MARITAL RAPE: A NON- CRIMINALIZED CRIME IN INDIA (By- Mehak Sharma)
MARITAL RAPE: A NON- CRIMINALIZED CRIME IN INDIA
Authored By- Mehak Sharma
ABSTRACT
Rape by a spouse is one
of the worst crimes in India. Marital rape is nothing more than a crime of
rape, it is the nature of rape. Married women are usually victims of spousal
rape. Rape by a spouse is an aspect of marriage that is not covered by current
law.
Rape is unlawful sex
without the assent of a man because of physical drive or dangers, or due to
deceitful demonstration of the perpetuator[1]
This is one of the
biggest threats to gender equality in India. It is such social evil that has
existed in India for a long time and still causes great turmoil in India. There
are many derogatory opinions about the idea of marriage law, but the criminalization
of marriage law damages the marriage system and courts believe that it should
not interfere with what happens between husband and wife. There are few people.
Indian society has never seen marital rape as a problem. It is rarely rejected
in Indian society for a variety of reasons. India is currently the seventh-largest
country in the world, and the rate of increase in crime rates is very
disturbing and embarrassing for a prosperous, multicultural, large and secular
country like India. Marital rape is not only a major concern in the field of
women's rights today, but also violates some constitutional provisions. The
attitude of the Indian Parliament is no different in this regard. The Indian
legislature is entrusted by the Constitution of India with the heaviest task of
enacting legislation for national security, protection and development. However,
parliamentarians have no interest in banning the evil of spouse rape from the
country. Someone correctly points out that the growth and development of a
country can be judged by its position and respect for women. The Indian
judiciary offers little hope in this regard, but it is tied up because the
legislative enactment is a privilege of the legislature, not the judiciary.
There is no valid law on spouse rape in India. Whatever the laws that exist in
India, they are not enough to curb evil things like spousal rape. To ring a
spouse rape cat in India, some strict laws need to be enacted.
Keywords: Marital Rape, India, Section 375,
Indian Legislature, Indian Judiciary.
Introduction
When one mentions the
word rape, the tendency is to think of someone who is a stranger, a malicious
person. Usually one does not think of rapes in the context of marriage. Women
themselves find it difficult to believe that a husband can rape his wife. After
all, how can a man be accused of rape if he is availing of his conjugal rights?
It is indicative that a woman has no right to her own body, and her will is
subject to that of her husband. Marital rape is the most common.A widespread
and repulsive form of masochism in Indian society, which is well hidden behind the
iron Marriage curtain. There are various legal definitions, but spouse rape can
be defined as undesirable. Forced sexual intercourse or penetration (vaginal,
anal, or oral), force threat, or My wife can't agree[2].
Despite the epidemic of marital rape, this problem continues. Social
scientists, practitioners, the criminal justice system, and A larger society as
a whole. When a woman is compelled by her husband to participate in sexual
encounters after marriage against her will and without her consent, this is
referred to as marital rape. It is defined as one partner's forceful sexual
intercourse with the other. In the last few years, the rate of marital rape has
risen. The mental agony of being raped, the trauma of being victimised by her
husband, the helplessness of staying silent, and the lasting scars of these
episodes are all key parts of marital rape.
In light of this, the
idea that a woman (wife) has to have sex with her husband irrespective of her
will, consent, health, etc, is unacceptable to a civilized society.[3]People
in India are protected from crimes conducted on the streets, but women are
vulnerable to crimes done within their own homes that go undiscovered.When it
comes to the events in India, the concept of marital rape has always been in
the spotlight. Although India has progressed in practically every aspect,
sexual assault within the four walls of a married house is considered a
private, family affair and is not subject to public examination by institutions
such as the courts. In India, marital rape is not a crime, and the criminal
justice system has failed to provide justice to married women who have been
sexually assaulted. Marital rape is a widespread crime that goes unreported. Although
the true rate of marital rape in India, like in most other nations, is unknown,
several studies undertaken in India suggest that it is widespread, despite the
refusal of many officials to admit it. India's laws have focused heavily on
rape, sexual assault, and sexual abuse, but have largely ignored the concept of
marital
rape. Not that marital
rape doesn't exist in India, or that it is uncommon, but the central government
appears to believe that it would undermine family values and be a strong blow
to the institution of marriage. They further said that if the husbands are
granted a formal role, they will be harassed. The act of starting sexual
intercourse with one's spouse without the other spouse's consent is sometimes
referred to as marital rape. To assure progenies and the survival of the family
line, the lady had to offer her husband sexually, with or without her consent.
