Open Access Research Article
"A COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK AND SOCIETAL PERCEPTIONS OF MARITAL RAPE IN INDIA AND OTHER COUNTRIES"
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Article Details
"A
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK AND SOCIETAL PERCEPTIONS OF MARITAL
RAPE IN INDIA AND OTHER COUNTRIES"
AND BALJINDER SINGH[2]
ABSTRACT
The phenomenon of marital rape is a
prevalent but insufficiently examined matter in present-day society,
distinguished by a multifaceted interaction of legal, cultural, and social
elements. This research article aims to perform a complete comparative analysis
of the legal frameworks and public perspectives pertaining to marital rape in
four unique jurisdictions, namely India, the United Kingdom (UK), the United
States of America (USA), and Australia.
This study examines the historical
progression of legislation pertaining to marital rape across several countries,
emphasizing significant legislative landmarks and modifications. Through a
comprehensive analysis of legal laws, this study reveals discrepancies in the
conceptualizations, criminalization, and sentencing of marital rape, thereby
illuminating the heterogeneous strategies adopted by different countries in
tackling this particular manifestation of sexual violence inside the
institution of marriage.
Moreover, this study delves into the
cultural attitudes and beliefs surrounding marital rape throughout the
aforementioned countries. It accomplishes this by utilizing an extensive array
of qualitative and quantitative sources, such as surveys, interviews, and
public opinion data. This study examines prevalent myths, assumptions, and
cultural norms that play a role in the continuation of marital rape and impede
survivors' ability to seek legal recourse.
The conducted comparative research
highlights significant differences among the nations under study, demonstrating
varied levels of legislative safeguards and cultural understanding pertaining
to the issue of marital rape. This statement highlights the significance of
implementing legal reforms, educational programs, and awareness campaigns as
means to challenge existing societal standards and enhance the assistance
available to survivors. This research seeks to contribute to a global discourse
on the eradication of marital rape and the promotion of gender equality and
human rights globally by examining the merits and limitations of each country's
approach.
KEYWORDS- Marital Rape, Legal Framework, Societal Perceptions,
Comparative Analysis, Gender-based Violence, Sexual Assault, Consent in
Marriage, Human Rights, Gender Equality and Human Dignity.
INTRODUCTION
Marriage is often considered one of
the most sacred and intimate bonds between individuals, founded on love, trust,
and mutual respect. However, hidden beneath this idealized concept of matrimony
lies a stark reality that has long evaded the spotlight – the issue of marital
rape. This deeply contentious and sensitive topic, shrouded in societal
perceptions and legal intricacies, has become a focal point of discourse and
activism in numerous countries around the world. In the context of intimate
relationships, marital rape refers to the act of sexual intercourse without the
explicit and voluntary consent of one's spouse. It is a violation that transcends
borders, affecting countless lives and provoking debates on individual rights,
gender equality, and the very essence of marriage itself.
The term 'Rape' finds its origins in
the Latin word 'rapio,' which translates to 'to seize.' Its literal
interpretation can be described as a forcible seizure. Furthermore, it can be
defined as the non-consensual or coerced violation of a woman, obtained under
duress, deceit, fear, or through forced sexual intercourse.[3]
Marital Rape is not a newly coined term; its existence can be traced back to
the inception of marital unions between men and women. In earlier times, when
societies were predominantly male-dominated, women had minimal rights to
safeguard their dignity and integrity. They were often perceived as objects meant
solely to fulfill the sexual desires of men.
This ideology persisted in numerous
parts of the world, including India, where marital rape remains uncriminalized
due to the perception that the husband-wife relationship somehow exempts it
from legal consequences. India is among the countries that have yet to
criminalize marital rape, even years after enacting Penal Codes that classify
rape as a criminal offense.
