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MARITAL RAPE: A CRITICAL ANALYSIS IN THE PURVIEW OF INDIA AND COMPARISION WITH OTHER COUNTRIES
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MARITAL RAPE: A CRITICAL ANALYSIS IN THE
PURVIEW OF INDIA AND COMPARISION WITH OTHER COUNTRIES
AUTHORED BY
- SHRUTI YADAV
ABSTRACT
The study
examines the urgent problem of marital rape in India and sheds light on the
ethical, societal, and legal implications of this grave situation. It draws
attention to India's current legal system, which exempts marital rape from
prosecution and contrasts it with international norms that acknowledge the
seriousness of this violation of consent inside marriage. In the paper, the
urgent necessity to criminalise marital rape in India is emphasised, and a
thorough justification is provided based on international precedents, human
dignity, and constitutional rights. It potrays the harm done to victims'
physical and mental health and claims that failing to provide justice to
survivor’s feeds gender inequity and prejudice. Along with cultural values,
complex legal issues, and political opposition, barriers preventing the
criminalization of marital rape are also looked at. The government's policy of
protecting marital peace at the expense of women's rights is criticised in the
article. The discussion also covers recent judicial developments, particularly
the conflicting opinions held by the Delhi High Court, which paves the way for
the Supreme Court's upcoming consideration of the issue. It also contrasts
India's position on marital rape with that of other nations, emphasising the
need for a thorough legal system to safeguard victims. The article concludes by
urging quick action to make marital rape a crime, highlighting the importance
of legislation in resolving this pervasive problem, and promoting
gender-sensitive laws.
Key words: Marital rape, Human rights, Gender
discrimination, Sexual abuse, Marriage.
INTRODUCTION
“One
religious woman even suggested I stay with him, but turn off all my senses and
treat him only as a pay check. All I could say in response was, “What you’re
describing to me is prostitution”.” This was quoted by Reham Khan, a
renowned British-Pakistani journalist, embodying the gravity of marital rape.
According
to section 375 of the Indian Penal Code, rape is when a man has sex with a
woman against her will. Then again, Section 375 does not classify engaging in
sexual activity with a wife without her consent as rape. On the other hand,
Section 375's Exception 2 exempts unwilling sexual intercourse between a
husband and a wife who is over the age of fifteen from the definition of
"rape," shielding such conduct from legal action. In India, violating
sections 375 and 376 of the Indian Criminal Code results in punishment for rape
by an outsider. Strangely, it explicitly precludes marital rape from being
punishable by law. When a husband has sexual contact with his wife against her
will or under coercion, it would come under the purview of marital rape.
Any sexual
act carried out within the bounds of a marriage is not regarded as criminal
because it is a religious event. Rape is defined as sexual activity or sexual
penetration that occurs without consent. As a result, proving rape requires
establishing that consent was not given. Typically, the burden of proof rests
with the victim to show that there was no consent. For instance, minors are
legally seen as not being able to consent to such conduct, hence consent is
improbable. Yet, when the victim and the criminal are married, consent is
frequently taken for granted.
A woman is
thought to give her husband her eternal consent to have sex with her after
entering into matrimonial relations. While almost every country in
the world considers unwelcome sex between a husband and wife to be a crime,
India is one of the 36 nations that has not yet made marital rape a crime. The
validity of this provision is the subject of numerous writ petitions before the
Supreme Court of India and other High Courts, and the Supreme Court recently
made a landmark decision-making unwelcome sex with a wife between the ages of
fifteen and eighteen illegal. As a result of this decision, more writs
contesting the general validity of Exception 2 have been submitted. The
legitimacy of Exception 2 is examined in this article in light of recent
judicial proceedings. This article also aims
to provide an in-depth analysis of marital rape, focusing specifically on India
and comparing its situation to other countries. By examining the legal aspects,
prevalence, cultural factors, and the role of international human rights in
addressing marital rape, we can gain a comprehensive understanding of this
widespread problem.
REALITY OF MARITAL RAPE IN INDIA
Rape is a
serious breach of a person's fundamental right to life and individual freedom;
it is more than just violence against women. Due to the connection between the
victim and the criminal, nothing changes. The notion that having sex with your
spouse is a privilege granted to the husband by marriage is therefore untrue.
