Open Access Research Article
Marital Rape — Myth, Reality and Need for Criminalization (By-Chaya Gaur & Mr. Shaharyar Khan)
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Article Details
Marital Rape — Myth,
Reality and Need for Criminalization
Author: Chaya Gaur Research Scholar
Manav
Rachna University, Faridabad
Co-Author: Mr. Shaharyar Khan
Associate Professor
Manav Rachna University,Faridabad
Abstract
Marital rape is a social crime that violates the
fundamental rights and dignity of a married
woman. It twists the concept of patriarchy and violates a woman's trust.
Despite this, rape has not been criminalized
in India because
we believe marriages are sacred. But how is violence within a marriage
justified? Does a woman have to give up all rights
to her body when she marries?The statistics paint a worrying picture of the condition of the married
women in our country. We live in a society where marriage is seen as a
license for sexual pleasure, but what happens when sex is non-consensual? Is it legal for a husband
to rape his wife? Is it because the wife is viewed as the husband's object or property? Why are
there different rules for women exposed to sexual violence
inside and outside of marriage?Why does our country forget the atrocities
committed against women after marriage? Today we talk about empowering women in
broad perspectives. But in such a male-dominated society, would women be
strongly empowered to not criminalize spousal rape?
The main objective of this article is to examine the
socio-political and legal paradoxes related to spousal rape, to provide
arguments and reasons that require the criminalization of spousal rape, and
finally to recommend certain norms of
behaviour that are adopted in society can be used to improve the situation of
women in this field.
Keywords:
Marital rape, sexual autonomy, violence against women, human right
Introduction
Marriage is the joining of two hearts, the harmony of two souls, and the joining
of two families.' It is an
eternal commitment made by two people to love and care for each other, to build
trust and understanding, but never to ravish. "A man remains half
as long as he is a bachelor, but after marrying a woman, he becomes complete," Manu
says. So only when a man and a woman marry do they become perfect and complete.
The wife is the Ardhangni of her husband, and the marriage ritual emphasises and reinforces conjugal intimacy. Panigrahana (taking the
bride's hand) and saptapadi (going seven steps
together) are important rites that represent union on two levels of equality and friendship.
According to Hindu sages,
the goals of marriage are dharma, praja (progeny), and kama
(sexual pleasure). Personal gratification (kama) is one of the ends of
marriage; however, its last place indicates
that it should
not be the guiding rule
of life, and thus the least
desirable goal of marriage.
Patriarchy
And Other Associations Of Domination And Subjugation
We
believe marriages are made in heaven and celebrated on earth, so how can
violence within a marriage be justified? Is raping a wife legal for a husband? Does a woman give up all control of her
body when she walks around the fire seven times, says "I Do," or
"Qubool Hai?" Marriage, according to Karl Marx, is a bourgeois
institution in which wives become instruments of production for a legalised
system of private prostitution. In The Communist Manifesto (1848), he argued that the continuing sexual exploitation of women in marriage is
"hypocritically concealed." According to feminist leader Marlene
Dixon, "the institution of marriage is the primary vehicle for the
perpetuation of women's oppression; it is through the role of wife."
This
clearly indicates that marriage is a patriarchal institution designed to
subordinate and subjugate women by men.
Patriarchy
has become embedded in social and cultural norms, as well as in the law and
political structures, as well
as in local and global
economies. It is also embedded in formal ideologies and public
discourse. Patriarchy has taken various historical forms, and it operates
differently in different cultural, geographic, and political contexts. It is intertwined
with other subordination and exclusionary systems. Statistics paint a bleak picture of marriage in
twenty-first-century India. Domestic violence has emerged as India's single
most serious crime against women. In 2013, the National Crime Records Bureau (NCRB) reported over 118,000
domestic violence cases, accounting for one-third of
all reported crimes.
According
to the United Nations Population Fund, more than two-thirds of married women in
India between the ages of 15 and 49 have been beaten or forced to provide sex.
Based on data from the National Crime Records Bureau and the National Family Health
Survey (2005-06), a study conducted by the US-based RICE Institute
and published by UN Women in 2014 revealed that "the number of women
sexually assaulted by their husbands is 40 times the number of women who suffer
such violence from others." Only 2.3 percent of rapes were committed by
men other than the victim's husband. However, only about 0.6 percent, or one in
every 167 incidents of sexual violence by husbands, are officially reported.
Historically,
gender roles - the socially constructed roles of men and women - have been
ordered hierarchically, with men exercising power and control over women,
according to the United Nations Report (2006).