The concept of marital rape gained
recognition when it was realized that it falls within the parameters outlined
for rape. Some countries, such as England, Poland, Canada, Australia, and the
USA, have subsequently criminalized marital rape. In India, this issue has
sparked a contentious debate. The conflict revolves around two opposing
viewpoints regarding Marital Rape.
One perspective asserts that marriage
itself implies consent for sexual intercourse, while the opposing viewpoint
contends that rape should be treated as such regardless of the relationship
between individuals. According to this perspective, consent plays a pivotal
role in defining rape, even within the confines of marriage.
Throughout this paper, we will delve
into this ongoing conflict, discussing what should be deemed legally acceptable
within the current framework of Indian law and order.
EVOLUTION OF RAPE LAWS:
The historical origins of rape laws
can be traced back to approximately 1900 BC in the ancient city of Babylon.
According to the Hammurabi Code, engaging in non-consensual sexual intercourse
with a married lady or a virgin under the protection of her father would result
in the imposition of capital punishment upon the perpetrator. From a historical
standpoint, it becomes evident that women were perceived as objects owned by
either their fathers or husbands, with rape being regarded as an affront to a
man's reputation rather than a direct harm inflicted upon the lady in question.
Historically, women who experienced rape were frequently stigmatized and
perceived as morally compromised, rendering them undesirable for marriage. This
perception can be attributed to the prevailing notion that rape was comparable
to the act of appropriating or defiling another man's possession.
Significantly, within this particular
paradigm, the act of engaging in non-consensual sexual intercourse with one's
own spouse was not considered to meet the legal definition of rape. The
redefinition of rape in English law as non-consensual sexual intercourse with
any woman above the age of 10 years occurred throughout the 1600s. Likewise,
within the United States, the act of rape was delineated as the engagement in
non-consensual sexual intercourse with a female individual who was not the
perpetrator's spouse, accomplished through the exertion of force and in direct
opposition to the victim's volition. The aforementioned legal modifications
highlight the prevailing perception of rape as primarily constituting a
criminal offense in cases where it transpired beyond the bounds of matrimony.
In order to establish a case of rape, it was imperative to provide evidence
demonstrating both the presence of force and the lack of consent. In the
context of legal proceedings, the woman bore the burden of proof, and her
recognition as a victim was contingent upon the unmistakable establishment of
the accused man's guilt in relation to the charge of rape.[4]
The second wave of the feminist
movement was essential in enabling women to address the various forms of
injustice they encountered, so fostering their empowerment. Commencing in the
latter part of the 1960s, women initiated a process of open dialogue regarding
their encounters with sexual assault and other distressing occurrences within
intimate assemblies commonly referred to as consciousness-raising groups.
Furthermore, they orchestrated public demonstrations and processions as a means
to address the issue of sexual assault, while also establishing specialized
facilities known as rape crisis centers to offer comprehensive assistance and
therapeutic services to individuals who have experienced rape.
One of the key aims of feminists
advocating against sexual assault was to initiate legal changes. Consequently,
a collective of individuals advocating for gender equality, spearheaded by the
National Rape Task Force, undertook a steadfast endeavor to reframe the legal understanding
of rape as an act of violence. The diligent endeavors of individuals yielded
positive outcomes in 1974, as Michigan and subsequently other states undertook
revisions to their rape legislation. These revisions aimed to provide a more
comprehensive and encompassing definition of rape, encompassing the prohibition
of marital rape as well.[5]
In past, the concept of rape was legally
defined as non-consensual sexual intercourse with someone other than the
accused's wife, the phenomenon of marital rape did indeed exist in the past.
However, it remained largely unacknowledged by both society and the victims
themselves.
