Open Access Research Article
MARITAL RAPE (By-Pooja Lakshmi)
Published Paper
Article Details
MARITAL RAPE
Break the
silence, stop the violence.
Authored By-Pooja Lakshmi ,
Student Of Law, Bennett
University.
Abstract:
India
is thriving in every arena and establishing itself on a global basis, yet the
rules that control Indian citizens are outdated, and it is past time for
Marital Rape to be criminalized in India. Inherently as the idea of the Marital
Rape Exception creates a distinction between married and unmarried women, and
denies the former equal protection under the law, it appears to be a violation
of Articles 14, 15 and 21 of the Indian Constitution.
We
live in a country where criminalizing marital rape is seen as a threat to the
institution of marriage. Does this threat not have any validity to the life of
the women and her mental stability? The paper is explorative in nature and
tries to suggest to readers the methods in which India can do better in terms of
respecting women, her choice and dignity. The paper also tries to demystify the
traditional thoughts which have lesser validity when compared to compromising
standard of living. This study examines the practice of marital rape, as well
as the difficulties involved, from a human rights standpoint, and critically
analyses proposals made by various segments of civil society to make marital
rape a punishable offence by amending relevant sections of the IPC, as well as
the 172nd Report of the Law Commission of India and the Justice Verma
Committee. The paper also focuses on examining the concept of Indian judicial
activism in relation to the delicate issue of marital rape criminalization and
its evolution in modern India.
Introduction:
We
must not have him come forth to violate the self-esteem and dignity of women in
this modern day where every nation recognizes their sexual autonomy. Prof. PSA Pillai's remarks that the husband's protection
from material rape is assumed to depend on the concept that when a woman
marries, she conveys her agreement to the husband for sexual intercourse for
the rest of her life i.e., her husband is given the right to have both
non-consensual sex or consensual sex with her, and this turns out to be an
obligation as she has no choice except to yield or submit to his demands.[1]
The
following elements must be present in order for rape to be considered offence.
The elements have to be under any of circumstances, where a man must have
sexual intercourse with a woman against her consent or permission. further the
permission must not be obtained by threat or under fear of death or hurt. it
must also not be based on the false assumption that the man is her husband.
Consent is provided due to insanity, intoxication, or being under the influence
of any stupefying or unwholesome substance can also be accounted as rape.
circumstances where with or without the consent of a lady under the age of
eighteen or with a woman who is unable to give her consent verbally, such
sexual intercourse is also treated as rape.
Every
law in this world has some exceptions and loopholes and such an exception to
this law is marital rape. The exception of marital rape specifies that if the
wife is under the age of 15, non-consensual sexual intercourse by the husband
with his wife qualifies as rape. It means that if the wife is over 15 years
old, it is not rape, and by reading Exception-2 with the conditions, the
exception will prevail, and it means that if the wife is over 15 years old, her
permission or will or consent thereof will be irrelevant. Now the question
arises whether a 15-year-old girl can give consent or knows the implications of
such an act.
The
simple question that comes into the mind of every broad-minded Indian citizen
is why we need such an exception where a husband has authority to rape his own
wife without her consent. Moreover, whether the Indian Courts has the authority
to strike down the IPC clause based on constitutional validity. Further, if we
strike down this clause, what will be the repercussion?
If
all sexual acts between a husband and his own wife meet the criteria as marital
rape, the wife will be the final authority of whether it is a marital rape or
not. The question in such circumstances is what evidence the Courts will rely
on, as there can be no evidence in these cases. The Central Government argued
before the Hon'ble High Court of Delhi that removing Exception 2 would be
ineffective since a man's definition of 'rape' under Section 375 of the IPC[2]
cannot be the same in the event of marital rape.[3]
Effects
Of Marital Rape
As
the rapist is husband, with whom she had agreed to spend the rest of her life
in positivity, marital rape is more serious and a particularly vulnerable
situation for women. On the body, we may find injuries to private organs,
bruises, fatigue, lacerations, torn muscles, fractures, and other
complications, such as broken bones, blackened eyes, and wounds inflicted by
any kind of weapon, and women who have to face this suffer from physical
violence, as well as other complications such as broken bones, blackened eyes,
and wounds inflicted by any kind of weapon, during sexual violence. Women are
more likely to experience difficulties such as miscarriages, infections,
infertility, and the risk of diseases such as STDs as a result of marital rape.