This convinced the woman that being sexually available to her husband at all
times was a need and a duty, and that she could never refuse her husband's
wishes. However, these rules were enacted at a time when anything was socially
acceptable.Women were believed to be man's slaves, and heinous practices such
as Sati and child marriages were common, but the situation in the country
altered with Raja Ram Mohan Roy's movement. India is today the world's seventh-largest
country, and the rate at which crime rates are rising is disturbing and
embarrassing for such a vibrant, multicultural, vast, and secular country.
Marital rape is not just the most pressing issue in the realm of women's rights
right now, but it also breaches several fundamental prohibitions. Someone
correctly stated that a country's growth and development may be measured by the
status and respect shown to its women.
The Impacts Of Marital Rape
Women who have been raped
by their partners experience pain, humiliation and distress.[4]In
India, marriage or a family disagreement is considered a private business of
the family, but it also infringes on a woman's right to defend her body when
she is in an abusive relationship with her spouse or even her in-laws. She is
subjected to domestic violence. Domestic violence is one of the most common
forms of abuse perpetrated against women after they marry, whether physically,
emotionally, or mentally. The tragic element of such a brutal act done against
a lady is that, even though her family is aware of it, she is told to remain
silent, and as a result, we frequently lose an innocent soul.In all of these
situations, it destroys a woman's mental health; she is traumatised day and
night, for weeks and months, and she is judged by society if she takes any
steps to protect herself or is viewed as a woman who disobeys her husband.
Laws Guarding Marital Rape In India
1. Article 21: Right to Life and Right
to Live with Human Dignity The Indian Constitution's Article 21 deals with the
right to life and personal liberty. "No one shall be deprived of his life
or personal liberty unless by a procedure established by law," it adds.
Without a doubt, the right to life is the most fundamental of all rights. All
other rights contribute to the overall quality of life and rely on the presence
of life to function. Because human rights can only be tied to living beings,
the right to life is likely to be the most important because, without it, none
of the other rights would be meaningful or useful. There would have been no
Fundamental Rights worth mentioning if Article 21 had been understood in its
original spirit. In the landmark case, Chairman, Railway Board & Others v
Chandrima Das & Others2, a foreign woman, SmtHanuffa Khatoon, was raped at
the YatriNivas by four men from the Railway Department, and then raped again by
a member of the Railway Department, where she was gagged and abused. Hearing
her screams, the residents of the rented flat rescued her, and the Court
awarded her Rs10 lacs in compensation. In this sense, the Supreme Court stated
that rape is not just a crime against the victim, but also a crime against
society as a whole. Rape hurts both society and the victim.
2. The Indian Penal Code,1860
As per current law, a wife is presumed to deliver perpetual
consent to have sex with her husband after entering into marital relations.
While unwilling sexual contact between a husband and a wife is recognized as a
criminal offence in almost every country of the world.[5]As
per the Indian Penal Code, the instances wherein the husband can be criminally
prosecuted for an offence of marital rape are as under:
1. When the wife is
between 12 – 15 years of age, the offence is punishable with imprisonment upto
2 years or fine, or both;
2. When the wife is below 12 years of age, the
offence is punishable with imprisonment of either description for a term which
shall not be less than 7 years but which may extend to life or for a term
extending up to 10 years and shall also be liable to fine.