During earlier periods, prevailing
societal norms often regarded a wife as the property of her husband, and it was
commonly expected that she fulfil her marital duty by engaging in sexual
intercourse with him. Consequently, wives often did not recognize or
acknowledge instances
of sexual coercion or violence within
marriage as rape. Even if husbands forced themselves upon their wives or
resorted to physical abuse, many women believed that they were obliged to
endure such treatment. So, while the concept of marital rape did exist
historically, it went largely unrecognized due to prevailing social ideologies
of the time.[6]
HISTORY OF RAPE LAWS IN INDIA:
In the annals of Indian history, the
occurrence of rape is not a recent development. This heinous crime against
women has existed for ages, with its roots extending deep into the past. The
notion of holding rapists accountable for their actions can be traced back to
ancient times, as evident in the narratives of the Ramayana and Mahabharata.
Similarly, within the framework of Islam, rape has been deemed a serious
transgression, with penalties ranging from death to the harsh punishment of
stoning for the offender.
Throughout ancient and medieval
epochs, society acknowledged the existence of rape and established mechanisms
for its retribution. As the modern era dawned, it saw the adoption of legal
norms, notably those instituted by the British under the Indian Penal Code of
1860, designed to prosecute and penalize those guilty of rape.[7]
The status of married women was not
always unfavorable. In fact, during the Vedic Era (approximately 4000 BC to
1000 BC),[8]
newly wedded women held a respected position in their new households, as seen
in the Rigveda. However, as time passed, their dignity and respect began to
erode. They came to be expected to unquestionably obey their husbands and
assume a subordinate role.
During the Smriti Period (600 BC to
AD 200), conditions further deteriorated, with the emergence of harmful
practices such as sati pratha, dasi pratha, polygamy, and child marriage.
Additionally, during the medieval period, women were often required to wear
veils, and there were strict controls imposed on their sexuality to maintain
caste purity.
Under Muslim Law, marriage was
treated as a civil contract that could be dissolved, and divorce procedures
were relatively straightforward. This constant fear of divorce made women
subservient to their husbands, who exercised complete authority over their
autonomy.
As a result, there persists a perception
that marriage grants the husband perpetual consent for sexual intercourse at
his discretion, while the wife is sometimes viewed as merely a means for
producing children, with her own willingness and rights regarding bodily
integrity and reproductive consent often disregarded and dismissed as
unfounded.[9]
MARITAL
RAPE PROVISIONS IN INDIA AND OTHER COUNTRIES
ENGLAND
India has exclusively adopted its
Penal Code from England. Under UK law, marital rape is classified as a form of
sexual assault, in violation of the Sexual Offences Act of 2003. Prior to 1992,
marital rape was not deemed illegal, allowing husbands to enforce conjugal
rights on their wives without their consent. However, in 1991, the case of R
v. R[10]
prompted a pivotal question in the House of Lords, composed of five lords: Can
a man rape his wife?
In the case of R v. R, the appellant
had married on August 11, 1984, but due to matrimonial disputes, his wife left
the marital home and moved in with her parents on October 21, 1989. She
expressed her intention to divorce through a letter upon leaving. Later, the
appellant also indicated his desire for a divorce. On November 12, 1989, the
appellant entered his wife's residence and attempted to engage in sexual
intercourse against her will and without her consent. He further assaulted her
when she continued to refuse. This raised the fundamental question before the
court: Does marriage imply consent to sexual intercourse, even without further
explicit consent? Can a husband be held accountable for raping his wife?
The court ruled that there had never
been an exemption for marital rape in English common law, nor did it exist in
English law. Consequently, the appellant was convicted of raping his wife. He
received a three-year prison sentence for attempted rape and an additional
eighteen-month sentence for sexual assault.
Prior to the R v. R judgment,
husbands were not prosecuted for marital rape.[11]
This landmark ruling exemplifies the evolution of the common law system,
adapting to developments in social, cultural, and economic realms. Before this
judgment, husbands could subject their wives to sexual servitude, much like in
cases involving prostitutes. Marital rape is also considered a form of domestic
violence. Today, individuals found guilty of marital rape face imprisonment
ranging from four to nineteen years, depending on the specifics of the case.
The maximum penalty that can be imposed in such cases is life imprisonment.