Because it silences a woman's voice against her husband, who uses her position
to his advantage and breaches her trust and sense of
self. Marital rape has been shown to be highly traumatic and to
have long-lasting physical and emotional effects.
Our state
fails to fulfil its responsibility to ensure sexual fairness, which includes
protection from wrongdoing and mistreatment, by not criminalizing spousal rape.
Numerous
nations have now approved legislation that forbids marital rape or implements
rules that make no distinction between marital and common rape.
This
proves that rape in marriage is now viewed as a human rights violation. Despite
the fact that India has established various laws and institutions addressing
violence against women in their homes, such as laws prohibiting the murder of
girls and domestic abuse, the holy veils of marriage in India stand to conceal
marital rape.
The true
prevalence of marital rape in India is unknown, as it is in the majority of
other nations, but numerous studies carried out, suggest that it is
widespread, despite the reluctance of many officials to accept it. Various
research and their findings pertaining to marital rape in India are mentioned
henceforth:
·
One in five Indian males have allegedly forced their
spouses to engage in sexual activity, according to a 2011 survey.[1]
·
More than two-thirds of married Indian women between
the ages of 15 and 49 reported that their husbands had abused them or coerced
them into having sex.[2]
·
According to a different survey, one in seven married
women in India have experienced rape at least once, at the hands of
her husband.[3]
Such
findings prove the existence of marital rape in India and, how such gruesome
acts go unpunished, as the law does not consider these rapes to be crimes.
JUSTICE
VERMA COMMITTEE REPORT (2013)
The
Justice Verma Committee was established in 2012 as a result of the Delhi gang
rape case to recommend changes to the criminal code that would allow for a more
expedited legal process and harsher penalties for those who commit sex assault
against women.
The IPC
distinguishes between rape within marriage and rape outside of marriage,
according to the report that the Committee submitted on January 23, 2013.
Sexual activity without consent is forbidden by the IPC. Unwanted sexual
contact between a husband and wife does, however, fall under an exception to
the rape crime. The Committee suggested eliminating the exception for marital
rape.
Marriage
shouldn't be viewed as a sexual act's unconditional permission. The
relationship between the victim and the accused should therefore not be
considered relevant for determining whether the complaint agreed to the sexual
activity.[4]
The panel
placed a significant amount of reliance on the rulings issued by courts in
various nations, saying that "Our view is supported by the judgement of
the European Commission of Human Rights in C.R. v UK[5],
which endorsed the conclusion that a rapist remains a rapist regardless of his
relationship with the victim."
WHY MARITAL RAPE MUST BE CRIMINALIZED?
Many prominent jurists, women’s rights activists, and social activists
have argued for criminalising marital rape. Here is the list of all
arguments:
- Marriage shouldn't be
considered giving a husband the capacity to impose sexual relations at
will. Marriage cannot signify implicit, Irrevocable consent. Marital rape
infringes on a married woman's right to equality, which is protected by
Article 14 of the Indian Constitution.
- The IPC's marital
exception to the definition of rape was written in accordance with
Victorian patriarchal standards that did not acknowledge men and women as
being on an equal footing.
- It creates an unfair
distinction between married and unmarried women and, by extension, denies
a married woman the ability to consent to sexual activity. It also forbade
married women from owning property and combined the identities of husband
and wife under the "Doctrine of Coverture."
- A fundamental right
under Article 21 is additionally violated by forced sexual cohabitation.
- Section 375 of the IPC
is directly at odds with marital rape. Section 375 specifically aims to
defend women and punish those who harm them inhumanely. The goal of
Section 375 cannot be achieved by protecting husbands from prosecution
because rape carries the same penalties whether a victim is married or
not. The exception of section 375 IPC shields males from acts done against
their wives by dividing people into two categories depending on marital
status.
- If marital rape is not
made a crime, a woman's dignity is suppressed, meaning her dignity while
she is married is given less significance.
- In State of
Karnataka vs. Krishnappa (1993)[6],
the Supreme Court stated that "sexual violence, in addition to being
humiliating, is an unlawful trespass into the private and dignity of a
woman. The court also determined that non-consensual sexual activity
qualifies as both physical and sexual violence."