3. Rape of a judicially
separated wife, an offence punishable with imprisonment upto 2 years and a fine;
4. Rape of a wife above
15 years of age is not punishable.
Section 319 – Hurt Whoever causes bodily pain,
disease or infirmity to any person is said to cause hurt.
Section 320- Grievous Hurt The following kinds of
hurt only are designated as "grievous":- First- Emasculation.
Secondly- Permanent privation of the sight of either eye. Thirdly- Permanent
privation of the hearing of either ear and Fourthly- Privation of any member or
joint. Fifthly- Destruction or permanent impairing of the powers of any member
or joint. Sixthly- Permanent disfiguration of the head or face. Seventhly-
Fracture or dislocation of a bone or tooth. Eighthly- Any hurt which endangers
life or which causes the sufferer to be during the space of twenty days in
severe bodily pain, or unable to follow his ordinary pursuits.
Section 321- Voluntarily causing hurt Whoever
does any act to thereby cause hurt to any person, or with the knowledge that he
is likely thereby to cause hurt to any person, and does thereby cause hurt to
any person, is said: "voluntarily to cause hurt".
Section 322- Voluntarily causing grievous hurt
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows
himself to be likely to cause is grievous, and if the hurt which he causes
grievous hurt, is said: "voluntarily to cause grievous hurt."
Section 339- Wrongful restraint Whoever
voluntarily obstructs any person to prevent that person from proceeding in any
direction in which that person has a right to proceed, is said wrongfully to
restrain that person.
Section 349- Force A person is said to use force
to another if he causes motion, change of motion, or cessation of motion to
that other, or if he causes to any substance such motion, or change of motion,
or cessation of motion as brings that substance into contact that other's body,
or with anything which that other is wearing or carrying, or with anything so
situated that such contact effects that other's sense of feeling: Provided that
the person causing the motion, or change of motion, or cessation of motion,
causes that motion, change of motion, or cessation of motion in one of the
three ways hereinafter described.
Section 351- Assault Whoever makes any gesture,
or any preparation intending or knowing. it to be likely that such gesture or
preparation will cause any person present to apprehend that he who makes that gesture
or preparation is about to use criminal force on that person, and is said to
commit an assault.
Section 375-protects husbands from prosecution by
wives on charges of rape.[6] Rape A man is said
to commit "rape" who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the
six following descriptions:-
First- Against her will.
Secondly,- Without her
consent.
Thirdly- 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.
Fourthly- With her consent, when the man
knows that he is not her husband and that her consent is given because she
believes that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly - With her consent, when, at the
time of giving such consent, because of unsoundness of mind or intoxication or
the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
Sixthly - With or without her consent, when
she is under sixteen years of age.
3. Justice
Verma Committee Report (2013)
The Justice Verma Committee was established in
2012 in the aftermath of the Delhi gang-rape case to recommend changes to
criminal law that would allow for a faster trial and harsher punishment for
criminals accused of sexual assault against women. the Justice J.S. Verma
Committee, in its landmark report on gender laws, had recommended setting up of
an employment tribunal instead of an internal complaints committee (ICC) in
sweeping changes to the Sexual Harassment at the Workplace Bill.[7]The
Committee's report on marital rape was submitted on January 23, 2013, with the
following conclusions: "The IPC distinguishes between rape within
marriage and rape outside
marriage." Sexual intercourse without consent is banned under the IPC.
However, there is an exception to the crime of rape in the case of unconsented
sexual contact between a husband and his wife.The exception for marital rape
should be deleted, according to the Committee. Marriage should not be viewed as
a binding agreement to engage in sexual behaviours. As a result, the
relationship between the victim and the accused should not be relevant in
determining whether the complainant consented to the sexual conduct." The
panel based its findings on court rulings from around the world: "Our view
is supported by the judgement of the European Commission of Human Rights in
C.R. v UK, which endorsed the conclusion that a rapist remains a rapist
regardless of his relationship with the victim," the 630-page report
stated, slamming popular beliefs on the subject.
