Open Access Research Article
Marital Rape: An Unaddressed Stigma A Debate That Must Find Its End (By- Aman Nigam)
Published Paper
Article Details
Marital Rape: An Unaddressed
Stigma
A Debate That Must Find Its
End
Authored By- Aman Nigam
Abstract
Marital Rape refers to the act of
sexual intercourse with one’s spouse without his/her consent. Whenever one
commits sexual intercourse with the other person without his/her consent we
term it rape. Why, then we do not categorise marital rape as a rape even though
it violates the consent of the other person? This article will examine the
current scenario revolving around marital rape and as to why it remains
unaddressed and is still subjected to stigmatisation in India. A comparative
global approach will also be mentioned signifying the lessons that India can
learn from the countries who have already criminalised marital rape, first
being Russia as it was the first country to criminalise marital rape in 1922.
Analysing various viewpoints and also determining the impact of marital rape on
people belonging to socio economic background, the article would then point out
as to what can be the way forward for a country like India to address the issue
of marital rape. This will be in the form of conclusion.
Keywords: Marital Rape; Current
scenario; Consent; Sexual Intercourse
Issues With
Section 375-
Section 375 in The Indian Penal Code[1]
says that a man is said to have committed rape when his Act of sexual
intercourse with a woman falls under any of these six broad categories-
1. If he commits sexual intercourse against
the will of the woman
2. If he commits sexual intercourse without
her consent
3. If he commits sexual intercourse
with her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
However, the exception makes this
section a little problematic. The exception says that forced sex in marriage is
not a crime, if the wife is above the age of 15 years.
When we look at the wordings of the
Section, it clearly raises the issue of consent, which when not present can be
termed as ‘rape’. When a man gets involved in sexual intercourse with a woman
when both of them are a married couple, suddenly the issue of consent does not
come in the picture. Moreover, the exception makes this section more
problematic as setting 15 years as age limit has no rationale behind it. If a
man commits rape and his wife is of 22 years without her consent, the issue of
age limit will render in not considering this as a marital rape and if the same
is committed with a minor of 14 years, it will be considered as marital rape
even though the consent is still violated in both the cases. The sexual act
committed against a minor will be dealt under POCSO[2]
and can also be tried under the Prohibition of Child Marriage Act, 2006[3].
However still the issue of marital rape will not arise because of Section 375
exception. A marriage is a partnership of equals, a woman can no longer
be termed as a ‘property’ of the husband. The Courts and the government
say this and on the other hand, itself make a section so contrary to what they
say. This section must be amended and better provisions such as making marital
rape a valid ground to obtain divorce and maintenance can be added. However,
provisions that needs to be added must see that there is no interference in the
private lives of the citizens and the overall marriage as an institution.
The Debate
On Marital Rape-
There have been extensive debates on
the issue of Marital Rape. The Supreme Court in Independent Thought v. Union
of India[4],
indirectly raised the issue of marital rape, however did not extrapolate on
this as it would then adjudicate upon the current legal issue of marital rape.
The Courts, despite of various petitions being filed before it likes to play
safe when such a sensitive issue arises. Ironically. The Law Commission of
India in its 172nd report[5]
has indirectly laid down that a man committing rape on her wife will not be
treated as an offence. However, if the man molests his wife, he could be
punished within the provisions of the Indian Penal Code. This stand is clearly
ironical and extensively debatable. Most of the rapes in India, are committed
by known persons, such as relatives, fathers, brothers etc.. These rapes mostly
go unreported as there is always an apprehension on the mind of the victim that
it can damage her reputation within the family or if that person has done a
favour for the family, then even the parents who might not be so well educated
or belonging to a good socio-economic background might prevent the victim from
reporting rape. The state still does not realise that the same can be
applicable to a women in marriage where her own husband without her consent is
committing sexual intercourse. She might be more reluctant to report this as
the state has provided no remedy to her. ‘Marriage is a social institution’
would not provide her the remedy she wants and the husband can anytime commit
sexual intercourse on her. She suddenly, has no voice either in the court of
law or when she is being “raped”.
Jeremy Bentham, an English
philosopher, jurist and a social reformer said the following-
“It is not proper, by a gross and
puerile joke, to deny the existence of this crime (rape) and to diminish the
horror of it.”
Only the person who has been raped
knows the horror of it and it turns into a horrific situation when the same
person cannot avail any remedy for it. Nobody can understand the pain, who will
provide the relief?
A report was released by the United
Nations in 2015 titled- ‘The World’s Women 2015[6]’
where it was said that- ‘half of countries in developing regions report more
lifetime
prevalence of intimate partner
physical and/or sexual violence than the developed nations’. This affirms that
sexual violence inside of marriage is prevalent not only in India but also to
other developing nations as well.