Male dominance and female
subordination have ideological as well as material foundations.
Family
demands, religious texts and ceremonies, and even popular fiction and Bollywood
films reinforce this idea of male superiority from the time
a girl is young. Since birth, the majority of young brides have been taught
that "it is the woman's sacred duty to keep the home intact and that even
when the husband is unreasonable, unjust, or abusive, she must be patient, forgiving, and loving."
Physical And Psychological
Effects Of Marital Rape
Despite the historical myth that rape by one's partner
is a minor event that causes little trauma, research shows that marital rape
frequently has severe and long-lasting consequences for women. Marital rape can
cause injuries to private organs, lacerations, soreness, bruising, torn
muscles, fatigue, and vomiting. Women who have been battered and raped by their
husbands may suffer from broken bones, black eyes, bloody noses, and knife
wounds as a result of the sexual violence.
Miscarriages,
stillbirths, bladder infections, infertility,
and the potential transmission of sexually
transmitted diseases such as HIV are all gynaecological consequences of marital
rape.
Women who have been raped by their partners
are more likely to suffer from severe psychological consequences.
Anxiety, shock, intense fear, depression, suicidal
ideation, and post-traumatic stress disorder are some of the short-term effects
of marital rape. Long-term consequences frequently include disordered eating,
sleep problems, depression, difficulties establishing trusting relationships,
and increased negative feelings about oneself. Longterm psychological effects
are likely. Some survivors of marital rape report flashbacks, sexual
dysfunction, and emotional pain for years
after the incident.
Types Of Marital Rape
Legal scholars
have identified three types of marital
rape as commonly occurring in society:
Rape by battering: In "battering rapes," women are subjected to
both physical and sexual violence in the relationship, and they are subjected
to this violence in a variety of ways. Some are beaten during sexual violence,
or the rape may occur after a physically violent episode in which the husband
wants to make amends and coerces his wife to have
sex against her will. This category includes
the vast majority of victims
of marital rape.
Force-only rape: In "force-only" rape, husbands use only the amount
of force required
to coerce their wives; battering is not common in these
relationships. The assaults usually occur after the woman has refused sexual
contact.
Obsessive Rape: Other women have reported "sadistic" or
"obsessive" rape; these assaults often involve torture and/or
"perverse" sexual acts and are physically violent.
Position In India
Marital
rape exists in India de facto but not de jure. While in other countries, the
legislature has criminalised marital rape or the judiciary has taken an active
role in recognising it as an offence, the judiciary in India appears to be
working at cross purposes. The Supreme Court stated in Bodhisattwa Gautam v. Subhra Chakraborty13 that "rape is a crime against basic
human rights and a violation of the victim's" most cherished fundamental right,
namely the right
to life enshrined in Article 21 of the
Constitution. However, it contradicts this declaration by not recognising
marital rape. 14 Though there have been some advances in Indian domestic
violence legislation, these have primarily been confined to physical rather
than sexual abuse.
Women
who have experienced and wish to challenge sexual violence from their husbands
are currently denied State protection because Indian law has a general
marital rape
exemption in Section
375 of the Indian Penal
Code, 1860. This exemption
can be traced back to statements made by Sir Matthew Hale, C.J. in 17th century
England. Hale stated:
“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.”
This
established the notion that once a woman is married, she has no right to refuse
sex with her husband. This gives husbands sexual access to their wives in
direct violation of human rights principles and gives husbands a "licence
to rape" their wives.
Only two
groups of married
women are protected by rape legislation: those under the age of 1516 and those who are divorced
from their husbands. While rape of a girl under the age of 12 may result in rigorous
imprisonment for a period of 10 years or more, rape of a girl under the age of
15 results in a lesser sentence if the rapist is married
to the victim. Domestic violence against
the wife was criminalised
in 1983, when Section 376-A was added to the Indian Penal Code, 1860,
making rape of a judicially separated wife a crime. It was
an amendment based on the Joint Committee on the Indian Penal Code (Amendment)
Bill, 1972 and the Law Commission of India's
recommendations. 18 The
Committee dismissed the claim that marriage is a licence to rape.
Thus,
a husband can now be indicted and imprisoned for up to two years if he has
sexual relations with his wife, secondly, without her consent, and thirdly, she
lives separately from him, whether by decree, custom, or usage.
However,
the Task Force on Women and Children established by the Government of India's
Woman and Child Department believes that there should be a wider debate on this issue. The Task
Force's mandate was to review all existing women's legislation and schemes.