Additionally, there are no adjectives to describe the anguish a woman feels
when her own husband rapes her repeatedly. Physical symptoms may still be
treated, but psychological symptoms can be more severe in some circumstances.
Depression, panic, self-hatred, anxiety, low confidence, shock, low
self-esteem, fear, suicidal tendencies, tension, and other post-traumatic
stress symptoms can be seen in women who have been subjected to marital rape.
Laws
In India
Domestic Violence
The
Domestic Violence Act of 2005, Section 3[4],
addresses sexual violence in a broader sense. Domestic violence can also be
referred to as domestic abuse, including beating, or family violence when it
occurs between two people who are legally married or have a connection that is
similar to marriage and involves various forms of violence such as physical
violence, sexual violence, emotional violence, and economic violence, all of
which can be a result of societal inequality. As per domestic violence act, marital
rapes can be handled by using various sorts of violence and may have a history
of domestic violence's or ill-treatments; non-consensual acts that may result
in bodily injury to the victim; hence, a husband is not permitted to instigate
any type of violence or cruelty towards women under any circumstances.
Child Marriages
The
age of consent for sexual intercourse within marriages has been decided to be
raised to 18 by the Supreme Court.[5]
Here, The Criminal Law Amendment Act of 2013 revised Section 375 of the Indian
Penal Code[6]
to raise the age of consent to sexual intercourse to 18, laying the law in
conformity with provisions in all other statutes that recognize a child as a
person under the age of 18. A marriage contract between two
parties
where one of them is a minor, i.e., under the age of 18 for girls and 21 for
boys, can be declared void and nullified by the person who was a minor at the
time of the marriage within two years of attaining majority under the
Prohibition of Child Marriage Act, 2006. Further, in the case of a minor girl,
i.e., under the age of 18, early marriage and consummation does not ensure her
ability to give consent, and the legislature will impose severe penalties under
the POCSO Act if this occurs. Families must be educated about women's marital
rights of intercourse, as well as gender empowerment, to restore women's
integrity. This will be accomplished through adult literacy programs and
sexuality education for children.
Exception
2 of s.375, on the other hand, creates an element to the offence of rape in
cases of forced sexual intercourse by a man with his own wife if she is 15
years of age or older, and as this has not been amended, resulting in an
alarming situation in which forced sexual intercourse by a husband with a minor
wife between the ages of 15 and 18 is permitted. In this regard, Independent
Thought and Child Rights Trust stated that categorizing married and unmarried
young girls for the purposes of penalizing sexual abuse had no rational
connection to the Section's purpose nor objective and pointed out that it also
goes against the state's duty under Article 21 and international conventions to
protect children's rights.
The
Union of India, on the other hand, asserted that it was up to Parliament to
correct the anomaly found in the Exception in Section 375, as the reason to
preserve the categorization was made in response to social pressures and the
State's aversion to interfering in marital life. Consequently, Exception 2 to Section 375 of
the Indian Penal Code[7]
raised the age of consent to 18 for the purposes of the Exception and advocated
for legal measures to prevent and remedy breaches of girls' rights caused by
child marriage. The India Penal Code provides an arbitrary and discriminatory
differentiation between married and unmarried women that has no rational nexus
with any specific objection meant to be reached, and the illusionary division is not in the
best interests of the women.
Discrimination towards minor
girls infringed their fundamental rights prior to Independent Thoughts'
verdict. The verdict of this case has brought remarkable impact in society
because it raised concerns about the impact on sexual and reproductive health
and invalidated an outmoded classification in rape legislation.
Conjugal Rights
People may believe that
restitution of conjugal rights has no legal significance, but the truth is that
it plays an important role in society. Restitution of conjugal rights does not
provide any individual right to rape his spouse and thus they do not overlap or
contradict each other. The courts ensure that women's sexual liberty is not
jeopardized by the concept of conjugal rights. It is to be noted that Marriage
is not a contractual relationship in which the right to privacy is violated;
its formation or dissolution is not comparable to contractual relationships as
it is a sacrament, and the decree of restitution of conjugal rights does not
permit marital rape.
