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Criminalising Marital Rape in India and it’s Legal Aspects

Monika Kularia, Student, Fiver Year Law College Jaipur

 

“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.”

― Mahatma Gandhi[i]

Introduction

The above quoted Gandhiji’s words said back in 1921 ring true even today. Marital rape is a significant but often overlooked aspect of sexual crimes against women. It is one of the most common and repugnant form of masochism in Indian society hidden behind the steely drape of matrimony.

The law does not treat marital rape as a crime. In certain cases, even if it does the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must accept rape within marriage as a crime. Further, women themselves must break free of societal fetters and fight for justice by refusing or protesting to act in accordance with the standards piled on to them as the weaker sex being submissive and docile. Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an out-dated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behaviour.

This paper is an attempt to picture the discrimination, uncover the shortcomings and bare the fallacies of the criminal justice system in India as regards marital rape. It goes on to provide arguments and reasons necessitating criminalization of marital rape. Lastly, the paper suggests certain legal reforms essential to achieve the desired objectives.

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Understanding Marital Rape

Despite being a persistent problem, spousal rape or marital rape has largely remained an unheeded aspect of sexual crimes against women in the country. Marital rape refers to any sexual act(s) by a spouse or ex-spouse, committed without consent and/or against a person’s will, obtained by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral sex, forced sexual behaviour with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted.

Rape is an offence, which hinges on the absence of consent of the woman. It is important to realize that the absence of consent does not have to be only in the form of the word ‘no’. It should be assumed from the context of the situation. Within a marriage, if a woman gives consent to sexual intercourse because of threat of injury to children or herself, depriving the woman of the right to stay in the house or receive maintenance, it is not valid consent. It is still rape.[ii]

Marital rape has not been sufficiently accounted for in the Indian Legal structure. The law does not punish rape within marriage if the woman is above fifteen years of age.[iii] Forced sexual intercourse is an offence only when the woman is living separately from her husband under judicial separation.[iv]

Such cases go unreported as victims do not confide in either their family or friends due to the stigma that goes along with accusing one’s husband of oneself.

Concerns Vis-à-vis Marital Rape

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Researches indicate that marital rape often has severe and long-lasting consequences on a woman which may comprise of physical as well as psychological effects.

The physical effects of marital rape may include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Women who have been battered and raped by their husbands may suffer other physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence. Specific gynaecological consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV.[v]

Stark Psychological consequences as well are probable to be suffered by the women who are raped by their spouses. Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, problems in establishing trusting relationships, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and emotional pain for years after the violence.[vi]

Forms Of Marital Rape

The subsequent three types of marital rape are identified by legal scholars as by and large prevalent in the society[vii]

  1. Battering rape: In battering rapes, women experience both physical and sexual Violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.
  2. Force-only rape: In what is called force-only rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.
  3. Obsessive rape: Other women experience what has been labelled sadistic or obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

Situation In India

Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts still is not an offence in India. A peep at the routes a woman has to guard herself in a marriage, communicates to us that the legislations have been either non-existent or obscure and the whole kit and caboodle has just depended on the interpretation by Courts.

Section 375 of our Penal Code defining Rape echoes very archaic sentiments; mentioned as its exception clause it says “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.”  The immediate section 376, which provides for punishment of rape states that, the rapist should be punished 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 unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. What is ironical here is that, these are the same laws which provides for the legal age of consent for marriage of a female to be 18.[viii]

One of the biggest obstacles in recognising it as an offence is the nature of Indian society. Young girls are brought up with the notion of the pati (husband) being the parmeshwar (God) who has absolute right over his wife. The notion is that when a man comes home tired after a day’s work then the wife must not refuse his advances. The problem here is that woman’s labour at home and the workplace is ignored. She becomes a mere object of pleasure for the man. Society does not recognise non-consensual sex in marriage to be a crime against the woman however, it must be reminisced that cases of marital rape occurs within the confines of the home, and therefore often there are no witnesses to the crime.

A man forcing himself on his wife is seen as claiming his conjugal rights. Marital rape is a more dangerous form of sexual violence as unlike rape, which normally is a one-time occurrence, it allows for the victim to be raped over and over again and the perpetrator her is not some stranger but the husband himself.