Australia
During the 1970s, a number of
Australian states initiated a series of reforms with the objective of examining
and modifying existing legislation pertaining to sexual offenses, specifically
focusing on rape. The Mitchell Committee[12]
was founded in 1975 with the primary aim of lobbying for reforms in sexual
offenses and rape legislation. The report issued by the committee made a
significant comment, stating that the concept of consent within the context of
marriage, once granted, should not be considered permanent. This viewpoint was
perceived as disconnected from current intellectual trends. In contemporary
society, it is widely acknowledged that it is no longer considered socially
acceptable to maintain the belief that a wife is obliged to participate in
sexual intercourse with her husband solely based on his desires, without taking
into consideration her own wishes and permission. In cases where a wife
experiences victimization due to her husband's sexual cravings, it is
imperative that family law provides her with the necessary safeguards, enabling
her to pursue separation from her spouse and establish a life free from harm
and disturbance. In situations where a woman has chosen to separate from her
spouse and is residing separately, engaging in non-consensual sexual
intercourse should not absolve the offender from being legally charged with the
crime of rape.
In October of 1976, legislation was
proposed by Mr. Peter Duncan[13],
representing a noteworthy advancement in accordance with the suggestions put
out by the Mitchell Committee. The aforementioned legislation effectively
eliminated the previously existing provision that provided legal protection to
husbands, so rendering them immune from prosecution in cases of spousal rape.
There has been a contention advocating for the abolition of laws that see a
wife as the property of her husband, and instead, advocating for the universal
entitlement of every adult individual to exercise the right to give or withhold
consent for engaging in sexual intercourse, regardless of marital status.
Subsequently, rape cases that
involved violence, threats of violence, acts of gross indecency, and other
related offenses were incorporated within the purview of rape laws. Initially,
this change was confined to South Australia, but ultimately, it was adopted
across all jurisdictions in Australia.
Australia, being comprised of seven
distinct federal states, each having its own set of federal laws, led to
variations in punishments for different types of criminal activities occurring
within their respective states. Marital rape, meeting all the criteria of rape,
was penalized with varying degrees of severity, contingent upon the gravity of
the offense. The maximum imprisonment term for such cases was set at 15 years,
except in instances where the victim was under 15 years old, in which case a
20-year sentence could be imposed. Perpetrators whose actions resulted in the
death of victims faced imprisonment for up to 30 years.
U.S.A
In the United States, prior to the
1970s, there was a legal exemption for Marital Rape, which excluded it from the
scope of rape legislation in certain states. The United States of America is
composed of fifty individual federal states, each possessing its own unique set
of federal laws. During the seventeenth century, Chief Justice Matthew Hale put
out the legal argument that the concept of rape inside the institution of
marriage was legally untenable, as it was often considered to involve agreement
that could not be retracted. The concept of irrevocable consent suggests that
males held an unrestricted authority over their wives in terms of sexual
encounters within the institution of marriage, so establishing a loophole that
exempted marital rape from legal consequences.
In 1857, a significant event
transpired in Massachusetts whereby a legal case[14]
marked the initial recognition and handling of Marital Rape as an exemption
within the framework of rape legislation in the United States. During that
period, it was widely considered to be extremely difficult to conceive of a
scenario where a spouse would face legal prosecution for the heinous act of
rape inside the confines of a marital relationship. The aforementioned
viewpoint was perceived as significantly more disruptive than the actual
action. The women's movement that emerged in the 1970s played a major role in
effecting legislative changes, although encountering significant challenges
inside male-dominated legislative bodies. The movement first focused on the
repercussions of non-consensual sexual activity within marriage resulting in
pregnancy. Nevertheless, this viewpoint received backing from both ethical and
legal perspectives, and gradually developed to underscore women's inherent
entitlements to possess and govern their own physical beings[15].
