is taken from the Latin term “Rapio”. Rape means sexual harassment of a woman against her will or without her consent or with her consent which has been taken by force, fraud, threat or coercion. Section 375 of Indian Penal Code, 1860 talks about rape which is a criminal offence. The person who commits rape is punished under Section 376 of Indian Penal Code, 1860 for imprisonment which should not be less than 7 years and can either extend up to term of 10 years or for life imprisonment and shall also be liable to give fine or both. The Penal Act protect the women from heinous crime such as rape but it fails to protect the married women from marital rape who are sexually and mentally harassed by their own husband and the wife should not be under eighteen years. The husband cannot be guilty of a rape committed by himself upon his lawful wife because the marriage in India is a sacrament and the husband has the right over his wife that’s why the law says that we cannot interfere in the sphere of marital relationship of husband and wife. Thus, the marital rape is not criminalized in India.
The study shows that in Uttar Pradesh the percentage of marital rape victims are 49%, in Rajasthan 26.8%, in Manipur 55%. It also shows the percentage of victims who actually file complaints against the wrong in Manipur 8%, Bihar 7.1%, Orissa 5.8% while in Karnataka 5%. There was a study conducted where the opinion of the husbands was asked on marital rape. The percentage of men who stated that women can be forced for sexual inter was in Andhra Pradesh 24%, in Telangana 22%, in Mizoram 16%, in Tripura 14%, in Jammu and Kashmir 13% while in Tamil Nadu 11%. This showed the backward mindset of men in society and the image of the women is no more than a property. There was a study where men stated that if wives do not indulge in sexual intercourse then they have a right to not financially support them. This percentage was in Telangana 24%, in Andhra Pradesh 23%, in Jammu and Kashmir 15%, in Tripura 14% while in Mizoram and West Bengal 12%.
CAUSES AND EFFECTS OF MARITAL RAPE
The main cause may be alcohol and drugs which force the men to do sexual intercourse forcefully with their wives. Some women are unemployed and dependent upon their husbands for their living because of which they are unable to resist their husbands to do such dreadful acts. Women are at higher risk when they are raped by their husbands.
Sometimes the victims are in large depression because they think that their husbands broke their trust and dealt with them like animals. Even after such an incident she cannot trust herself to decide which people are safe and which are not for them. After a woman is raped, some of them are not even supported by their family and friends and it seems a great difficulty in their lives.
VALIDITY OF MARITAL RAPE IN OTHER COUNTRIES
In more than fifty countries marital rape is criminalized. In many countries, the marital rape laws are ambiguous, and they are not clear that the person can be prosecuted for a marital rape or not.
In 2006, United Nation Secretary General analysed that marital rape is not criminalized in many countries. In 18th century, marital rape exception was not valid there but in 20th century the marital rape was also treated as rape. Thus, the United States also became one of the fifty countries.
In England, the marital rape is also recognized as a crime and the offenders get punished and the marital rape exception is declared void there.
Recently in South Korea, the Supreme Court has declared the marital rape exception is void and it is also recognized as rape. Thus, in all these countries the marital rape exception is declared void. Similarly, in India, marital rape exception should be declared unconstitutional so that every woman can be able to enjoy their fundamental rights.
MARITAL RAPE–AN EXCEPTION TO RAPE
The exception given under Section 375 of Indian Penal Code, 1860 states that the “sexual intercourse done by the husband to his wife, if the wife is not underage of eighteen years, does not amount to rape”. According to this particular Section, it is considered that the husband has the right to have sexual intercourse with his wife, whether she is willing or not, it is the duty of the wife to surrender herself according to her husband’s need.
But if the husband does sexual intercourse with his wife and their marriage is void because he has another wife. When she comes to know about the fact of first marriage then the sexual intercourse between them amounts to rape, it is not considered as marital rape and the person shall be punished under Section 376 of Indian Penal Code, 1860. If the husband does sexual intercourse with his wife during separation as mentioned in Section 375(b) of Indian Penal Code, 1860, it also amounts to rape and the husband shall be punished for the same with imprisonment which shall not be less than two years but may extend to seven years and shall also be liable to pay fine or both.
Independent Thought v. Union of India, AIR 2017 S.C. 4904.
The judges in this case gave judgment that sexual intercourse of a man with his wife under the age of 18 years will be considered as rape.
The Hon’ble Supreme Court took into consideration Article 15(3) and 21 of the Constitution and held that an interpretation of these provisions must be there when deciding the best interest of the girl child. The judgment has strengthened up the concept of reproductive choice and bodily integrity of the girl child. Similarly, Juvenile Justice Act protects the children under the age of 18 years and Prohibition of Child Marriage Act states the minimum age of marriage as 18 years. The Supreme Court applied all these provisions and held that sexual intercourse by a man with his own wife who is below the age of 18 years is rape. However, the judgment does not mention anything about the non-consensual sexual intercourse of a man with his own wife who is above the age of 18 years.
RIT FOUNDATION V. UNION OF INDIA
All India Democratic Women’s Association and a marital rape victim Khushboo Saifi and other individuals who want deletion of exemption 2 to Section 375 of Indian Penal Code had filed a petition in Delhi High Court which was later on joined by the RIT Foundation as the judgment of Independent Thought does not give the same protection to the married women as it gives to the unmarried women.
The removal of exemption was also recommended by the Justice J.S. Verma Committee Report on “Amendments to Criminal Law”. But the Government pointed that it would affect the institution of marriage as the marriage in India is a sacrament and not a contract and the matter of marriage is a private matter.
