ABSTRACT
Marital Rape is a dishonourable offence that has marked a negative stance in the institution of marriage. Thousands of women face this problem even today as many of the countries has not yet criminalised this act. Under Section 375 of Indian Penal Code (IPC), makes Martial rape as an exception from the definition of rape. Our society is patriarchal in nature. So, men are always in a dominating position and tends to influence their rights on women without any independent consent from his partner. As a result of this fact earlier marital rape after marriage was not considered to be a crime. This research paper solely states the fact of criminalisation of marital rape and why is essentially needed to be implemented for the protection of women and the effects of marital rape and how it is against the principle of equality under article 14 of the Constitution of India.
KEYWORDS
marital rape, equality, patriarchal, marriage, consent
INTRODUCTION
Marital rape refers to an act of sexual intercourse between two spouses without the consent or willingness of one. The absence of free consent for sexual intercourse of any one spouse is an essential element and need not any physical violence. Earlier sexual intercourse without consent after marriage was considered to be a right of spouses. But now the world has been quite aware of the fact that without consent it is classified as rape by many countries and has been criminalised. So now marital rape has been considered to be a form of sexual abuse or domestic violence. The fact of sexual abuse and domestic violence against women within marriage and even family unit has grabbed international attention from the late 20th century.[1]
Earlier women were considered to be slaves of men and were discriminated from most of their rights. The woman was not given equal status in the society as men. Even the women at that time thought themselves to be degraded then men and hence thought being sexually available to their husband as a necessity and duty. Our society from the beginning has been rating woman as to just satisfy their husband so that they do not get into any illicit relationship with other woman. If such things happen the society is always there to criticize the wife for not been able to satisfy her husband and take care of mere physical need but an equal partner in an institution of marriage.[2]
With reference to offences of marital rape in India the perpetrator is always the man, and the sufferer is the women, this is due to the long-standing patriarchal outlook in the society, wherein the women are an object for sexual pleasure and not a partner in marriage. And, therefore consent has lost its meaning and is obliviated as an element for garnering sexual favours post marital relations, and co-habitation as a mere right.
RESEARCH METHODOLOGY
This instant paper is descriptive in nature delving upon legal and the societal hurdles that the stance of criminalisation marital rape encounters in India. The data obtained to conducted the present paper is obtained primarily from secondary sources of data, hence the approach is non empirical in nature. The secondary sources of information are primarily derived articles, legal journals, law reports and judicial pronouncements. And the mode of citation used for the instant paper will be Bluebook 20th edition uniformly throughout the paper.
LITERATURE REVIEW
- Criminalisation of Marital Rape in India: Understanding its Constitutional, Cultural and Legal Impact, Raveena Rao and Pradyumna Soni (2018): The authors through this paper have put forth the Indian legal prospect of marital rape and have put forth the urgent need to criminalise this cloaked cruelty on women in India, under the garb of marital privacy and marital obligation. The authors have categorically analysed the constitutional need of dignity and independent consent. And have proposed a model for the same, with amendments to criminalise the same. However there lies one major lacuna as to the validity of institution of marriage and how will it affect the man in this arrangement from the dangers of frivolous allegations of marital rape, and the tools to prove such an offence.
- The Gap in Marital Rape Law in India: Advocating for Criminalization and Social Change, Krina Patel (2019): The Author has tried to explore the lacunae in present Indian Penal Code. By dividing the discussion in three major parts firstly dealing with marital rape as an offence and disasters of the exception clause, followed by the evolution and background study of rape legislations over the years, and finally the arguments offered for and against the criminalization of marital rape laws. Herein the author has provided a descriptive overview of the offence with no suggestion and or subsequent hurdle that the removal of this exception might face, since the author has only described the cruelty inflicted on women but not outcome of removal of the clause.
- The Sex Right: A legal history of Marital Rape Exemption, Rebecca M. Ryan (1995): The author traces the patriarchal theories justifying marital rape exemption starting from the 17th century, till the 20th century world. And how the radical feminist rhetoric about sexuality and marriage is left exposed underneath. The author has also argued for legal privilege to both the spouses and not only to the man. Since equality will only be a symbolic representation when the women in the marriage will have no say when interfered with their physical dignity in marriage.