In 1976, Nebraska became the first
among the fifty states to criminalize Marital Rape. By 1993, Marital Rape had
been criminalized in all 50 states of the United States of America. Many states
made no distinction, as they rightly shouldn't, between marital and non-marital
rape, regardless of the relationship between the accused and the victim. After
Nebraska's groundbreaking move, other states followed suit, either through the
passage of bills in favor of criminalizing marital rape, recognizing women as
independent individuals, or through court cases that ruled in favor of women
and set a precedent for subsequent marital rape cases.
For instance, in South Carolina,
those convicted of first-degree rape, including marital rape, faced a maximum
sentence of thirty years in prison. Meanwhile, individuals found guilty of
first-degree assault and battery received a maximum sentence of ten years'
imprisonment. Notably, the punishment for rape and marital rape remained the
same, irrespective of the relationship between the man and the woman involved.[16]
INDIA
In India, Marital Rape is not
considered a criminal offense, and it is allowed for anyone to engage in
non-consensual sexual intercourse with their spouse, as per the current legal
framework. This situation is profoundly ironic when we consider how society
focuses on ensuring women's safety in public spaces like streets and malls but
often neglects the equally pressing issue of violence against women within
their homes. Despite the existence of the Domestic Violence Act of 2005, which
offers some protection to women facing abuse in their households, Marital Rape
is conspicuously absent from its scope.
According to the United Nations
Population Fund, more than two-thirds of married women between the ages of 15
and 20 in India are subjected to various crimes within their marriages,
including forced sex, physical abuse, and dowry-related demands. Many countries
have recognized the gravity of Marital Rape as a crime and have criminalized it
independently of the marital relationship. However, India has not followed
suit. Instead, Indian law erroneously maintains that marriage itself implies
perpetual consent to sexual intercourse, effectively denying women the right to
refuse it. This distinction between rape and consensual intercourse hinges on
the crucial factor of consent.
It is imperative to emphasize that
while marriage may imply consent to sexual relations, it should not strip women
of their right to say no. Denying women this fundamental right shields husbands
from being held accountable for non-consensual and unwelcome sexual acts within
marriage.[17] Under
Section 375 of the Indian Penal Code, sexual intercourse by a man with his
wife, provided she is not below 15 years of age, is not legally considered
rape. Consequently, Marital Rape remains an exception under the Domestic
Violence Act of 2005, leaving women without legal recourse.
One of the most alarming trends is
the increasing number of Marital Rape victims, yet the legislative framework
remains indifferent by failing to criminalize this offense. There persists a
misguided belief that women may falsely accuse men of rape, a heinous crime
that tarnishes the accused's reputation, causing humiliation and distress. If
false allegations were the primary concern, then adultery should also remain a
criminal offense.[18]
In general, no woman would willingly tarnish her own dignity, and prosecuting a
victim can have detrimental effects on her reputation.
In the case of Saretha v. T.
Venkata Subbaih[19],
it was established that the rights and duties within a marriage are not merely
the terms of a private contract between two individuals; instead, they
represent the creation and dissolution of a union. Privacy should not be
forfeited within the bounds of marital association. Unfortunately, this
perspective has led to the absence of punishment for Marital Rape, perpetuating
a system where women are considered mere property of their husbands, devoid of
rights within the marriage beyond fulfilling their spouse's sexual desires.[20]
THE
PROGRESS MADE SO FAR AND THE CURRENT POSITION OF LAW RELATING TO MARITAL
RAPE IN
INDIA.
The legal law pertaining to marital
rape in India, namely Section 375, Exception 2[21],
establishes differential treatment based on the marital status of the victim in
relation to the perpetrator. According to the provisions outlined in this
section, the act in question does not meet the criteria for being classified as
rape if the victim is legally married to the accused. Furthermore, this
component of the study distinguishes between an adolescent female, aged 15-18,
who is married to the alleged perpetrator and another adolescent female within
the same age range who is not married to the alleged perpetrator.