- The Supreme Court
equated the right to select a sexual activity with Article 21 in Suchita
Srivastava v. Chandigarh Administration (2009)[7].
(Right to personal liberty, privacy, dignity, and bodily integrity).
- In Justice K.S.
Puttuswamy v. Union of India[8],
the Supreme Court upheld everyone's right to privacy (2017).
Decision-making privacy is a crucial component of privacy, especially when
it comes to choices involving one's sexual orientation, ability to
procreate, or intimate relationships.
- "Does a man or
woman lose their sexual autonomy after they are
married," Justice Chandrachud asked this question in Joseph
Shine v. Union of India (2018)[9].
" No, I believe. The right to decline sex should continue to exist
after marriage", he added.
- The Special Marriage
Act of 1954 and other personal laws do not recognise marital rape as a
basis for divorce, hence cruelty to the husband cannot be cited as a
justification for divorce. As a result, the women continue to suffer
silently and helplessly.
No matter who the perpetrator is or how old the victim is, it is still
rape.
- Women who have been
sexually assaulted by strangers or their spouses often have lasting
memories of the horrific attack they experienced.
The Supreme Court affirmed Article 21 of the Constitution in each of
these cases, holding that all women, regardless of whether they are married or
not, have the right to refrain from engaging in sexual conduct.
Criminalizing marital rape grants women fundamental human rights as well
as a sense of protection from the most terrible crime that may occur within
marriage. Individuals will be granted the right to refuse sexual activity when
they so want.
The ability to directly pursue justice will be made possible by making
marital rape a crime.
THE CHALLENGES HINDERING THE CRIMINAIZATION OF MARITAL RAPE
Gender discrimination, in my opinion, is the main factor contributing to
sexual assault against women in India. A legal instrument used by the state to
institutionalize gender discrimination is the marital rape exception found in
IPC Section 375. The government is expected to take all necessary measures to
safeguard its female citizens and to change social and cultural norms that
support gender stereotypes. Failing to comply with this demonstrates gender
prejudice. Violence, especially sexual violence, is prevalent, frequent, and a
crucial tool in the enslavement of women and their confinement to private
areas.
The government claims to recognize the violence women experience in
their marital homes, thus the existence of this exception is an abnormality.
This suggests that the laws that are currently in place, which do not punish
marital rape, are insufficient to address the issue of marital rape in India
since they do not properly address the issue of gender discrimination in the
context of many other issues. Many such reasons against such criminalization
are:
- The notion of
eliminating the husband exemption clause under IPC Section 375 was
recently rejected by the government, which claimed that doing so would
amount to excessive meddling with the marital relationship.
- According to former
Indian Chief Justice Dipak Mishra, "criminalizing marital rape will
bring about chaos in homes and our nation's survival depends on the family
institution, which supports family values."
- Simply making marital
rape illegal may not be enough to put an end to it because "moral and
social awareness" is crucial to putting an end to such an atrocity.
- Due to ingrained
customs and social mores, marital rape cannot be made a crime. The Indian
government claims that individuals who work to stop women from being raped
by their husbands are imitating Western nations.
- Our culture is based
on the tenet that once a woman marries, she perpetually consents to her
husband's sexual advances. The wife has thereby ceded her rights to her
husband by mutual consent and marriage contract, which she cannot revoke.
The union government absurdly argued that if all sexual acts between a
husband and his wife take place, then the wife will be the only judge of
whether they constitute marital rape or not in an affidavit to the Delhi
High Court, claiming that a law criminalizing marital rape could be used
to harass husbands.
- As there is no
long-term evidence in such a case, a man's sexual interactions with his
wife cannot be used as evidence in court.
- Due to issues like
poverty, illiteracy, social conventions, religious beliefs, and the
sacredness of marriage, many people also believe that the idea of marital
rape is an international one that cannot be applied under Indian pretext.
- The wife's testimony
is frequently the only proof of the rape on the issue of whether the
husband raped his wife. DNA or semen samples would be meaningless as there
may have been consensual sexual contact between the couples prior to the
rape. It would have been common for the husband and wife to have
intercourse often, making it nearly impossible to establish that there was
no consent. Many have stated that after a woman claims that she has been
raped in a marriage, there won't be much evidence, such as CCTV footage or
other proof, to show whether the woman has or has not been raped. As a
result, applying the burden of proof in these cases will be challenging.
