Marital Rape

Marital Rape

Rape per se is an offense against a woman in violation of her dignity and self-respect, and when it occurs within the four walls of a marriage home, it reduces the woman to the status of an object used solely for sexual gratification.[1] In India, there is an immediate need for a separate marital / spousal rape law that should be in line with the accepted international norms on this matter.marita

The idea of rape inside marriage agonizes the woman to the very heart. The fear of having to face it, and still suffer through it silently, is an unbearable thought that affects the women’s psyche.

This self-enforced silence has a very damaging effect on women’s emotional , psychological, and mental stability. That silence, however, is not exactly self-enforced. One of the principal reasons why the evil of marital rape is still hidden behind the sacrosanct of marriage is the lack of laws and abundant social stigmas against the act of marital rape. When the violators are outside entities, the woman has been given the right to fight for protection, but when the perpetrator of her bodily integrity is her significant other, who she married with all the pomp and show, such protection is withdrawn by the legislators.

Having this in mind, the idea that a woman (wife) has to have sex with her husband regardless of her will, consent, health, etc., is absolutely unacceptable to a civilized society. Therefore the notion of marital exemption is not justified or applicable in the current times. True, mere criminalization of marital rape in India will not end the problem, but it is surely an important step towards changing the sexual violence experiences of women in a marriage.

It is about time the definition of rape was understood by statute, regardless of the connection between the survivor and the attacker, and placed solely to acti Most countries around the world recognize that rape is rape, and rape is a criminal offence. So, what holds back India, a burgeoning superpower? A thorough study points to many factors: an ancient IPC going back to the Victorian era; a rigidly patriarchal system throughout the numerous faiths of India that suppresses the voices and power of women; and a community in which marriage and kin, in the dated meaning of the term, still have the utmost significance as the building blocks of system.

Violence against women is a depiction of men’s power over women. It shows that men are stronger and make the women their recreational property or object. This has led to a whole series of crimes, wrongful acts against women. It has led to women being dominated and discriminated against and violence against them is one of the crucial social mechanisms by which women are forced into a subordinate position compared to men.[2]

In Section 375, the Indian Penal Code of 1860 defines rape as follows: that a man is said to commit rape when he has sexual intercourse with a woman against her will, without her consent, or where that consent has been obtained under threat, unhealthy mind, intoxication, or substance influence, or through her husband’s impersonation. A glaring provision is: a man with his own wife having sexual intercourse or sexual acts, the wife not being under the age of eighteen, is not a rape.

India is the world’s seventh-largest state. Its population exceeds 1.2 billion, and is the world’s most populous democracy. It is a country with a mixture of different religions , cultures, languages, customs, customs, usages and more. India’s crime rate is mounting at an alarming rate. According to the 2015 Mid-year Crime Index, the Indian crime index is 46.82[5] and according to the National Crime Record Bureau reports, crime against women was reported to be around 52.2 during the year 2013.[3]

It has rightly been said that a country’s worth can be judged by the position it gives women. In India, women were never given importance; their position is still not what it should have been. In India women have always been regarded as inferior to men, leading to the development of India as a country with male chauvinist ideologies. Women in India suffer criminal atrocities like rape, domestic violence , sexual harassment, trafficking and forced prostitution. This is just a tiny part of an endless list of crimes against women.

Marriage, also known as marriage or wedlock, is a socially and legally recognized union that establishes rights and obligations between spouses, their children and their in-laws.[4] According to ancient Hindu scriptures a man can perform no religious rite with perfection without his wife’s participation. In every religious ritual the presence of the wife is important. Therefore spouses are simply named Ardhangani. Women are expected to be granted not only an significant but equitable role with men.[5]Yet it can be found, with respect to recent times, that women’s position is worsening.

From the second half of the 20th century, the issues of sexual and domestic violence within marriage and the family unit, and more specifically the issue of violence against women, have attracted increasing international attention. Even, marital rape either exists outside the penal law in many countries, or is prohibited but widely tolerated. Laws are seldom enforced because of factors ranging from reluctance on the part of authorities to pursue the crime to lack of public knowledge that sexual intercourse in marriage without consent is illegal.