LEGAL SCENARIO OF MARITAL RAPE IN INDIA
In many countries including India, the offence of marital rape has not been sufficiently criminalised. Our law did not terminalize forceful sexual intercourse after marriage as rape if the woman is above 15 years of age.[3] It is considered to be a personal issue and not a public affair as it occurs within the walls of a home. Marital rape exists as a state of affairs which is stated as an offence but is not officially sanctioned as a crime. While in other countries either marital rape is criminalized totally or there are such laws which doesn’t differentiate punishments for rape and marital rape.[4] In India if any women who has been a victim of sexual violence wants to file a case against her husband she is not provided with such justice since exception 2 of section 375 of the Indian Penal Code excludes marital rape from being a grievous crime if the woman is above 15 years of age.[5]
Also, the Law Commission of India stated in its 172nd Report have stated that that the issue of marital rape is to be considered but denied to delete the exception 2 to section 375 of IPC because it thought that this decision would lead to extreme interference in marital affairs and may to harm the institution of marriage.[6]
The first interference on the issue of marital rape in Indian was through 42nd Law Commission Report[7] but this particular report restricted itself to mere understanding on the issue with notable opinions on the issue of marital rape in India. The report also made two major suggestions, Firstly the exception under Penal Code will not apply to judicially separated spouses, in those situations as well marriage do subsist, still exception has obliterated without any specific reasoning. And secondly, suggestion was pertaining to the criminalisation of sexual intercourse to a minor girl under the age of 15 years. This suggestion was due to the fact that there was different punishment for a husband to have forceful sex with the wife. This summarises the reluctance on the part of law makers to treat marital rape as a mere misdemeanour upon the wife and not a heinous offence disrespecting the dignity of the women.[8]
According to the Hon’ble Supreme Court in Justice (Retd) KS Puttuswamy v. Union of India[9], have state that constitutional rights get violated in an offence of rape, since it is interfering with the physical integrity and sexual autonomy under Part III of the Indian Constitution.
¶106 “Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions. ‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one’s being in its fullest sense.”
Marital rape is further violation of the principle of equality and right to life under the article 14[10] and 21[11] of the Indian Constitution. Since lack of criminalisation infringes upon the basic fundamental rights of the women in marriage, whose dignity is subservient to her husbands’ sexual desires. It is true that offence of marital rape is within the private sphere of marriage, but the State do have a responsibility to address the cruelty being imposed upon the wife under the garb of dignity and marital obligation, since marital privacy can be no ground of marital rape.
The Delhi High Court[12] is presently hearing a trial for a case against the legitimacy of the Indian Penal Code (IPC) exception 2 of Section 375[13] which is giving exoneration of Marital Rape to men. The main fact is the deletion of Exception 2 of Section 375 of IPC, which says any sexual act performed by a man on his wife without her consent is not rape if the wife is not a minor.
Senior advocate Rajshekhar Rao, who is assisting the court said that there is a probability to misuse this exception in the institution of marriage because wives are not given any power to prosecute their husbands for sexual harassment. He also emphasized that this exception 2 of Section 375 also resist Article 14.i.e. Right to Equality and Article 21.i.e. Right to Life for Women.
So, a bench was created which is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman wanted to exclude the exception granted to husbands. The Central Government in its earlier affidavit filed in the case that men cannot be held as criminals for marital rape as it may harm the institution of marriage. The Delhi Government also told the court that marital rape is already marker to be a “Crime of Cruelty “. The Petitioners have challenged the constitutionality of Marital rape. The Delhi High Court presently has given time to Central Government to decide on the criminalisation of Marital rape because it no longer can be left unheard.[14]
RECOGNITION OF MARITAL RAPE IN FOREIGN JURISPRUDENCE
In this changing time and developing social structures, every nation has strived to put forth human dignity either through statutory amendments or through judicial activism and recognized the non-consensual sexual intercourse as a rape, despite being the same between a husband and wife.
In England, it was earlier a rule that no man could not be accused of marital rape for the wife because it was thought to be a part of contract of marriage. But in 1991, the marital rape exemption was abolished. The House of Lords held in R.v. R[15] that the husband could not be held liable for forceful sexual intercourse with his wife. But now it is considered as anachronistic and offensive to go against her will and hence it is no longer been applied.
In USA, it has been found by researchers that almost 10 to 14 % of married women are victims of rape after marriage. And it was found that marital rape accounted for approximately 25% of all rapes. The general rule there was that no husband could be accused for marital rape as he is entitled to have sexual intercourse with his wife which is lawful under the contract of marriage. In a shocking news that took the world media by surprise was that of Mandy Boardman, a business woman who was raped by her husband by lacing her with drugs for over a three-year period, despite these disturbing circumstances the husband was given a mere home detention, raising a concerning view on the role of law in matters of marital rape.[16]
In New Zealand, a person aging between 17 to 20 years can marry with parental content. And the legal age of sexual consent for women is 16 years. Marital Rape has been explicitly criminalized in 1985. The penalty is of imprisonment for maximum of 20 years. In Australia, marital rape has been explicitly criminalised in 1981 which first began with New South Wales and then followed by all other states from 1985 to 1992.[17]
PREVALENT CATEGORIES AND EFFECTS OF MARITAL RAPE IN INDIA
Long term psychological effects on women like sleeping disorder, eating disorder, depression, excess stressing out, intimacy problem and sexual disfunction.Short term psychological effects like anxiety issue, intense fear, suicidal tendency, post-traumatic stress disorder and many more. Also, women suffer from heavy physical injury due to marital rape such as vaginal injuries, soreness, laceration, fatigue and excess vomiting etc. Women who are brutally raped and battered frequently suffer from black eyes, torn muscles, bloody nose, vaginal inflation etc.The victimised women also suffer from gynaecological effects like vaginal stretching, unwanted pregnancies, miscarriages, HIV, AIDS and even leads to infertility.[18]
Following are the general categories of marital rape in India:
- Non – physical sexual coercion – In this form of rape, the man doesn’t physically force the woman to indulge in sexual intercourse but pressurizes her in the form of coercion or threats so that she is forced to do so.