This gives us a clear conclusion that
the status of women determine today where a country stands. This affirms that
when women are treated with respect, dignity and they have assurance that their
rights are protected, then automatically the country as a whole improves. Moreover,
when it comes to an issue of ‘rape’ women deserve the full protection and the
right to say ‘no’ when they do not feel like they are ready to engage in a
sexual act.
The View Of
The Courts And Our Constitution-
There have been various judgements
given by the hon’ble courts on the issue of marital rape in India. However, in
none of the judgements did the court give the message that marital rape
exception should be removed. It has dealt with this issue extensively in many
judgements, however at the end did not really recognise marital rape as a
crime.
In Independent Thought v. Union of
India, the courts punished the person who committed marital rape on minor,
however the courts also held that marital rape is not a crime and the wife can
make her husband liable only under Section 377[7] of
the Indian Penal Code and that too under sodomy, buggery and bestiality. The
Courts were reluctant to include marital rape on the list of crimes.
In Bodhisattwa
Gautam v. Subhra Chakraborty[8],
the Supreme Court held that rape violates basic human rights, not only basic
human rights, but it also violates the fundamental rights of women such as Article
21[9]
which also includes right to life. The Supreme Court clearly by themselves say
that rape violates the basic human rights, why then there arises a problem in a
situation of marital rape. How can consent be so easily presumed when it comes
to marital rape? Marital Rape is no less than the actual rape. This is evident
from the horrific cases being reported. When the girl from Barrackpore married,
she was only 19 years old. The marriage didn't last long; she returned home
after 10 months, traumatised by her husband's insatiable desire for sex.
She was literally raped on the first night of her marriage, and she was forced
to have sex in a variety of ways more than twice a day.
Which of the courts will give her the
relief that she wants, moreover will she ever get the relief?
The High Court of Karnataka has shown
some light when it said in a recent case dated 23 March 2022, that the
exception to Section 375 cannot be absolute and men cannot consider
women as their own property. The High Court rejected the petition of the
husband who was contending that he should be given the protection under the
exception of Section 375 and hence, he should not be made liable even though he
committed forceful sexual act on his wife[10].
"The exemption of the husband on
committal of such assault/rape, in the peculiar facts and circumstances of this
case, cannot be absolute, as no exemption in law can be so absolute that it
becomes a license for commission of crime against society", the Court
said.
The Court stated that the exemption
for marital rape is "regressive" and would violate the equality
principle established in Article 14[11]
of the Indian Constitution. Articles 14, 15[12], 19[13],
and 21 of the Constitution provide fundamental rights such as the right to
live in dignity, personal liberty, bodily integrity, sexual autonomy,
reproductive autonomy, privacy, and freedom of speech and expression. The
Constitution guarantees equal rights and therefore it implies equal
protection too to be given. Hence, this clearly then should consider
marital rape as a rape.
A single bench of Justice M
Nagaprasanna also said the following-
"The Constitution, a
fountainhead of all statutes depicts equality. The Code practices
discrimination. Under the Code every other man indulging in offences against
woman is punished for those offences. But, when it comes to Section 375 of IPC
the exception springs. In my considered view, the expression is not
progressive but regressive, wherein a woman is treated as a subordinate to
the husband, which concept abhors equality”. Further he also said the
following-
“A man is a man; an act is an act;
rape is a rape, be it performed by a man the "husband" on the woman
"wife".
This one line alone should urge our
lawmakers and the topmost judiciary to step up and address the issue that is a
clear blot on our Indian Society.
The argument often given by the
government that marriage is a social institution and state must not interfere
in this sacred institution and the private life of Indian citizens has by in
itself is very contradictory when the court ruled in K.S
Puttaswamy v. Union of India[14].
In this landmark privacy decision, privacy was defined as "the ability of
individuals to control vital aspects of their lives and safeguard the autonomy
exercised by them in decisions concerning personal intimacies, matters of home
and marriage, and sexual orientation."
This infringement of the same privacy
is violative of Article 21 of the Constitution. Hence, this clearly fails the
argument of the government that marriage as a social institution must be
protected. On the pretext of this argument, today many women in India are
getting raped inside of marriage where her consent and her right to manage her
own affairs falls in a deep well where there is no way out. This now clearly
lays bare the “double standards” that the government is following. The time is
ripe to criminalise the marital rape until it is too late for the women of our
country to hold on.
The Lessons
For India From The Global World-
Russia, then known as the Soviet
Union criminalised marital rape as early as 1922[15].