Women experience marital rape more widely, albeit not exclusively. Marital rape is often a chronic form of victim violence which occurs within abusive relationships. This operates in a diverse system of state governments, cultural traditions , and social philosophies that converge in various ways to affect each distinct instance and circumstance. The reluctance to criminalize and prosecute marital rape has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and cultural expectations of a wife’s subordination to her husband’s views, which in many parts of the world continue to be common.

The notion of the sacrosanct marriage institution depicted in India is contradictory, and is far from the understanding of truth by women. The ugly truth of crimes like marital rape , domestic violence etc., lies hidden under the iron veil of marriage. Throughout India, marital rape is not constitutionally recognised as a offense and hence, there is no punishment for the same.

Through this research paper , the researchers attempt to denounce the discrimination women face with respect to marital rape and the shortcomings of the Indian Judicial System by not granting marital rape as an offence. The researchers also provide arguments and reasons supporting India’s need to criminalize marital rape, and further suggest certain legal reforms that are essential to achieving the desired goals.

Marital Rape- Meaning

The propensity when one uses the term rape is to think about someone who is a stranger, a human who is malicious. Usually in the context of marriage one does not think of rapes. It is hard for women themselves to think that a husband can rape his wife. After all, how to accuse a man of rape if he takes advantage of his conjugal rights. It’s indicative a woman has no right to her own body and her will is subject to her husband’s will.

While marital rape, in Indian culture, is the most prevalent and repugnant type of masochism, it is well concealed behind the iron curtain of marriage. Although the legal definition varies, marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force , threat of force, or if the wife cannot consent to it. Despite the prevalence of marital rape, social scientists, practitioners, the criminal justice system and a larger society as a whole have paid relatively little attention to this problem. The word rape ‘is derived from the term rapio, meaning to seize.

Therefore, rape is a forcible seizure, or the ravishment of a woman by force, fear or fraud without her consent. It includes forced sexual contact with a woman which is not appropriate. Rape can be seen as an act of violence by a woman’s private person, an outrage in every way. It is the greatest invasion of a woman’s image. India’s Supreme Court has aptly described it as deathless shame and the most serious crime against human dignity.[6]

Rape is not just a physical assault but it is destructive of the victim’s entire persona. The law did not conceptualize it as an offense against the woman’s person, one that destroys her liberty; rather, it conceived rape as an instrument to protect a man’s property from other men’s sexual assaults. Consequently, the crime of rape in marriage was not regarded as an offence because a woman was deemed the husband’s property and a man could not be viewed because breaching his own property.

Marital rape is especially complicated because the complex, personal nature of marital relationships makes it difficult even for the victim to see herself as a victim, let alone report the offending act to the authorities, which is why Marital Rape is one of the highly underreported violent crimes. Also people who see themselves as offenders are hesitant to contact the authorities because they are financially dependent on their husbands, so disclosing the matter could very well contribute to the loss of financial support leaving them and their children without food and shelter.

Marital rape refers to the sexual intercourse between a man and a woman, who are legally accepted as husband and wife, where the woman does not give consent for such intercourse. Marriage, as discussed earlier is an unimpeachable bond in which the man and woman vow to live together in happiness as well as in pain by greeting the flaws of each other. Union often grants the husband and wife the freedom to consummate their union lawfully.

Consummation is considered to be a necessary requisite after the marriage has taken place. Marriage is a stable relationship in which a man and a woman are socially permitted to have Children implying the right to sexual relation.[7]

 

Being a part of the wedlock does not allow the man to have sex with his wife by force. The freedom to have sexual contact needs to be voluntary and not a wife’s responsibility. The wife will have the right to deny intercourse, and her husband can not compel her to do so. Even today the Indian law system does not recognize marital rape as a criminal offence. It is a debatable matter on which no conclusions have been drawn so far.

