Open Access Research Article
SEX OR RAPE? THE DIFFERENCE IS CONSENT
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Article Details
SEX OR
RAPE? THE DIFFERENCE IS CONSENT
AUTHORED BY - JAI RANI.S.M &
JAYASRI JAGANATHAN
IV YEAR B.B.A.LLB(HONS)
School Of Excellence in Law (TNDALU).
Chennai.
ABSTRACT
“Woman is not a sex object; Marriage is not a Sex contract; Force is not
a right Act”
This article is intended to speak on
behalf of commiserate souls who were subjected to marital rape. We all know how
rape vilifies the woman but no one came forward to voice against the male
chauvinists who often perplexes pleasure with compulsion. Women were been inclined
to sexual objectification in her early period of teenage and it almost continues
till her demise. She neither conveys her preference nor refrains from
consummation when she doesn’t hanker. Nevertheless, if she speaks for herself
she is condemned of her chastity by a bunch of hypocrites and constantly
pressurized to think about her family thereby neglecting her own desires. Furthermore,
Indian Penal Code jeopardizes the life of a taciturn woman by decriminalising
the marital rape under Exception clause (2) of Section 375 which ultimately
encompasses higher vulnerability and to punt their own emotions completely. The
new act Bharatiya Nyaya Sanhita, 2023 which will upheaval the society to a
greater cause anachronistically disregarded the interpretation of marital rape
under Section 64. The authors of this article aimed to unravel the melancholy
of victims and revalorize the optimal solution for them.
INTRODUCTION:
We the authors of this article
commensurate our opinion by quoting a poem encountered by the renowned social
reformer and independence Activist “Mahakavi Subramania Bharati” who reiterated
the belief of woman empowerment through his inspirational songs which are
patriotic and yet gallant to celebrate the Idea of Womanhood in Southern part
of India. “PUTHUMAI PENN” meaning “New-age Woman” was his magnum opus poet
which envisaged that women must be given their own liberation, Dignity and Status
by the society to look after her and therefore she may assuage herself in terms
of intelligence, Ability, Strength to stay in par with the man in every other
field.
“"Nimirntha nannenjum naer konda paarvaiyum
Nilathinil yaarukkum anjaatha nerigalum
Thimirntha gnanach cherukkum iruppadhaal
Semmai maadhargal thirumbuvathillaiyaam"
The above line expresses that the new
age woman must endow her thoughts of wisdom and set her ideologies indubitably,
step forward retaining a fierce glare without looking behind or qualm about it.
India known for curbing out the age-old
religious superstitions, erroneous discrimination, reckless traditional
practices which obstructed the growth of Woman, by implementing sophisticated
judicial pronouncements and bewildering government schemes which had remarkably
established the path for Gender Equality, Reservation Quota, Equal Inheritance
Rights, Right to Divorce, Right to against Workplace Harassment, Maternity Benefit
and so on. Nevertheless, these climate changes still retrenches the
reproductive freedom of woman, persist the rapist culture, detest the ethnicity
and dignity of woman by delineating her corpus lewd in random social media
advertisements, Movies, Music etc and thereafter neglecting the Importance of
Criminalizing Marital rape which is at great peril. Marriage ipso facto merges husband and wife with
one another, serving notion of “implied consent’ which enables husband to
acquire absolute fidelity. In the result, it gives the men the sovereignty to
have ownership and unrestricted access over the corpus of Woman. Furthermore,
with accordance to UN WOMEN STUDY REPORT of 2018, it laid out that 1 in every 7woman
were been raped by their own spouse which instigates the risk of PTSD (Post
Traumatic Stress Disorder), Depression, Agitation over a period of time. In the
bottom Line, we the authors will knuckle down the onerous blunder in the
municipal laws and urge to sought for criminalization under all circumstances.
COMPARATIVE
ANALAYSIS ON MARITAL RAPE:
|
BASIS OF DISTINCTION
|
POLAND
|
MALAYSIA
|
USA
|
NEPAL
|
|
BACKGROUND/ HISTORY
|
·
It is the first country to criminalise marital rape.
·
Before 1969 –it did not criminalised marital rape in its Criminal Code
1932.
·
There was opposition to include marital rape under Chapter for Offences
of Morality, so it was included under chapter Offences against freedom and it
was followed as such from January 1, 1970[3]
·
The present Criminal Code, 1997 of Poland also has the provision for
marital rape in its Article 197.
|
·
Malaysia is a country which still hasn’t explicitly criminalised
marital rape.
·
Malaysia was also following the Implied consent theory of Justice Hale
for a long time.
·
The section 375 A of the Penal Code of Malaysia does bring the marital
rape in an indirect way and that there would be no mention about marital rape
in this act.
·
The section 375 A was in effect from the year 2007.
|
·
The US was following the Hade’s – Implied Consent Theory for the
marital rape, where once a women gets married she gives consent to sexual
relation for her entire life.[4]
·
In 1978 – Oregon v Rideout[5]
case had made the public go frenzy about the marital rape issue in this case,
eventhough the husband was acquitted in it.