According to Clause 6[22]
of Section 375 in the Indian Penal Code (IPC), the perpetration of any conduct
coming within the purview of Clause (a) to (d)[23]
of Section 375, by a male individual in relation to a female individual below
the age of 18 years, is deemed to constitute an instance of rape, irrespective
of the consent provided by the female individual. In such instances, it is
established that the permission of a female individual who is below the age of
18 holds no significance, resulting in the classification of the conduct as
rape. Nevertheless, it is important to note that in certain contexts, the act
of sexual intercourse between a married girl aged 15-18 is not legally
classified as rape, regardless of her level of consent.
The resolution of this debate
occurred in a recent ruling by the Supreme Court of India, namely in the case
of Independent Thought v. Union of India[24].
The court rendered a verdict declaring that Exception 2 contravened Articles
14, 15(3), and 21 of the Indian Constitution, in addition to Clause 6 of
Section 375. Furthermore, it was discovered that the aforementioned action was
incongruous with both the Hindu Marriage Act of 1955 and the Protection of
Children from Sexual Offences Act of 2012. As a result, the aforementioned
clause was invalidated, leading to a reinterpretation of Exception 2. The
revised interpretation states that engaging in sexual intercourse or sexual
actions between a man and his spouse is not considered rape if the wife is
beyond the age of 18. Nevertheless, the aforementioned case failed to tackle
the matter with adult women, aged 18 and above, who experience sexual assault
perpetrated by their spouses.
In the year 2022, the High Court, in
the case of RIT Foundation v. Union of India[25],
rendered a decision declaring the provision of exemption 2 to section 375,
which previously provided immunity for marital rape of kids aged 15-18, as
unconstitutional. Consequently, the age limit specified in the exemption,
originally set at 15 years, must now be interpreted as 18 years. Presently, the
absence of legal sanctions exists in cases of marital rape involving adult
wives.
Currently, a husband can only be
guilty of raping his wife if she is under 18 years of age. Apart from this,
under the IPC, there is a provision that states sexual intercourse by a husband
upon his wife who is living separately, whether due to a separation decree or
other reasons, without her consent, shall be punishable with imprisonment
ranging from 2 to 7 years.[26]
This provision applies when the husband and wife are living separately. In all
other cases, when they are married and living together, and the wife is above
18 years of age, husbands are exempt from being held guilty of raping their
wives.
India remains among the select few
nations globally where marital rape remains uncriminalized[27].
Regrettably, despite multiple amendments to criminal law aimed at safeguarding
women's rights, the status of women concerning marital rape within our country
raises doubts about their dignity and bodily autonomy. Under the current
framework, women are assumed to have granted perpetual consent to sexual
activity with their husbands upon entering the institution of marriage,
implying an inherent consent. It is indeed disheartening that our nation is one
of the minority in the world where a married woman lacks control over her own
body and sexual independence.
CONFLICTING ATTITUDE AND OPINIONS OF
THE INDIAN JUDICIARY:
In the case of Nimesh Bhai
Bharatbhai Desai v. State of Gujarat[28],
the High Court of Gujarat affirmed that a husband does not possess ownership
rights over his wife's body. She retains her inherent human right to exclusive
autonomy over her own body even after marriage. Consequently, she has the legal
authority to give or withhold consent for marital intimacy at any time.
However, it is noteworthy that in our
country, the only recourse available to victims of marital rape is the civil
remedy provided by the Protection of Women from Domestic Violence Act or
Section 498A of the Indian Penal Code, which deals with subjecting a woman to
cruelty by her husband or his relatives. In contrast, several countries
worldwide, such as Sweden, Norway, Denmark, Poland, and the Czech Republic,
have criminalized marital rape and established stringent laws addressing this
issue[29].
While some nations are actively amending their laws to address this concern,
India seems hesitant to embrace change in this regard.
In the case of Arnesh Kumar v.