According to the Indian Penal Code of 1860, the definition of rape under section 375 specifies that if it is against her will or without her permission, sexual contact with a woman would be constituting a rape. If the consent of the woman is obtained by coercion or causing apprehension of grievous hurt or death, it will also be called rape. If a man makes the woman believe fraudulently that he is her husband, and has a rape with her. If a man has sex with a woman who is unable to give consent because of unsoundness then it would also constitute rape.

Sexual intercourse with a girl under the age of seventeen would also be termed rape even if the girl consented to such intercourse. Besides this, the definition of rape also includes an exception that states that a man who has sex with his own wife who is not under the age of fifteen is not a rape. Section 375, the Indian Penal Code (IPC) provides for rape, echoes very archaic sentiments, referred to as its exception clause-Sexual intercourse between a man and his own wife, a woman not under 15, is not rape.

It’s been appropriate for people in the history of most cultures to compel their spouses to have sex against their will. In most countries the traditional definition of rape was sexual intercourse with a woman not his wife without her consent.

It offered the husband an immunity from punishment for assaulting their spouses — a rape certificate. The foundation of this an exemption can be traced back to statements made in 17th Century England by Sir Matthew Hale, chief justice. Lord Hale wrote that: the husband cannot be guilty of rape committed by himself against his lawful wife because, by their mutual consent and contract, the wife gave up this kind of rape to her husband that she could not withdraw. [8]It is very surprising to note that Lord Hale did not offer any argument, case law or legal basis to support his claim.

He believed that the wife immediately hands over her legal identity to the husband after marriage and consents to all sexual activities which, for no cause whatsoever, cannot be revoked at any later date. He instituted a notion of implicit agreement throughout the union that occurred at the moment of the engagement and persisted over the lifetime of the union, and Lord Hale found this agreement irrevocable. This established that a woman once married is not entitled to refuse sex with her husband. There is always a presumption of her consent, due to the construction of sex as a woman’s duty within a marriage.

Marital rape And laws in India.

Marital rape is a common problem for a woman who has persisted in the world for centuries.[20] Given this reality, marital rape has generally been ignored in the research on rape and domestic abuse, this topic has gained comparatively little consideration from social science, legal experts, the criminal justice system and culture as a whole even despite examining the need for it.

Although we have made progress in every possible field, marital rape in India is not considered an offence. Notwithstanding revisions, law committees and new laws, an crime in India is not one of the most embarrassing and crippling acts. A look at a woman’s options for protecting herself in a marriage tells us that the laws were either non-existent or obscure and that everything depended on court interpretation.

The final version of section 375 of the Indian Penal Code that emerged after Select Committee deliberations is a crystallized form of Clause 359 of the Macaulay Draft Penal Code. Section 375[21], the Indian Penal Code (IPC) provides for rape, has echoed very archaic sentiments, referred to as its exception clause- Sexual intercourse between man and his own wife, a wife not under the age of 15, is not rape.

Section 376 IPC provides for rape punishment. According to the section, the rapist shall be punished with imprisonment of either description for a term not less than seven years but which may extend to life or for a term of up to 10 years and shall also be liable for fines unless the raped woman is his own wife and is not less than twelve years of age, in which case either description shall be punished with imprisonment.

42nd the Law Commission Report

India’s Law Commission put forward the necessity of excluding marital rape from the scope of Section 375 in its 42nd report. Naturally, the convictions for this crime are very unusual in their terms. We assume it would be better to exclude this crime completely from the application of section 375 and not only in the legal context to term it rape. Punishment may also be provided in a separate section for this offence.[9]

Many women’s organizations and the National Commission for Women have been calling for the removal of the exception clause in section 375 of the Indian Penal Code which states that a man’s sexual intercourse with his own wife, the wife being not under the age of fifteen, is not rape.