·
In 1987 – only 12 states criminalised marital rape[6]
·
In 1993 – all 50 states criminalised marital rape.[7]
|
·
Before 2000, Muluki Ain (criminal law) followed by the Nepal did not
criminalise the marital rape.
·
After the landmark case of Forum for Women, Law and Development v His
Majesty’s Government/Nepal[8],
the court held that marital rape immunity is unconstitutional and that it is
against the ICCPR
·
In 2006, the marital rape was criminalisedunder section 3 of rape.[9]
·
In the case of Meera Dhungana vs. HMG[10],
the Supreme Court gave an directive order to include marital rape as a crime.
·
In the year 2018, Muluki Criminal Code, 2074 under section 219, it has
increased punishment of marital rape.[11]
|
|
Legal Position
|
Yes, it has criminalised in under
Article 197, in Criminal Code of 1997
|
It is not explicitly criminalised,
but it can be brought under the interpretation of section 375 A of its Penal
Code
|
All states have criminalised the
marital rape under its own law and differ from each other.
|
The marital rape has been
criminalised under sec 219 of Criminal
Code
|
|
Judicial precedent / the reason for
criminalisation
|
The rationale behind the
criminalisation of marital rape were the protest of the women after the
second world war.
|
It still hasn’t explicitly
criminalised.
|
The case Oregon v Rideout[12]
was the turning point in the criminalisation of marital rape
|
The case of Forum for Women, Law
and Development[13]
, is the reason behind criminalisation of marital rape
|
|
Lacunae
|
It doesn’t define about the degree
or force or resistance for marital rape. As it may not penalise the husband,
if the wife was only doing verbal protest and when she tolerated when he
forced upon her.
|
It first needs to explicitly
criminalise marital rape, as the interpretation may vary in every case. It
should also make the offence gender neutral.
|
As each states in USA follow
different law, it cant be accurately analysed. But it also lacks the clear
definition of force for penalising.
|
It lacks a gender neutral law for
marital rape.
|
|
Forced rape[14]
|
|
|
|
|
|
Battering Rape[15]
|
|
|
|
|
|
Combined Force and Battering rape[16]
|
|
|
|
|
|
Sadistic rape[17]
|
|
|
|
|
Judicial
Development in India
Earlier in India, the women were
merely treated as a property, regardless of gender, race culture nonetheless in
the event of rape, the perpetrator would be liable to pay compensation only for
deteriorating her modesty and would be acquitted after discharging his
responsibility. It is certain that rights of woman are always transgressed in
one way or another, anyhow the situation moved up now since many women have
started to campaign in favour of #BREAK THE STEREOTYPE and demand for the equal
rights as we vividly emancipated in the renowned Sabarimala judgement.
Still Today, the Implied Consent
Theory of Justice proposed by Hale is been followed in India, it emphasize that
once a women consents for marriage, it is often perceived as she had
acknowleged for sexual relation with her partner till her demise. As a result,
it subverts her right to body privacy and reproductive rights[18]
which has been envisaged by Article 21 of the Constitution. The offence of
marital rape is still not been criminalised because of the Marital Rape
Exception (MRE) envisaged under section 375 of Indian Penal Code.
Despite, the resultant Protection of
Women from Domestic Violence Act 2005 (PWDVA)scrupulously regards the
marital rape as a offence but failed to advert it as a punishment.
The article (1) of Convention on the
Elimination of All Forms of Discrimination against Women says that there
should be no discrimination against violence of women based on marital status
and CEDAW had also recommended to cast out the MRE, in spite of stringent
regulation, it was never put into operation by the Government of India. In the
contrary, India have duly signed and ratified this convention way before.
The Justice Verma Committee which was
constituted on 2012, had also recommended the deletion of MRE, after examining
that over 18.8% of women gets raped by their partners. However, it was never confabulated
in Criminal Amendment Bill,2013.
It must be duly acknowledged that
even in the proposed novel criminal bill Bharatiya Nyaya Sanhita, 2023, there
is no explicit provision for penalising marital rape yet have only increased
the age of married women under the exception clause.[19]
We live in a society where there
exists discrimination, defragmentation between married and unmarried groups, which
has resulted in a malevolent stealth among men to assert his sexual desire over
his spouse corpus considering as a legitimate privilege surpassed by the
institution of marriage. Justice J.B. Pardiwala in the case of, Nimeshbhai
Bharatbhai Desai vs State Of Gujarat[20], held
marital rape should be recognised without any discrimination of marital status.
SOCIAL INNUENDO WHICH CAUSES
JEOPARDY:
When we juxtapose pleasure in par
with the danger, we might able to understand the significance of protecting the
modesty of women and her sexual autonomy, in relevance with other form of
property. Let suppose husband named ‘X’ cohabits with wife named ‘Y’ forcefully,
manipulatively and coercively to ravel his own pleasure, the hustle transmutes enlivening
sexuality into unmitigated danger which in return causes indefinite amount of
impairment to Y’s fundamental rights guaranteed by the Constitution of India
under Article 14, 15(1), 19(1)(a), 21 and 23(1) as well as mental
traumatisation. It is very challenging to accurate the victim data, since woman
are reluctant to report anywhere appertaining to safeguarding their children,
family loyalty, society insistence to live as a family and fear of effect of
retribution to their inmate relation.