State of Bihar[30],
the judiciary expressed concerns that criminalizing marital rape could
potentially disrupt the social and family structures. Consequently, the
judiciary occasionally exhibits a progressive stance on this issue, but at
other times, it appears conservative in its approach.
The Delhi High Court[31]
issued a divided verdict regarding the criminalization of marital rape inside
the nation. Justice Rajiv Shakdher invalidated the prevailing legislation on
grounds of unconstitutionality, noting that the fundamental right to revoke
consent constitutes the essence of women's entitlement to life and personal
freedom. Justice C. Harishanker declined the petition to criminalize marital
rape, emphasizing that the responsibility for amending the law lies with the
legislature, as the matter necessitates a comprehensive examination of multiple
dimensions, encompassing social, cultural, and legal considerations. The
constitutional bench of the Supreme Court, consisting of Chief Justice D.Y.
Chandrachud, Justice P.S. Narasimha, and Justice J.B. Pardiwala, will now
preside over the case.
Even the executive branch often
appears reluctant to criminalize marital rape. The Union government has
expressed fears that such a move could destabilize and undermine the
institution of marriage and may be susceptible to misuse.
As of now, the available legal
remedies for women who are victims of marital rape in India are Section 498A of
the Indian Penal Code and the Domestic Violence Act of 2005.
THE DATA IS
CONCERNING.
The lack of legal safeguards against
marital rape in India is a pressing issue pertaining to women's rights. This
concern is underscored by data from the third (2005-06) and fourth (2015-16)
iterations of the National Family Health Survey (NFHS), which indicate that the
incidence of Intimate Partner Violence (IPV) against women varies between 3%
and 43% across different states within the nation. The survey's fifth
iteration, conducted over the 2019-20[32]
period, encompassed a substantial sample size of around 637,000 households
across 707 districts in 28 states and eight union territories in India. The
findings indicate that a significant proportion of women aged 18-49,
specifically one in three, encounter spousal abuse. Moreover, a minimum of
5%-6% of these women disclose instances of sexual assault. The survey conducted
by the National Federation of High Schools (NFHS) revealed a significant
correlation between sexual and physical violence, leading to the inclusion of
marital sexual violence under the broader category of spousal violence. An
analysis of the results reveals that 5.6% of married women experienced
non-consensual sexual intercourse with their spouses due to physical coercion,
2.7% of women were subjected to unwanted sexual activities through physical
force, and 3.7% of women were coerced into engaging in sexual activities
against their will by means of threats of physical harm.[33]
CONCLUSION
Hence, it is evident that the
criticism and demands for the repeal of the marital rape exemption have
persisted for an extended period. Various efforts have been undertaken by
feminists, organizations, and at times even the judiciary. However, it remains
disheartening that this exemption still endures. While much rhetoric surrounds
women's rights, bodily autonomy, sexual self-determination, dignity, and
self-respect, the actual implementation of substantial change is perpetually
postponed for the future. Numerous justifications are put forth to maintain the
exemption, while the relentless efforts and appeals of feminists and women's
rights activists persist.
Marital rape stands out as one of the
most heinous crimes against women, wherein a woman's body is treated as the
property of her husband and exploited according to his whims. Many countries
around the world have already criminalized it, focusing on the critical element
that distinguishes rape from consensual sexual intercourse: consent. In
countries like the USA, and England, this simple fact is enough to render a
husband guilty of rape.
In the context of India, marriage is
traditionally regarded as a sacred bond deeply ingrained in societal
consciousness. Unfortunately, marital rape, despite fulfilling all the
essential criteria of a crime, continues to evade classification as such. Here,
the sanctity of the marital relationship is prioritized over human dignity, the
inhumane nature of such acts, and even legal principles.
The time has come for a broader
understanding of marriage, one that redefines the meaning of marriage as
perceived by husbands. Indian jurisprudence must expand its horizons and
address crimes that run counter to the principles of Indian Constitutional
Jurisprudence.