Restitution of conjugal rights is a measure of safeguarding the marriage
institution, in which persons are obligated to share a household. Sexual
intercourse is not the prime objective of the decree; rather, it is an attempt
by the state to sustain the marriage institution, and state does not an attempt
to impose one to give up one's body and sexual privacy without one's consent
through restitution of conjugal rights.
Justice Verma
Committee
The
Justice Verma Committee Report is a result of the increase in rape cases in
India, which includes majorly the terrifying Nirbhaya Case[8].
The government was forced to amend the rape laws to make them more rigorous in
order to generate deterrence as a result of the report. The JS Verma Committee
report and the Usha Mehra Committee report were key influences on the Criminal
Law Amendment Act, 2013, which took effect on February 3, 2013.[9]
The committee emphasized the
words of Lord Keith, “Marriage in modern era is viewed as a partnership of
equals, rather than a relationship in which the wife must serve as the
husband's chattel.” The committee considered jurisdictions that allow for the
criminalization of marital rapes, such as Canada, Australia, and South Africa,
along with the fact that “The nature of rape does not vary with partnerships,
and the view of marital rape is not different” for comparison. Further, the
definition of consent was discussed, with the conclusion that it cannot be
inferred from the relationship status. The committee report also discussed
sentencing, which is a critical issue, by presuming that courts may view
marital rape as a less severe crime with light sanctions.
The
CEDAW Committee's recommendations were also underlined, with more detail.
Sensitization, training, and awareness should be the initial steps in ensuring
that marriage does not destroy the wife's legal and sexual autonomy. One of the
significant contributions in light of marital rape in a more thorough and
appropriate manner where sexual interactions were distinguished with sexual
activity and sexual violence was these guidelines.
India
Vis-A-Vis World
The
dominance of male and patriarchal society resulted in the infringement of
women's rights in traditional marriage ideas. However, during the 1960s and
1970s, most Western countries' attitudes on marriage and sexuality have been
challenged, particularly by the second wave of feminism. People began to
recognize and respect a woman's individual rights from this point forward.[10]
There have been numerous debates in which parliament was asked to recognize
marital rape as a crime in India, but the outcome has been
unfavorable.
India is among 36 countries in the world that still did not criminalize marital
rape, and even when the courts are inundated with writ petitions demanding that
the violation be made a crime, the Supreme Court declines to intervene due to
multiple legal exceptions. Furthermore, conflicting judgements issued by the
High Courts on this subject are making reconciling the disparities even more
challenging. In India, a man can legally rape his wife without legal
repercussions, because consent is assumed if one is married, and it comes as
more of a distress, especially when one in every three women between the ages
of 15 and 49 has admitted to enduring some kind of a sexual violence from their
spouse.[11]
Due
to the spousal exception provision in the Indian Penal Code, marital rape is
not recognized as a form of sexual violence in India, but it is regarded as a
kind of sexual violence that can be described as non-consensual sexual
intercourse by the victim's spouse. “The regressive notion that "A husband
can't rape his wife" is legal; it is legal sexual intercourse with the
potential for unwanted sex, sexual assault, violence, and so on.”[12]
elaborating the statement with interpreting the mindset of the writer it can be
said that Sir Matthew Hale was trying to give the readers the view that when
matrimonial consent was given by wife to her husband, she agreed for all when
she agreed for marriage, and this all has no limit and can be as inhumane as
rape as well.
When
Chief Justice Gita Mittal and Justice C. Hari Shankar questioned if there had
been any research done on the impact of criminalizing marital rape in nations
like Nepal, the United Kingdom, or the United States, they were informed that
many countries around the world have made marital rape a criminal offence and
think that it should be punished.[13]
The court noted that the exception in the legislation offering immunity to a
spouse was exceedingly broad, allowing him to do whatever he wished in a
marital relationship. 'The relationship between the offender and the victim has
nothing to do with consent for sexual intercourse, and a husband or wife may be
charged with an offence under the Criminal Code whether or not they lived
together, and a husband might be found guilty of raping his wife.'[14]
In
Austria, marital rape was considered illegal in 1979 with a maximum penalty of
15 years in jail. Finland criminalized and prohibited marital rape with
punishments of up to four years in 1994; however, if violence is perpetrated
against a married woman, the punishment is more severe. In Jordan, a husband
who has committed marital rape will be sentenced to at least ten years in jail
whereas the exemption for marital rape was abolished from Irish criminal law
and similarly Germany also removed exemption through amendment. In 1980, the
Israeli Supreme Court ruled that marital rape was a felony offence punishable
by up to 16 or 20 years in prison.