The
most important of the Task Force's four recommendations regarding rape under
the Indian Penal Code concerns the definition of rape. It argued that the
definition of rape should be expanded to include all forms of sexual abuse.
According
to the recommendation, the Law Commission's proposed definition of "sexual
assault" could be used instead of the existing definition of rape in
Section 375 IPC because "it is more precise."
However, the Task Force, like the Law Commission, did
not recommend including marital rape in the new definition. As of now, Indian law is completely inadequate in terms of
supporting mechanisms for women to exercise bodily integrity and sexual
autonomy.
Rebuttal Of Arguments Against Criminalization Of Marital Rape
The following are some of the most common arguments
raised in opposition to the idea and proposal of criminalising marital rape:
— There
is no need for legislation to address marital rape because it is extremely
rare. Due to the near-impossibility of proving marital rape, criminalising it
would only add to the already overburdened legal system. Dissatisfied, angry,
and vengeful wives may charge their innocent husbands with marital rape.
When
a woman marries a man, there is an implied consent to have sexual relations.
Marital rape laws would destroy many marriages by making reconciliation
impossible.
A reading of these arguments reveals that they are
merely fanciful, lame excuses of a male-dominated society, devoid of any legal
substance or moral force. It is not difficult to refute the preceding arguments.
Marital
rape is a widespread but underreported crime. According to a study conducted by
the Joint Women Programme, an NGO, one out of every seven married
women has been
raped at least
once by their husband. 20 Because the law does not support them, they
frequently do not report these rapes.
Regarding the second argument, that marital rapes are difficult to prove, it can be
demonstrated that criminalising marital rape serves to recognise rape in
marriage as a criminal offence and would serve as a deterrent to prospective
rapist husbands. The fact that marital rape would be difficult to prove is no
reason to ignore it as a crime.
Concerning
the third argument of women imposing malicious
charges, it should be noted that proving
a claim of rape in marriage is difficult; proving a fabricated claim is
even more difficult. Because of the stigma associated with rape trials, it is
unlikely that women will choose to go through such an ordeal out of spite. Furthermore, the criminal justice system incorporates safeguards
such as the requirement of proof beyond a reasonable doubt. This is no reason to deny victims protection
simply because someone may be
involved in a fabricated case.
In
terms of the fourth argument, it is true that after marriage, a wife implicitly
consents to sexual intercourse with her husband, but the expression of love through sexual intimacy is not the same as forced sex.
On the other hand, regardless of whether the marriage is a sacrament or a
contract, it strikes at the
very
foundation of matrimony.
Marriage does not, by any stretch of the
imagination, constitute consent
to harm or violence,
nor does the law allow anyone to give such consent.
Finally, a marriage in which the husband rapes his
wife is doomed. One of the goals of matrimonial laws may be to keep marriages
together.
However, it cannot override the fundamental goal
of law in general, and of criminal law in particular, which is to
protect and preserve a human being's bodily integrity. Withholding justice and
denying equal protection for marriage preservation is thus, at best, an inappropriate legal goal. The law should not promote forced cohabitation or
protect a raping husband.
Lacunae In Indian Law
The entire legal
system surrounding rape
is a tangle of contradictions. The following are the major legal
gaps that prevent women from being empowered against marital rape:
—
The judicial
interpretation has greatly expanded the scope of Article 21 of the Indian
Constitution, and the "right to live with human dignity"21 is now
included. Marital rape clearly violates a woman's right to live with dignity,
and it is argued that the exception provided under Section 375 of the Indian
Penal Code, 1860 violates Article 21 of the Constitution.
—
Article 14 of the
Constitution guarantees the fundamental right that "no person shall be
denied equality before the law or equal protection of the laws within
the territory of India." As a result,
Article
14
protects a person from discrimination by the state. However, the exception
under Section 375 of
the Indian Penal Code, 1860 discriminates against a wife in terms of rape
protection. As a result, it is argued that the exception provided
under Section
375
of the Indian Penal Code, 1860 is not a reasonable classification, and thus
violates the protection guaranteed by Article 14 of the Constitution.
—
Though the
Constitution22 makes it a fundamental duty for every citizen to "renounce
practises derogatory to the dignity of a woman," it appears that domestic violence
and marital rape do
not fall under the definition of dignity.
—
According to the
"United Nations Convention on the Elimination of All Forms of
Discrimination Against Women" (CEDAW), to which India is a signatory, such
discrimination against women violates the principles of equality of rights and
respect for human dignity. Furthermore, at its fifty-first session,
the Commission on Human Rights recommended that
marital rape be criminalised in Resolution No. 1995/85 of 8-3-1995 titled
"The elimination of violence against women."