[1] Ph.D. Scholar At National Law
University, Delhi
[2] Ph.D. Scholar At National Law
University, Delhi
[3] Bhupinder Sharma v. State of
Himachal Pradesh, AIR 2003 SC 4684
[4] Brooke Flagler, A Brief History of
rape law, The Feminist Poetry Movement (Dec 13, 2019),
[5] ibid
[6] Gelles, Richard J. “Power, Sex,
and Violence: The Case of Marital Rape.” 26.(4.) The Family Coordinator 339,
339-347 (1977).
[7] Pamini Kasera, A Historical
Analysis of Rape Laws in India, SSRN (June 5, 2020),
https://ssrn.com/abstract=3619807.
[8] Rigveda. X.85.49.
[9] Anjali Kant, Women and the Law,
26-27 (1997)
[10] R v. R, 1991 1 AC 599.
[11] S v. HM Advocate, 1989 S.L.T. 469;
R. v J [1991] 1 All E.R. 759 Independent, January 3, 1991, Guardian, January
18, 1991
[12] Criminal law and penal methods
reform committee of south australia, Special Report – Rape and Other Sexual
Offences (1976, Government Printer, Adelade, South Australia)
[13] South Australia Legislative
Council, Parliamentary Debates, Peter Duncan, Attorney-General (9th November
1976) pp 1942-1943
[14] Weishaupt v. Commonwealth, 315
S.E. 2nd 847 (Va. 1984)
[15] Free Speech: Report of Ezra H. Heywood’s
Defence Before the United States Court in Boston, April 10, 11 and 12, 1883, at
16
[16] S.C. Code § 16-3-652, criminal
sexual conduct in the first degree; S.C. Code 16-3-600(C)(1), assault and
battery in the first degree
[17] KI Vibhute, Rape within Marriage
in India, 27 Indian Bar Review 167 (2000).
[18] Narendra Kumar v. State (NCT of
Delhi), AIR 2012 SC 2281
[19] AIR 1983 AP 35
[20] To Have and To Hold, The Marital
Rape Exemption and Fourteenth Amendment, 99(6) Harvard Law Review 1256 (1986)
[21] (Exception) —Sexual intercourse by
a man with his own wife, the wife not being under fifteen years of age, is not
rape.]
[22] (Sixthly) — With or without her
consent, when she is under sixteen years of age. Explanation. - Penetration is
sufficient to constitute the sexual intercourse necessary to the offence of
rape.
[23] 375. 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.
[24] writ petition W.P.(C) 382/2013
[25] 2022 SCC OnLine Del 1404...
https://www.scconline.com/blog/post/2023/01/06/analysing-the-delhi-high-courts-approach-towards-presumption-of-constitutionality-in-marital-rape-case-rit-foundation-v-union-of-india-a-case-comment/
[26] Indian Penal Code, 1860, s. 376B.
[27] Marital Rape in india, Drishtiias
(Dec 22, 2020) https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in india
[28] 2018 SCC OnLine Guj 732, [104] 62.
[29] The Current Legal Framework on
Marital Rape in India, Helpline Law,
https://www.helplinelaw.com/family-law/CLFM/thecurrent-legal-framework-on-marital-rape-in-india.html
Last Accessed July 3 2021
[30] Cr. Appeal No. 1277 of 2014
(SLP(CRL.) No. 9127 of 2013)
[31] Supra Note 25
[32] https://main.mohfw.gov.in/sites/default/files/NFHS-5_Phase-II_0.pdf
[33]
https://www.equalitynow.org/news_and_insights/a-ruling-on-marital-rape-in-india-is-coming-up-heres-why-you-should-be-watching-closely/
Article Information
"A COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK AND SOCIETAL PERCEPTIONS OF MARITAL RAPE IN INDIA AND OTHER COUNTRIES"
Authors: GAURAV CHAUDHARY, BALJINDER SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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