According
to statistics, marital rape is more common in rural areas where marriage is
seen as a free license to perpetrate this crime. If many countries around the
globe could criminalize marital rape, why not India as and it is past time for
India's court to act on this matter and safeguard our country's marital rape
victims by striking down the laws that make marital rape not a crime. The
judiciary needs amendments to produce better judgements. However, as the term
marital rape is ambiguous in and of itself because marriage implies that both
parties agree on a mutual contract of sexual intercourse, and if marital rape
is acknowledged, it can lead to abuse because the proof cannot be submitted
authentically in this case, making it difficult to determine whether it is rape
or mutual intercourse, the judiciary is trying its best to find a balance.
The
Indian Constitution establishes the rights to equality and life in Articles 14
and 21, respectively, and marital rape infringes on both fundamental rights, as
well as the right to privacy to some extent. The Puttaswamy[15]
decision made it obvious that every individual's fundamental right to privacy
is guaranteed by the Indian Constitution, specifically Article 21 and Part III
as a whole and thus the author believes that its not appropriate for the
husband to infringe on the right to privacy of his spouse as it is a
fundamental right.
Breaking
a marriage has long been regarded as an evil act and a social taboo, according
to society. Our society views marriage as a fairy tale with a happy conclusion,
and everything that contradicts this view is ignored. But, as a community, we
must recognize that such challenges in marriage are not normal, and what the
women go through is not something they deserve. Such obstacles should not be
kept within themselves for the good of society. The health of these victims,
and the rapist, regardless of whether he is her husband, should face the same
sanctions. If rape is regarded a violation of a fundamental right, laws and
society should not make a distinction between a husband and a stranger.
It
should be clear to Indian society that “the introduction of equality clause
within home will destroy the institution of marriage.” stated in the case of
Saroj Rani v Sudarshan Kumar Chadha[16]
does not mean that the women in the house must be discriminated or treated in
the wrong manner. The basic credo of the laws designed for Indian citizens is
that no innocent person should be punished, even if it means letting the guilty
go free. Furthermore, it is critical that women in the country begin fighting
for their freedom from all the atrocities, since this is an essential necessity
right now. Considering our law is not static, it changes to meet the demands
and requirements of society, and in order to see a change in our judicial
system, all citizens must understand the repercussions of marital rape for it
to be criminalized.
Relevant
Cases:
Judgements
that created an impact with respect to protecting women from marital rape are
numerous as courts from time to time interpret natural law and morality.
Under
Article 21 of the Constitution, the Supreme Court associated the right to make
sexual activity-related decisions with the rights to personal liberty, privacy,
dignity, and bodily integrity.[17]
The Supreme Court in the case of Arnesh Kumar v State of Bihar, also declared
that criminalizing marital rape would result in the "collapse of societal
and family systems."[18]
and in the case of The Chairman, Railway Board v Chandrima Das, the court
further elaborate that Rape, is not just a criminal offence under the Indian
Penal Code, but also a crime against society as a whole. [19]
Rape is more of a display of animosity aimed at corrupting and mortifying the
women than it is a sexual transgression. In this way, the marital exception
principle deprives the spouse of his or her right to a dignified life. Any law
that jeopardizes women's right to dignity and empowers husbands to force their
wives into sexual relations against their will is unconstitutional, was held in
the case of Bodhisattwa Gautam v. Subhra Chakraborty.[20]
Under
Article 21, the right to privacy includes the right to be able to sit without
being harassed or aggravated, and any form of violence, including intense sex
(marital rape) jeopardizes the right to protection and sexual security.