The court after hearing the views stated that marital rape has already been criminalized under Section 498(A) of the Indian Penal Code and there is no need to make law.
ROLE OF JUDICIARY IN MARITAL RAPE
There was need felt for some recommendations regarding sexual assault. The Domestic Violence Act, 2005 was laid down in order to provide remedies to the victims of rape, cruelty but the marital rape issue was again ignored by legislature.
The first report to deal with the issue of marital rape was 42nd Law Commission Report. The object of this commission was to make the marital rape criminalized. But does not appear correct to all and everybody said that the consent of the wife is presumed while the husband does sexual intercourse.
The Criminal Amendment bill was passed in 2012, in which it was recommended to convert the term rape with sexual assault, but it did not contain any provision regarding to criminalization of marital rape. The suggestions of the Verma Committee were not taken into consideration and in 2012, this amendment was review in order to get the public consultation and it was suggested to delete the marital rape exception and it should be criminalized but this recommendation was rejected by Standing Report Committee.
Recently, in 2015, this argument was repeated by Ministry of Home Affairs and a bill passed by the members of Parliament which suggested to criminalize the marital rape.
In 2016, the Law Commission passed the bill but there was no question arises to criminalize the marital rape, since the Parliamentary Standing Committee has decided against it.
In July 2017, a writ petition filed by All India Democratic Women’s Education in Delhi High Court challenging that the marital rape exception is not valid and it should be declared unconstitutional but the judgment of the hearing was opposite and left the petitioners without justice.
Recently a private bill, Women’s Sexual, Reproductive and Menstrual Rights, 2018 was passed by Congress member Dr Shashi Tharoor and it is introduced in the Lok Sabha to criminalize marital rape. The bill recommends to delete the marital exception clause of Section375 of Indian Penal Code, 1860.
VIOLATION OF FUNDAMENTAL RIGHTS DUE TO DECRIMINALIZATION OF MARITAL RAPE
It is considered that marriage of husband and wife is sacred and there should not be interference of anybody that’s why the law also recommends not to interfere in the private sphere of relationship.
The marital rape is not recognized as an offence and because of this there is violation of fundamental rights of women as Article 14 and Article 21. Even though the marital rape is not an offence but when any women are tortured then the legislature should take some step towards the same and should provide remedy to the victims so that every woman can enjoy their fundamental rights.
Article 14 is violated in this way that the victims of rape get remedy and the offenders get punished while there is no punishment given to the offenders of marital rape. Thus, there is inequality.
Article 21 is violated in this way that the victims of marital rape could not enjoy their right to life and free liberty. Therefore, there is discrimination among married and unmarried women.
Thus, by removing these kinds of discrimination every woman will be able to enjoy their fundamental rights.
REASONS FOR CRIMINALISATION OF MARITAL RAPE
There are certain arguments due to which marital rape should be criminalised. The first argument, Marital rape is that in which husband does forceful sex with his wife to fulfil his perversive need of sex and If the women deny doing the same, the husband gives injuries to her. Due to marital rape exception women are unable to fulfil their wishes and could not be able to participate in the activities of the society because of their husband’s fear. The women have also given fundamental rights to live their lives happily but because of marital rape cannot do so.
The second argument is that the legislature says that husband and wife have their private sphere so law cannot interfere in their privacy. But this is the drawback for the women because they are unable to enjoy their fundamental rights. Therefore, the marital rape exception should be criminalized.
The third argument is that husband misuse this law because they know that there is no punishment established by law regarding to marital rape without the consent of wife. So, in order to prevent these evil crimes, the legislature should criminalize marital rape and give justice to all women so that they can enjoy their fundamental rights.
Now, would like to suggest that everybody have to develop themselves and if the society will be developed, there will be development of citizens thinking and if thinking is developed of every human being, they will not do such kinds of heinous crime like marital rape. Women must be given equal rights in the society in order to develop their self- determination because it is the high time that India should get rid from the problem of marital rape. The present laws should be amended and new laws which are the requirement of our society should be adopted. The victims of the marital rape should get empathy rather than sympathy. The legislature should take a necessary step in order to criminalize marital rape. The society must support the victims so that they can raise their voice in order to seek justice and can enjoy their fundamental rights.
The Court must change the provision as a person who without the consent of the other spouse gets into a forceful sexual act will be punished. Normal sexual intercourse where the wife has not suffered any injury will not amount to marital rape. Mere sexual intercourse shall not amount to marital rape until the factor of consent is absent or the same is proven. A provision must be made that the wife can give it as ground for divorce, maintenance and custodial right of children. With these provisions the percentage of marital rape victim will decrease. There is no chance of filing a case with malicious intention.
It has been concluded that the Indian law fails to provide protection to married women. The law does not provide remedy to the victims of marital rape because in India marital rape is not an offence and it is a drawback for the society. If the husband does forceful sex with his wife, she cannot bring an action against that particular crime done by her husband because our penal law doesn’t allow doing so because of which women’s fundamental rights are getting infringed. There are some lacunas in legal system such as the marital rape is not criminalized and due to which Article 14 and Article 21 of women are violated.
As it is given that the law which violates the basic structures and ideas given in Indian Constitution should be declared unconstitutional. Thus, the exception clause of marital rape should be declared unconstitutional because it violates Article 14 and Article 21 of Indian Constitution, 1949 and right to equality and opportunity must be given to all so that they can develop their self-determination and women must have given equal education as men so that they are financially strong and are not dependant on their husbands.