4. Criminal
Law (Amendment) Act (2013)
The Criminal Law
(Amendment) Act, 2013 (Nirbhaya Act) is an Indian law passed by the Lok Sabha
on March 19, 2013, and the Rajya Sabha on March 21, 2013, that amends the
Indian Penal Code, the Indian Evidence Act, and the Code of Criminal Procedure,
1973, to address laws relating to sexual offences. The 2013 Criminal Law
(Amendment) Act15 refuses to add marital rape in the IPC, and rape of a
separated wife by a husband still carries a reduced penalty. The exclusion for
rape committed by a man on his wife when she is over 15 years old remains in
the Act. Only rape perpetrated within the confines of a marriage when the
spouses are living apart is punishable. Not every 'non-consensual' sexual
conduct is rape, according to the law. Even though the wife and her husband are
no longer married, the law will be 'understanding' and 'lenient' towards him if
he rapes her because she was "formerly his wife.” This means that the Act
still views the wife as the husband's sexual property, rather than a person
with the same right to say "yes" or "no" to sex as any
unmarried woman. To protect women from sexual assault in marriage, this rule
needs to be seriously reconsidered. In this context, the government should
consult widely with women's organisations as part of its reform of rape and
sexual abuse laws and procedures.
5.The Protection Of Women From Domestic Violence Act (2005)
The Protection of Women
from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to
protect women from domestic violence. It was brought into force by the Indian
government and the Ministry of Women and Child Development on 26 October 2006.
The Indian Domestic Violence Act classifies marital rape as a type of domestic
violence that has a shorter prison sentence than non-marital rape. 17 In India,
this is the sole means to punish marital rape, and it is a civil rather than a
criminal procedure. If a woman has been the victim of marital rape, she can
seek judicial separation from her husband under this Act. A wife's sense of
uncertainty and anxiety is heightened when she is subjected to sexual assault
by her spouse. On the altar of marriage, her human rights are sacrificed.
However, this is simply a patchwork regulation with numerous loopholes.
However, the passage of particular domestic violence legislation has paved the
way for legislation criminalising marital rape since it reflects a shift in the
state's non-interventionist approach to family life. Spouse rape reflects
personal adversity. It’s not just about raping women Violation of their love
and trust, not just their bodies. Being sexually assaulted by her husband Wrap
them in a sense of anxiety and fear. Their human rights are sacrificed at the
altar. Before. Indian criminal law has treated this form of rape in a very
fragmented way. Various IPC provisions related to sexuality not only strengthen
Victorian morality but also Women's laziness. This makes it clear that the law
is considered the saviour of the victims. Inappropriate and inadequate to
protect the interests of those affected by spousal rape. The basic argument in
favour of these so-called "laws" is consent to marriage. In itself,
it includes consent to engage in sexual activity. But implicit consent to
engagement Engaging in sexual activity does not mean agreeing to be exposed to
sexual violence. It can often be felt It is considered that rape by a spouse
has been agreed upon by a woman, like sexual activity in sadomasochism.
violence. However, rape and sex cannot be distinguished by violence alone.
Violence creates fear and anxiety, which leads women to submit to sex and more.
It cannot be interpreted as consent to sex. This fear can be exacerbated by
their numbness. After fulfilling her husband's wishes. The difference between
consent and disagreement. Opposition is the basis of criminal law.
The Madras High Court in the case, Vandhana
v. T. Srikanth [8]further stated the Protection of Women from Domestic Violence
Act, 2005 “is an Act to provide for more effective protection of
the rights of women guaranteed under the
Constitution who are victims of violence of any kind occurring within the
family and for matters connected therewith or incidental thereto”.