- Threatened or forced sex – In this form of rape, the husband physically forces the wife to indulge in sexual intercourse with dire consequences and threats.
- Battering Rape – This form of rape is specifically conducted out of antagonism, revenge, and humiliation against women. There are many such cases where women after marriage experiences verbal abuse and physical abuse.
- Obsessive Rape – Though these cases are least common to be heard, they are most dangerous in nature. In this form men compel their wives with unusual sexual activities like bondage, bodily pain and mental torture to their wives.
SUGGESTION
We are now well aware of the need for criminalisation of Marital Rape for women welfare, so here are few suggestions regarding the following.
- Exception (2) in section 375 should be removed and punishments should be implemented for the accused if proved guilty.
- Heavy fine and long-term imprisonment should be amended as punishment to make people aware of committing such as a heinous crime further.
- In such case of rape after marriage should not be considered as not wrong just as a matter of the institution of marriage.
- These cases should be looked after at a short time and should be provided justice as soon as possible without any delay.
CONCLUSION
In light of aforesaid discussion, we can suitably conclude that Marital Rape is not criminalised in India but it is considered as a disgraceful crime against women and needs attention of the government urgently. The major fact is women who are raped by their own husbands are prone to immense insecurities, multiple assaults, long term physical and mental sufferings. Women become more disturbed because even after suffering such regular harassment they have to live with their assailant. As the effects of marital rape are highly violent, this needs to be criminalised urgently. Though now our society is getting aware of women importance and taking better steps to give them their proper rights, but yet much amendments are needed. There are also loopholes in marriage for women safety so they are needed to be urgently amended and implicate them so that women status is upgraded and their positions are validated as men does. Its high time the government both at centre and state level should urgently necessitate the enactment to protect women rights and dignity. The need for marital rape laws is the need of the hour to protect and uphold the dignity of women in India and to sustain the importance of independent consent.
Name – Rittika Paul
College – Jogesh Chandra Chaudhuri Law College
[1] Rebecca M Ryan, ‘The Sex Right: A Legal History of the Marital Rape Exemption’ (1995) 20 Law & Social Inquiry 941 <https://www.jstor.org/stable/828736%0AJSTOR>.
[2] Krina Patel, ‘THE GAP IN MARITAL RAPE LAW IN INDIA : ADVOCATING FOR CRIMINALIZATION AND SOCIAL CHANGE’ (2019) 42 Fordham International Law Journal 1519.
[3] Independent Thought v. Union of India, 2017 SCC Online 1222
[4] Umang Poddar, Explainer: Why is marital rape not a crime in India – and can the courts make it one? Scroll.in (2022), https://scroll.in/article/1015495/explainer-why-is-marital-rape-not-a-crime-in-india-and-can-the-courts-make-it-one (last visited Feb 9, 2022).
[5] Indian Penal Code, 1860, §375
[6] Law Commission of India, 172nd Law Commission Report, March 25th 2000.
[7] Law Commission of India, Penal Code, 1860, Report No. 42 (June 1971), available at http://lawcommissionofindia.nic.in/1-50/report42.pdf (last visited on December 15, 2017).
[8] Id;
[9] Justice (Retd) KS Puttuswamy v. Union of India, (2017) 10 SCC 1
[10] INDIA CONST. art. 14
[11] INDIA CONST. art. 21
[12] RIT Foundation v. Union of India writ petition (C) no. 284 of 2015
[13] Supra note 5;
[14] Sharma Ajita, ‘Making Marital Rape a Crime Does Not Destroy the Institution of Marriage’ (The Leaflet , 11 April 2019) <https://www.theleaflet.in/making-marital-rape-a-crime-does-not-destroy-the-institution-of-marriage/> accessed 6 February 2022.
[15] R v. R, [1991] UKHL 12
[16] Matt Pearce, No Prison Time for Indiana Man Convicted of Drugging, Raping Wife, L.A. TIMES (May 19, 2014)
[17] R v. L [(1991) 174 CLR 379]
[18] Michele Goodwin, ‘Marital Rape: The Long Arch of Sexual Violence Against Women and Girls’ (2016) 109 AJIL Unbound 326 <https://www.jstor.org/stable/10.2307/27003163>.