The very definition of rape[ix] demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice  or equity. Even international law now says that rape may be accepted as the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bounds of marriage” as such a provision may amount to excessive interference with the marital relationship.[x]

Indian Judiciary: Operating at cross-purposes

In India marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes. In Bodhisattwa Gautam v. Subhra Chakraborty[xi] the Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21[xii] of the Constitution.

Yet it negates this very pronouncement by not recognizing marital rape.[xiii] Though there have been some advances in Indian legislation in relation to domestic violence, this has mainly been confined to physical rather than sexual abuse. Women who experience and wish to challenge sexual violence from their husbands are currently denied State protection as the Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote:

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”[xiv]

This established the notion that once married, a women does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “licence to rape” their wives.

Only two sets of married women are covered by the rape legislation — those being under 15 years of age[xv] and those who are separated from their husbands.[xvi] While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim. Some progress towards criminalizing domestic violence against the wife took place in 1983 when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India.[xvii] The Committee rejected the contention that marriage is a licence to rape. Thus, a husband can now be indicted and imprisoned up to 2 years, if firstly, there is a sexual intercourse with his wife, secondly, without her consent and thirdly, she is living separately from him, whether under decree or custom or any usage. However, this is only a piecemeal legislation and much more needs to be done by Parliament as regards the issue of marital rape. When the Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope.[xviii] The Joint Committee that reviewed the proposal dismissed the recommendation. The Committee argued that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package.

Many women’s organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes pertaining to women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission’s proposed definition of “sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as “it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition. As of now, the law in India is wholly inadequate in providing supporting mechanisms for women to exercise bodily integrity and sexual autonomy.

Frequent Arguments Against Criminalising Marital Rape

The following are some of the common arguments given against the idea and proposal of criminalizing marital rape as an offence:

  • No legislative attention is needed to marital rape as it being quite
  • That due to near impossibility of proving marital rape, its criminalization would only serve as an increased burden on the already overburdened Judiciary.
  • Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape.
  • There is an implied consent to have sexual intercourse when a woman marries a man.

Rebuttal of The  Arguments

A read-through of these arguments would make it quite evident that these are mere whimsical, lame excuses of a male-chauvinist society that lack any sort of legal substance or moral force. A rebuttal of the abovementioned arguments is not very difficult.

Marital rape is a common but under-reported crime. A study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once.[xix] They frequently do not report these rapes because the law does not support them.

As to the second argument, that marital rapes are difficult to prove, it may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapist husbands. The mere fact that marital rape would be very difficult to prove is no reason for not recognizing it as a crime.

As regards the third argument of women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult. Because of the associated stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of sheer spite. Besides, the criminal justice system provides inherent safeguards such as the requirement of proof beyond any reasonable doubt. This is no justification to say that the victims should be denied protection simply because someone might be at risk of a fabricated case.

As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual intercourse with her husband after marriage, but the expression of love through sexual intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination can it be said that a person consents to harm or violence by marriage, and neither does the law permit any person to give such consent.

Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold together marriages may be one of the objectives of matrimonial laws. But it cannot override the fundamental objective of law in general and that of criminal law in particular, which is to protect and preserve the bodily integrity of a human being. Thus, withholding justice and denying equal protection for preserving marriages, at best, can be an improper goal of law. The law should not encourage forced cohabitation and should not protect a raping husband.

Aberrations In Indian Law

The whole legal system relating to rape is in a mess, brimming with paradoxes. The major legal lacunae that come in the way of empowering women against marital rape are:

  • The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and “right to live with human dignity[xx] is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
  • Article 14 of the Constitution guarantees the fundamental right that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.
  • Though protection of the dignity of women is a fundamental duty under the Constitution,[xxi] casting a duty upon every citizen “to renounce practices derogatory to the dignity of a woman”; it seems that domestic violence and marital rape do not come under the definition of dignity.
  • The “United Nations Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 entitled “The elimination of violence against women” recommended that marital rape should be criminalized.
  • A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse. This implies that having sex anytime, anywhere and of any sort is an implied term of the contract of marriage, and the wife could not breach that term of the contract.
  • The law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non-consensual sexual intercourse with a wife who is just 15 years of age.
  • The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the man involved and is below 16, even if she consents.[xxii] But if she is a wife, not below 15 and does not consent, it is not rape.
  • Another paradox is that according to the Indian Penal Code, 1860, it is rape if there is a non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both,[xxiii] which is quite less in comparison to the punishment provided for rape outside the marriage.
  • Though the advocates of women’s rights secured a clause in 1983 under which it is unlawful for a man to have sexual intercourse with his separated wife pending divorce, the courts are reluctant to sentence husbands in spite of the law.

Recommendations For Restructuring

In light of the above discussion following suggestions are made:

  • Marital rape should be recognized by Parliament as an offence under the Indian Penal Code.
  • The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
  • The fact that the parties are married should not make the sentence lighter.
  • It should not be a defence to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
  • The wife should have an option of getting a decree of divorce if the charge of marital rape is proved against her husband. Though a case of marital rape may fall under “cruelty” or “rape” as a ground of divorce, it is advisable to have the legal position clarified.
  • Demand for divorce may be an option for the wife, but if the wife does not want to resort to divorce and wants to continue with the marriage then the marriage should be allowed to continue.
  • Corresponding changes in the matrimonial laws should be made.

Conclusion

It is conceded that changing the law on sexual offences is a formidable and sensitive task, and more so, in a country like India, where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law. Further, though, there is need for substantial changes in the law on sexual offences such as making them gender-neutral and eliminating the inequalities, a radical overhauling of the structure of sexual offences is not advisable.[xxiv] The immediate need is criminalization of marital rape under the Indian Penal Code. But, mere declaration of a conduct as an offence is not enough. Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.

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[i] Mahatma Gandhi, Young India, 1921; (CW. XXI: p. 105)

[ii] “Marital Rape.” Law Teacher. LawTeacher.net, November 2013. Web. 13 December 2015. <https://www.lawteacher.net/free-law-essays/family-law/marital-rape.php?cref=1>.

[iii] Section 375 of the IPC mentions as an exception: “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”

[iv] Hindu marriage act, 1955

[v] Thornhill, R. & Palmer, C.T., A Natural History of Rape — Biological Bases of Sexual Coercion (1st Edn., MIT Press Cambridge Mass., 2000).

[vi] Thornhill, R. & Thornhill, N., The Evolution of Psychological Pain, in Sociology and Social Science, Edn., Bell, R. & Bell, N. (Texas Tech University Press, 1989)

[vii] Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000)

[viii] Hindu Marriage Act 1955, section 5.

[ix] Indian Penal Code, 1860, section 375

[x] Priyanka Rath, 2003. “Marital Rape and Indian Legal Scenario.” , Indian Law Journal, Volume 2, Issue 2

[xi] (1996) 1 SCC 490

[xii] Protection of life and personal liberty– No person shall be deprived of his life or personal liberty except according to procedure established by law

[xiii] Tandon, N. & Oberoi, N., Marital Rape A Question of Redefinition, Lawyer’s Collective, March 2000, p. 24.

[xiv] 1 Hale, History of the Pleas of the Crown 629 (1778).

[xv] Exception to Section 375 of the Indian Penal Code, 1860.

[xvi]Section 376-A of the Indian Penal Code, 1860.

[xvii] Law Commission of India, 42nd Report, 1977, Indian Penal Code, para 16.115, p. 277

[xviii] Ibid

[xix] Subsequent research finds that more women are raped by their husbands each year than by strangers, acquaintances, or other persons. Over a third of the women in our country’s battered women’s shelters report being sexually assaulted by their husbands.

[xx] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608

[xxi] Article 51-A(e) of the Constitution of India.

[xxii] Section 375(6) of the Indian Penal Code.

[xxiii] Section 376 of the Indian Penal Code.

[xxiv] Because radical restructuring in the United States, Canada and New South Wales has proved disappointing. See Nicolson, D. & Bibbings, L., Feminist Perspectives on Criminal Law (1st Edn., Cavendish Publishing Ltd. London, 2000), p. 185.

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