—
Because consent
to matrimony implies consent to sexual intercourse, a husband cannot be
prosecuted for raping his wife. This implies that having sex whenever, wherever,
and in any form is an implied term of the marriage
contract, and the wife could not breach that term of the contract.
—
The law prohibits a girl under the age of 18 from
marrying, but it legalises non-consensual sexual intercourse with a wife who is
only 15 years old. According to the Indian Penal
Code, 1860, it is rape if the girl is not the wife of the
man involved and is under the age of 16, even if she consents. 23 However, if
she is a wife, over the age of 15, and refuses to consent, it is not rape.
—
Another paradox
is that the Indian Penal Code, 1860, defines rape as non-consensual intercourse
with a wife between the ages of 12 and 15 years. However, the punishment may be
a fine or imprisonment for a maximum of two years, or both,24 which is
significantly less severe than the punishment for rape outside of marriage.
Despite the fact that advocates for women's rights secured a clause in 1983
making it illegal for a man to have sexual relations with his separated wife
pending divorce, courts are hesitant to sentence husbands despite the law.
Suggestions For Reform
Following the discussion above, the following
recommendations are made:
— Marital rape
should be recognised by Parliament as an offence under the Indian Penal
Code.
—
The penalty
for marital rape should be the same as for rape under Section 376 of the
Indian Penal Code.
—
The fact that the
parties are married should not be used to reduce the sentence.
—
The fact that the
wife did not fight back and resisted forcefully, or screamed and shouted,
should not be used as a defence to the charge.
—
If her husband is found guilty
of marital rape,
the wife should be able to obtain a divorce decree. Though a case of
marital rape may fall under "cruelty" or "rape" as a ground
for divorce, it is not the only one.
—
While divorce may
be an option for the wife, if she does not want to divorce and wishes to continue
with the marriage, the marriage should be allowed to continue. Matrimonial laws
should be amended to reflect this.
Conclusion
It is acknowledged that changing the law on sexual
offences is a difficult and sensitive task, especially in a country like India, where there is a diverse
and differentiated system of personal and religious laws that may conflict with the new
amendments to the statutory criminal law. While there is a need for significant
changes in the law on sexual offences, such as gender neutrality and
eliminating inequalities, a radical overhaul of the structure of sexual
offences is not recommended. 25 The immediate need is for marital rape to be
criminalised under the Indian Penal Code. However, simply declaring a behaviour
to be an offence is insufficient.
More needs to be done to educate
the judiciary and law
enforcement. There is also a need to educate the general public about
this crime, as the true goal
of criminalising marital
rape can only be achieved
if society recognises and challenges the prevalent myth that rape by
one's spouse is insignificant.
1.
R. Thornhill and
C.T. Palmer, A Natural History of Rape: Biological Foundations of Sexual
Coercion (1st Edn., MIT Press Cambridge Mass., 2000).
2. R. Thornhill and N. Thornhill, The
Evolution of Psychological Pain, in Sociology and Social Science, Edn., R.
Thornhill and N. Thornhill (Texas Tech University Press, 1989).
3. D.K. Gosselin, Heavy Hands: An
Introduction to Domestic Violence Crimes (1st Edn., Prentice-Hall Inc., New
Jersey, 2000).
4.
National Violence
Against Women Survey, NCJ 172837, US Department of Justice, Washington, DC.
5.527. 65 Am Jur 2d, Rape. Back to Text
National Clearinghouse on Marital and Dating Violence,
1996. 6.Unwanted Sex: The Culture of Intimidation and the Failure of Law, S.J.
Schulhofer (Harvard University Press, Cambridge, 1998), p. 30.
7.R. v. D., 2 NZLR 272 (1987). (CA).
8.1 SCC 490 (1996) Tandon,
N., and Oberoi, N., Marital
Rape — A Question of Redefinition, Lawyer's Collective, March 2000, p.
24.
9.1 Hale, History of Crown Pleas 629 (1778).
Text 16: Exception
to Section 375 of the Indian
Penal Code of 1860.
10. Indian Penal
Code, 1860, Section 376-A.
11. Law Commission of India, 42nd Report, 1977, Indian
Penal Code, p. 277, para 16.115.
Article Information
Marital Rape — Myth, Reality and Need for Criminalization (By-Chaya Gaur & Mr. Shaharyar Khan)
Authors: Chaya Gaur, Mr. Shaharyar Khan
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/16
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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