The Russian law says that rape is against the law, and a relative, including a
spouse, who commits rape faces the same penalties as a nonrelative. Many
countries such as United Kingdom, United States of America, Canada, New Zealand
and many more have criminalised marital rape. Even countries like Rwanda,
Nepal, Vietnam all have criminalised marital rape and the punishment can go as
far as life imprisonment for a person committing the marital rape[16].
The countries such as USA, UK are said to be developed and a part of this
development can be attributed to the protection these countries grant to the
women of their countries. The women have the freedom to say ‘no’ even when they
are married. Force implies Fear and Fear eats us inside while Freedom implies
confidence and freedom blossoms us from inside and make us an empowered
decision maker who can make his own decision when the time arises. Relying on
this logic, India must give freedom to women to make their own decisions when
it comes to their sexual autonomy and their dignity.
The social fabric of marriage will become more
strengthened instead of weakened when women have the freedom to say ‘no’. Fear
is what today making the institution of marriage as ‘weakened’. This is exactly
when they will become empowered, not just by talking about ‘women empowerment’
can anything be achieved.
The
Sociological Perspective On Marital Rape-
Let us take the example of Canada’s
legislation[17] and
with the help of this country let us try to explain “collective solidarity” in
light of Emile Durkheim’s theory and establish connection between them.
Collective solidarity refers to a group of individuals that group together from
the responsibilities shared by all, i.e.- which are common. Durkheim uses the
term “social solidarity” instead of collective solidarity. Social solidarity is
that which holds society together. This social solidarity can be measured
through law. According to Durkheim, legislation acts in a way that can be
experimentally tested to reflect social solidarity, because it confirms a
society's norms and ideals (Pavlich, 2011). Prior to 1983, it was lawful in
Canada for a person to rape their spouse (marital rape), but this was altered
in 1983. (Koshan, 2010). According to Durkheim's theory, in this example, the contemporary
'collective conscious' (society's norms and values) believes rape, even with
one's spouse, is immoral; however previous to 1983, the collective conscious
did not believe raping one's spouse was immoral.
I believe there are two major
components to how the law influences social solidarity: codification of the law
and discretionary powers obtained from the law. The language of the laws; the
written laws themselves are referred to as the codification of the law. This
form is related to the marital rape legislation example, which has been written
in a way that fosters social solidarity (bonding people via common
responsibilities): everyone's desire for safety and well-being, and everyone's
obligation not to hurt others (since 1983). The last aspect, discretionary
powers derived from the law, relates to those who enforce the law, such as
judges, police officers, and border guards, who all have discretionary powers.
B.R Ambedkar, a great sociologist
said the following lines-
“Realising the depth of the degradation
to which the so-called leaders of the people had fallen…Could any sane man,
could any man with a sense of shame, oppose so simple a measure? But it was
opposed…”
He wanted to point out the great
necessity of laws that this society needs in order to be governed properly. Dr.
Ambedkar would be surprised to see that no one is willing to criminalise the
issue of the marital rape. The Justice Verma Committee’s report even
recommended that marital rape should be criminalised in the wake of the horrific
Nirbhaya Rape Case[18]
that happened. Justice Verma said that the relation of the perpetrator to the
victim should not be a defence against the crimes of rape or sexual violation.
Moreover, he said that marriage or any other intimate relationship should not
justify the lesser sentences for rape of women. The sentence for the rape must
be same for all and it is high time the exception to Section 375 be immediately
removed.
Conclusion
“The dignity of the individual
encompasses the right of the individual to develop to the full extent of his
potential. And this development can only be if an individual has autonomy over
fundamental personal choices”. This was the opinion given by Hon’ble Justice
Nariman in K.S Puttaswamy v. Union of India. Several judges while giving
judgements and in their reports have said that marital rape should be
criminalised, one report being of Justice Verma Committee only. Extending this
opinion further, today women of our country are facing injustice when they are
left with no remedy in case of rape on the pretext of marriage. How can the
marriage of two people survive ahead when there is rape involved. If not
completely removing the exception enshrined in Section 375, the government
should at least allow women to take divorce and claim maintenance.
The Debate must find its end because
the arguments have now come to an end
The Debate must find its end because
the women are empowered to defend
The Debate must find its end because
we as citizens cannot pretend
The Debate has ended because India
realised there is no dead end.
At last, this poem gives us hope that
one day the issue of marital rape will be criminalised and that is when India
as a country would have finally realised that all it is and all it was, was
just a dead end.
Let us progress and progress in a way
so that the women progresses, the society progresses, India progresses and the
World progresses.
Article Information
Marital Rape: An Unaddressed Stigma A Debate That Must Find Its End (By- Aman Nigam)
Authors: Aman Nigam
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/30
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.