The ubiquity of sexual experience is often emphasized in a dangerous
manner, thus woman finds difficult to grasp, disagree to speak about pleasure
suffers victimization at last. Consecutively, they were unable to deny the
unwelcome sexual practices mended by their husband which amounts to sine quo
non disruption of their personhood and moral virtue. The society per say thinks
that Consummation before marriage is improper to the sacrament of family and
where rape demolishes the fragment of the society nevertheless forced sex in a
non consensual way neither root the flavour of non discrimination nor regard
the idea of constructive autonomy.
Remember, “PLEASURE SHOULD BE OBTAINED
WITH NO PRESSURE”
DEMEANOR
SOLUTIONS:
a. Ensuring Mental Security – Nothing is
worth sacrificing than losing mental health for. Boundaries must be set even it
is within the Family.
“DO NOT NORMALIZE YOUR
PAIN FOR THE SOCIETY’S GAIN”.
b. Onus of Consent – Court must apply
the test of analysing voluntary or involuntary penetration similar as that of,
the victims of Rape.
c. Cognizance of Offence – Marital Rape
should be given recognition considering the severity/gravity of offence and the
mental turmoil caused to the women.
d. Awareness Campaign: The government
shall extend his wings in implementing a separate specialized training and
awareness campaign in providing education and to accord feasible solutions.
e. Amicus Curiae – the judiciary must lend
out their own separate committee to address the sufferings of taciturn Woman
living in rural and urban areas.
Conclusion:
The continuous exemption of Marital
Rape from the criminal laws will sabotage the bodily integrity of woman
provided by the Indian Constitution. The resonance of criminalization should
not be examined on culture which puts away the institution of marriage rather
must be done on the Constitution. In the light of attitudinal legal Amendments,
the MRE will definitely leave a straw in the wind to serious violation of woman
values. How does a woman can voice out against the perpetrators to the police
when the law itself shield them? Thus, legislation or judiciary must intervene
to acknowledge this heinous crime which happens within the sacrament of
relationship, similar to that of its momentous intervention in the realm of
cruelty, divorce and dowry. Indian Judiciary and Executive Authorities must
prove once again in deploying paramount consideration to this imperative
phenomenon and yield polarized, efficient end result to promote woman
empowerment in the upcoming era.
[1]J. E. Hasday, Contest and Consent:
A Legal History of Marital Rape, California Law Review, Vol. 88, No. 5
(Oct., 2000)
[2]D. E. H. Russel, Rape in Marriage,
New York 1982
[3] Aneta Michalska-Warias, Marital
Rape in Poland from the Legal and Criminological Perspectives, Prawo W
DZia?aniu, Sprawy Karne, 26/2016
[4] See, Judgements of Justice Hale,
recorded in “History of the Pleas of the Crown”, D. E. H. Russel, Rape in
Marriage, New York 1982, Dobash, R. E., & Dobash, R. P. (1979). Violence
against Wives: A Case against the Patriarchy. New York, NY: Free Press
[5] Oregon v Rideout ,303 Or. App. 504
[6] Raquel Kennedy Bergen, Wife Rape,
Understanding the Response of Survivors and Service Providers, Sage
Publications, 1996.
[7] Ibid.
[8]Writ No. 55 of the year 2058 BS (2001-2002)
[9]Harsh Mahaseth, Nepal’s Parliament
raises punishment for marital rape – but differentiates,South Asia Journal, https://southasiajournal.net/nepals-parliament-raises-punishment-for-marital-rape-but-differentiates/ (23-02-2024, 21.03 P.M.)
[10] Meera Dhungana vs. HMG, (NKP 2052)
[11] Report on Nepal: Contribution for
the Special Rapporteur on Violence Against Women to the Human Rights Council,
2020.
[12] Oregon v Rideout ,303 Or. App. 504
[13]Writ No. 55 of the year 2058 BS
(2001-2002)
[14]Forced rape – where the husband
forces himself upon his wife
[15]Battering Rape – where the husband
beats his wife while raping her
[16]Combined Force-Battery Rape – where
the husband uses both force and battery on his wife.
[17]Sadistic Rape – where the husband
does all kind of perverse, strange and torturous act towards his wife
[18]Suchita Srivastava & Anr. vs.
Chandigarh Administration, 2009 (9) SCC 1
[19] Section 63 of Bharatiya Nyaya
Sanhita, 2023, No. 45 of 2023.
[20]Nimeshbhai Bharatbhai Desai vs
State Of Gujarat, 2018 SCC OnLine Guj. 73227
Article Information
SEX OR RAPE? THE DIFFERENCE IS CONSENT
Authors: JAI RANI.S.M, JAYASRI JAGANATHAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/07/08
- Issue 7
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International Journal for Legal Research and Analysis
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