Judicial Stand
Follow the history of a court ruling that a
husband has done serious harm to his wife. The court in the case of Queen-Empress
v. HareeMythee[9] found
that the law applies to married women. Rape does not apply between men and
women over the age of 15. Even if women exceed it After the age of 15, her
husband has no right to ignore physical integrity.It is a situation where
sexual intercourse is likely to be fatal. In this case, the husband Under
Article 338 of the Indian Criminal Code, was convicted of tearing his
11-year-old wife's vagina, causing bleeding and dying. In Emperor vs.
ShahuMehrab, her husband was convicted under Section 304A Indians Criminal law
to kill his child's wife by deliberate or negligent acts of sexual intercourse
In Sareetha vs. T. Venkata Subbaih,[10]
the Andhra Pradesh High Court held: “There can be no doubt that a decree of
restitution of conjugal rights thus enforced offends the inviolability of the
body and mind subjected to the decree and offends the integrity of such a
person and invades the marital privacy and domestic intimacies of a person” If
State-enforced sexual intercourse between husband and wife is a violation of the
right to privacy, surely a woman`s right to privacy is equally violated in case
of nonconsensual sexual intercourse with the husband. Rights and duties in a
marriage, like its creation and dissolution, are not the terms of a private
contract between two individuals. The right to privacy is not lost by marital
association. The Supreme Court, in the State of Maharashtra vs. Madhukar
Narayan Mandikar, has referred to the right of privacy over one`s body. In this
case, it was decided that the prostitute ha0d The right to refuse sexual
intercourse. Sadly, all the strangers are raped Becoming a criminal, all women
except her wife were given the right to privacy. Authorities withhold consent
and provide for the right to refuse sexual intercourse.
The recent case of
NimeshbhaiBharatbhai Desai v. the State of Gujarat,[11]2018
observed that a wife is not a chattel and a husband having sexual intercourse
with his wife is not merely using a property, he is fulfilling a marital duty
with a fellow human being with dignity equal to that he accords himself. He
cannot be permitted to violate this dignity by coercing his wife to engage in a
sexual act without her full and free consent. Furthermore, the Court urged that
the time is ripe that
the legislature
intervenes and goes into the soul of the issue of marital rape as it is a
serious matter which unfortunately is not attracting serious discussions at the
end of the Government. The Court however noted that as per the current legal
position the wife cannot initiate proceedings against her lawfully wedded
husband for the offence of rape punishable under Section 376 as the idea is
that, by marriage, a woman gives irrevocable consent to her husband to have sex
with her any time he demands it. The Bench however strongly stressed that
marital rape is not merely a concept and stated, “It is time to jettison the
notion of ‘implied consent’ in marriage. The law must uphold the bodily
autonomy of all women, irrespective of their marital status.”
Violation Of Fundamental Rights
The marital rape exception infringes Articles 14 and 21 of the
Constitution of India which guarantees the right to equality and equal
protection, and of the right to life and personal liberty. [12]Section 375 of the Indian Penal Code,
1860, states that sexual activity contrary to a man's free will or consent to a
woman constitutes rape. However, there are two exceptions to this. The first
exception states that "a medical procedure or procedure does not
constitute rape." In the second exception, "sexual intercourse or sexual
activity by a man with his wife" when a woman is 18 years of age or older
is not considered rape. This provision is under constitutional review. Marital
rape is not a criminal offence in India, but women can file proceedings under
other provisions of the Indian Criminal Code such as Cruelty and could also
file for a divorce. The exception placed "privacy of marriage as object
above private of an individual within the marriage," according to the
petitioner NGOs in the Delhi high court, violating multiple fundamental rights
given to married women, including Articles 15 and 19(1)(a) of the Constitution.
Exception limits a woman's ability to express herself sexually. A woman is not
allowed to express her desire to have sex with her husband. It not only denies
a married woman the freedom to say no, but it also denies her the ability to
express a joyful yes. The prosecution for grievance injury, cruelty, or other
violations for forced sexual intercourse could not replace the prosecution for
rape because a wife's permission and desire are reduced to a nullity." The
problem is that it has long been assumed that a marital relationship is
sacrosanct. Rather than forcing the wife to worship her husband's every whim,
especially sexually, mutual respect and trust are expected to flourish. Being
raped by a known person, such as a family member, is far more traumatic,
especially if you have to cohabit with him. How can the law overlook such a
flagrant breach of a married woman's fundamental right to her body, which is meant
to protect her from abuse?