Moreover, it is argued that teaching marital exclusion to rape jeopardizes a
married woman's right to protection by forcing her into a sexual relationship
she does not desire.[21][22][23]
Vishakha v State of Rajasthan, in addition stated that by decriminalizing rape
within a marriage, the marital exception doctrine infringes on a married
woman's right to privacy, making it illegal. [24]
The
Gujarat High Court has decided that marital rape is what has harmed the
institution of marriage since it is a non-consensual act that undermines trust
and confidence within a marriage. However, on the other side of the coin there
are many judgements where courts have said that even if by force, the sex
between married couple cannot be considered as marital rape.[25]
The concept of marital rape was explored in depth in a 2014 Delhi High Court
case, but the court eventually ruled that now is not the time to criminalize
marital
rape in India because 498-A provides a sufficient premise to resolve its linked
difficulties. The court went on to say that neither new law nor the elimination
of the exception clause is required.[26]
The
verdict of Justice M Nagaprasanna, “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’”[27]
is something that we Indians must acknowledge and put efforts as to bring
positive changes in the world.
Conclusion
& Suggestions
Despite
the fact that marital rape is not criminalized in India at present, many courts
have ruled in favor of women's rights in the with the passage of time. These
includes the Kerala High Court ruling that marital rape is a valid reason for
divorce, and the Gujarat High Court stated that marital rape is a
"disgraceful conduct" that has caused "a significant population
of women" to suffer since it is not criminalized. We the people must
understand the fact that when a husband is unconcerned about his wife's
personal space and disregards her preferences, he is infringing on her
fundamental right to privacy. Rape in the home should be treated the same as
rape in public. Because if the emotional repercussions of both offences are
equivalent, the punishment provisions must also be the same.
When
marital rape is not recognized as a type of rape, the 'right to equality' is
violated, therefore marital rape must be treated as a criminal offence
punishable by severe penalties, i.e., criminalizing marital rape in India as to
safeguard its citizens and prevent it from reaching a dead and where there will
be no option to protect the rights of women. Sections that normalize the
allegedly 'not' normal marital rape culture should be struck down so that the
normalization of the marital rape culture can be prevented. Marriage is seen as
a shield and sanctity in the eyes of the law; hence these regulations do not
apply to marital rape, and this is not the right way to implements rules and
regulations in a society. As a result, India requires certain protections for
victims of marital rape.
Marital
rape cannot be overlooked by the law because it is the same as rape committed
by a husband against his wife. If a husband assaults his wife, he will be
prosecuted under the IPC for assault, but if the same husband forces his wife
to engage in sexual intercourse, he will only be prosecuted for assault under
valid marriage and not for rape. A husband who rapes his wife should face the
same penalties as any other rapist. Just because they have a marriage
certificate does not give him the authority to commit such a heinous crime, and
in these circumstances, instead of being too preoccupied with giving he the
wrong advice save their marriage by not filing a complaint against the husband,
society could play a humanitarian role by assisting such women.
The
only reason the spouses must suffer in silence like this is due to the
judiciary's continued refusal to recognize it as a rape. The victim's
relationship with the rapist should not even be considered; rape cannot be
classified based on the relationship between the offender and the victim.
Because
of the nature of the relationship, rape cannot be elevated to a higher level is
a bizarre statement of societal thinking as it gives more importance to what
others might think than to giving self-importance and doing what is best for
yourself. It is not a crime only because you are married should not be what
India is in future. Our culture that states “Aditi devo Bhava” taught us to
treat guests as God and this also indirectly teaches us to treat family even
better. From family to society, that Is how rape must be eliminated from the
world and if marital rape is acceptable in the family between a married couple,
how can the world expect its children to not do the same offence in society.
Article 21 includes the right to live with human dignity and all that develops
with it, including the bare necessities of life, such as adequate nutrition,
clothing, and a roof over one's head, as well as the ability to read, write,
and express oneself in a various form, as well as the freedom to move around
and connect with other people. The right to live with human dignity is one of
the most basic components of the right to life, as it determines a person's
independence.[28]
The action of every individual is related to the circumstances that they have
gone through, but this cannot give anyone the right to violate a women's
dignity, especially in a country like India where we consider women as goddess
of the home.
Enough
is Enough – Stop Marital Rape.
Article Information
MARITAL RAPE (By-Pooja Lakshmi)
Authors: Pooja Lakshmi
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/23
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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