- Misuse of the law is a
big reason why several individuals, jurists and even men’s rights activists
have raised alarm over the criminalisation of marital rape. Statistics
about the abuse of 498A, the law that deals with dowry cases, are used to
argue against making marital rape a crime. Some campaigners assert that up
to 85% of dowry accusations are unfounded, and that India cannot handle
another disastrous law that will amount to "legal terrorism" if
it fails. Many men's rights advocates are particularly reluctant to make
marital rape a crime because they believe this will lead to even greater
abuse than the anti-dowry law.
JUDICIAL PRECEDENTS AND ONGOING LITIGATION
The Divison Bench of the Delhi High Court in the case of RIT
Foundation vs Union of India[10],
which was decided on May 11, 2022, consisting of Justices Rajiv
Shakdher and C. Hari Shankar held two different views regarding marital rape.
The question before the court was if a husband should be held criminally liable
for raping his wife who is not under 18 years of age.
- The question of
whether the distinction between married and unmarried couples has a
rational connection to the purpose of Section 375, which is to prevent a
woman from being subjected to a sexual act against her will or with her
consent, was raised by Justice Rajiv Shakdher. The categorisation is
illogical and arbitrary since it implies that forced sex that occurs
outside of marriage is "true rape" and that similar behaviour
that occurs within marriage is anything other than rape. A woman has the
moral right to reject unwelcome, coerced sexual contact. It was
misconceived that eliminating MRE would result in the creation of a new
crime for a number of reasons, the most important of which was that it
would only result in the extension of the ambit of Section 375 to
even offending husbands.
- According to Justice
C. Hari Shankar, "Section 376B of the Indian Penal Code is based on
the evident assumption that when a couple is separated, the demographics
that would otherwise be applicable to a marriage that is subsisting and
enduring between them are absent. This clause treats the man's act of
non-consensual sexual contact with the woman in such circumstances as a
separate and entirely different offence, with a different punishment
prescribed for its commission. The husband has no reasonable expectation
of having sex with his wife when the marital ties have been severed, even
if there isn't a legal divorce. So, the distinctive signs of a sound,
enduring, and lasting marriage are no longer valid. Once more, this is a
circumstance that is qualitatively different from sex between strangers as
well as sex between a husband and wife who are living together. As a
result, it cannot be compared to sexual activity between strangers, but it
also cannot be compared to sexual activity between a married couple who
live together. In order to address these situations, the
legislation has carved out a middle ground. Of course, the court would
have to decide if the couple is truly "living separately" in
each case. Even though the couple is not together, the marriage is still
valid, so the legislature decided to impose a suitable, milder sentence
for the offence. The use of legislative discretion is fully appropriate,
there is absolutely no basis for challenging the validity of the
provision. Section 198B solely specifies how to handle complaints made in
accordance with Section 376B. Hence, there is no reason to invalidate the
provision."
After such polarizing views of the
Delhi High Court on this issue, the Supreme Court is all set to take cognizance
of the case and will begin hearing a
series of petitions seeking to criminalise
marital rape.
Comparing Marital Rape Laws: India vs Other Countries
Comparison with Global Laws:
Numerous countries have acknowledged the seriousness of marital rape and
enacted legislation to protect their citizens. Let us examine the approaches
taken by a few countries:
Marital Rape Laws in Western Countries
In contrast
to India, many Western countries have recognized marital rape as a criminal
offense. Legislation criminalizing this act exists in countries such as the
United States, Canada, the United Kingdom, and Australia. These nations
prioritize individual consent and recognize the importance of protecting
victims within the institution of marriage.
·
United States: All 50 states in the United States
criminalize marital rape without any spousal exemption. The laws treat marital
rape on par with other forms of sexual assault, emphasizing the importance of
consent for any sexual activity, even within marriage.
·
Sweden: Sweden was the first country to explicitly
criminalize marital rape in 1962. Their legislation underscores the
significance of sexual autonomy, recognizing that consent cannot be assumed
merely based on marital status.