Conclusion
The presumption of the
wife as the exclusive property of the husband is maintained by the continued
exclusion of marital rape from criminal law. Katherine O' Donovan put it this
way. It is believed that in India, marital rape should be criminalised, as this
may be accomplished by taking a rights-based approach to violence against
women. Although Indian women's organisations have succeeded in raising public
awareness and passing domestic abuse legislation, marital rape has not been
fully criminalised by eliminating the distinction between marital and stranger
rape. Marital rape, on the other hand, will not be criminalised or punished
until politicians and society recognise women's individual rights within
marriage. As previously stated, marital rape in India is not entirely
criminalised. It is undeniably a significant kind of violence against women,
deserving both public and governmental attention. Women who are raped by their
spouses are more likely to undergo several assaults and often suffer long-term
physical and emotional effects, according to research to date. Given the
devastating consequences, it is evident that marital rape should be made a
criminal offence. India is making progress toward positive legal reform for
women in general, but more work is needed to ensure both legal and social
change, which will lead to the criminalization of marital rape and a shift in
underlying cultural assumptions about women in marriage. Although the
Protection of Women from Domestic Violence Act protects most Indian women, it
has many flaws, including the fact that it does not explicitly prohibit marital
rape. However, the passage of particular domestic violence legislation has
paved the way for legislation criminalising marital rape because it would
reflect a shift in the state's non-interventionist approach to family life. Man
and society have mistreated women in the past and continue to do so today. It
is necessary to recognise her as a human being, move away from the outdated
image of her being a mere property, and treat her with the respect and dignity
she deserves. Marriage has been viewed as a licence to legalise unwilling sex
by patriarchal power institutions. There is a total negation of the self-worth
of a woman.
[1]SangamithraLgananthan, More at Legal services India, “Marital
Rape”, (June28,2012), http://www.legalservicesindia.com/article/2369/Marital-Rape.html
[2]Dr.Bhavish
Gupta &Dr.Meenu Gupta, More at Journal of Galgotias University, Marital
Rape,(August 21,2013),https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf
[3]Dr.Bhavish
Gupta &Dr.Meenu Gupta, More at Journal of Galgotias University, Marital
Rape,(August 21,2013), https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf
[4]:
The African Population and Health Research Center, More at Policy brief The
African Population and Health Research Center,” Marital Rape and its Impacts: A
policy briefing for Kenyan Members of Parliament” , (May 8, 2010), https://assets.publishing.service.gov.uk/media/57a08b20ed915d3cfd000b4e/aphrc-brief13.pdf
[5]Sarthak Makkar, More at Harvard
Human Rights Journal, ”Marital Rape: A Non Criminalized Crime in India”,
(January 1, 2019),
https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
[6] Vageshwari Deswal, More at
Times of India, Marital Rape,(February 12, 2022),https://timesofindia.indiatimes.com/blogs/legally-speaking/marital-rape-demystifying-consent-within-marriage/
[7]Jagriti Chandra, More at The Hindu,Marital Rape,(OCTOBER 15, 2018),
https://www.thehindu.com/news/national/2013-justice-verma-panel-report-wanted-changes-to-sexual-harassment-law/article25221588.ece
[9]Queen-Empress v. HareeMythee (1890)
[10]Sareetha vs. T. Venkata Subbaih (1983), SCC (India)
[11]NimeshbhaiBharatbhai Desai v. the State of Gujarat (2018),
SCC(India)
[12] SoumaliRoy,More at ipleaders,
“Marital Rape”,(April22,2021),https://blog.ipleaders.in/marital-rape-review-rights-women/