Marital Rape Laws in Asian Countries
Asian
countries present a diverse range of attitudes towards marital rape. While some
countries like Japan and South Korea have criminalized marital rape, others
like Bangladesh and Pakistan still lack explicit legislation on the matter. The
varying legal frameworks underscore the need for comprehensive legal reforms
across the region.
Marital Rape Laws in African Countries
Africa,
too, experiences significant disparities in terms of marital rape legislation.
Some countries, like South Africa and Zimbabwe, have criminalized marital rape.
However, numerous others still lack specific legal provisions to address this
issue. Consistent efforts must be made to establish comprehensive legal
frameworks throughout the continent. South Africa's laws explicitly criminalize
marital rape and affirm that no individual should be compelled into any sexual
act without their consent, irrespective of their marital status. The
legislation prioritizes the protection of women's rights and bodily integrity.
CONCLUSION
Marital
rape is not entirely forbidden in India. It is without a doubt a significant
instance of female abuse that calls for government action. Women who have been
sexually assaulted by their spouses or partners are more susceptible to various
attacks and frequently experience persistent physical and emotional problems.
For a woman in this circumstance, living with her tormentor on a regular basis
makes marital rape more scarier. It is obvious that marital rape has to be made
a felony due to how serious the effects are. In India, the law is improving for
women, but more needs to be done to make social and legal improvements, such as
criminalising marital rape and altering views towards women in marriage.
Since marital rape is not officially outlawed, the law defending women
from domestic violence has many shortcomings. Positively, passing a law
prohibiting domestic violence cleared the path for a law forbidding marital
rape. This represents a change in the mindset of the state, which before favoured
not interfering in family affairs. Marital rape, a kind of sexual violence
against women, is simply one manifestation of a larger systemic problem.
Fragmenting the problem means preserving and defending places of abuse and
violation. Many social, economic, and political illusions regarding the place
of women in Indian society have been strengthened by the lack of a criminal law
provision to safeguard against marital rape. Due to the lack of accountability
for the perpetrators, this gap has aided in the normalisation of this form of
sexual violence, making marital rape more prevalent. Many women now find it
difficult to refer to forced sex that occurs during marriage as
"rape" as a result of this. Therefore, it is crucial to separate the
public and private domains and to identify and document violence against women
as a social issue. Similar to altered intestate succession laws, legislative
reforms surrounding marital rape are inevitably met with hostility since they
offer a serious threat to the status quo, which views men in dominant roles of
power and control within families and throughout communities. Despite this,
legislative reform has the potential to result in more gender-sensitive
policies and initiatives, and as such, it is an essential step in the direction
of reducing marital rape in India. In the end, the law can play a significant
role in combating marital rape by eliminating the "marriage between an
intimate connection and the incorrect assumption of continued consent to sexual
intercourse," since such separation is necessary by equality. It is past
time for India to respect a woman's dignity and freedom over her body and
person. Should the government really interfere in a married couple's home?
Indeed, is the answer. In instances of abuse, divorce, and dowry demands,
it already does. Why should the most vile and horrific crime remain outside the
purview of the state and its laws? Why can't it address the issue of marital
rape? A state must defend a woman's right to fundamental physical integrity
even if it has no role in the marriage itself but serves as an arbitrator
following the divorce. Marriage is regarded by the patriarchal power systems as
a permit for forced sex. This undercuts women's sense of worth. India is rife
with contradictions for a nation that prides itself on being on the path of
growth. Despite the fact that mainstream national movements have been built
around "non-violence," structural violence against women still
permeates the social, political, and cultural fabric that is the foundation of
our nation as a whole. The nation has access to the most advanced defence
technologies, ensuring the security of the state, yet its women live in fear
for their lives and dignity within the family on the nation's land. Our society
is rife with gender discrimination problems. A reduction in sexual violence
against women and the ensuing liberation of women from fear and subjugation
will remain an unfulfilled dream unless the series of complex and
interconnected issues is carefully explored and addressed.
Article Information
MARITAL RAPE: A CRITICAL ANALYSIS IN THE PURVIEW OF INDIA AND COMPARISION WITH OTHER COUNTRIES
Authors: SHRUTI YADAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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