 

The Task Force on Women and Children set up by the Government of India’s Women and Child Department, however, took the view that wider debate on this issue should be taking place. The task force ‘s aim was to amend all relevant women-related laws and schemes. Of the four recommendations made under the Indian Penal Code by the Task Force vis-à – vis rape, the most relevant concerns the definition of rape.

They took the view that the definition of rape should be broadened to include all forms of sexual harassment. As per the recommendation, the proposed definition of sexual assault proposed by the Law Commission could be adopted as broad, comprehensive, and acceptable in place of the existing definition of rape in Section 375 IPC. Like the Law Commission, however, the task force also stopped short of recommending the incorporation of marital rape into the new definition.

172nd Law Commission Report

1. The word sexual harassment will substitute Rape.
2. All forms of penetration such as penile / vaginal, penile / oral, finger / vaginal, finger / anal and object / vaginal should include sexual intercourse as contained in section 375 of the IPC.
3. Sexual assault on any part of the body should be construed as rape in the light of Sakshi v. Union of India and Others[10]
4. Rape laws should be made gender neutral, since the law has neglected the custodial rape of young boys.

 

1. A new offense should be created, namely section 376E with the title ‘unlawful sexual conduct’
2. This was also sought to modify section 509 of the IPC, allowing for higher penalty when the offence carried out in the specified provision is performed with sexual intent.
3. Marital rape: Clarification (2) will be omitted from section 375 of the IPC. Forced sexual intercourse between a husband and his wife should be treated equally as an offence just as any physical violence against the wife by a husband is treated as an offense. Section 376 A was to be suppressed on the same reasoning.
4. Under the Indian Proof Act (IEA), where a person has consented to the sexual assault and is refused it, the court shall conclude it is so.

Judicial Stand

Tracing the history of judicial decisions surrounding the infliction of serious injury by the spouse on the wife of the court in Queen Empress vs. Haree Mythee [11]found that in the case of married women, the rule of rape does not extend between the husband and the wife after 15 years of age; even if the wife is over 15 years of age, the husband does not have the freedom to ignore her physical safety, for example, if circumstances arise.

In Saretha vs. T. Venkata Subbaih[35], High Court of Andhra Pradesh held: , There can be no doubt that a decree thus enforced for the restitution of conjugal rights offends the inviolability of the body and mind subject to the decree and offends the integrity of such a person and invades a person’s marital privacy and domestic intimacy.

The Maharashtra v. MAdhukar Narayan Mandikar State Supreme Court[12], has referred to the right to privacy over one’s own body. It was decided in this case that a prostitute has the right to deny sexual intercourse. What is sad to know is that all international assaults have been criminalized and all women, other than mothers, have been given privacy rights to their bodies, thereby allowing for the freedom to withdraw consent and refuse sexual intercourse

Concluding

This is claimed that marital rape should be criminalized in India as that can only be achieved It is claimed that marital rape should be criminalized in India as this can be done by extending an attitude to human freedoms to violence against women. Indian women’s organizations have been successful in raising public awareness and passing domestic violence legislation, but marital rape has not been fully criminalized by abolishing the distinction between marital rape and stranger rape. Yet marital abuse may not be criminalized or prosecuted until legislators and culture acknowledge the human freedoms of women within marriage.

 

[1] Marital Rape: Current Legal Framework in India and the Need for Change

[2] The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993.

[3] Rate of crime against women during 2013, available at: http://ncrb.gov.in/CD-CII2013/CII%202013%20Map/82%20Rate%20of%20Crime%20against%20Women%20-%202013%20-%20Map.pdf (Visited on July 11, 2015).

[4] Haviland, William A.; Prins, Harald E. L.; McBride, Bunny; Walrath, Dana (2011).Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning.

[5] Dr. (Ms.) Rekha Singh, Status of Women in Indian Society, available at: : https://www.bu.edu/wcp/Papers/Huma/HumaSing.html (Visited on July 11, 2015).

[6] Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922

[7] Meaning of Indian marriage, available at: http://vapsoft.org/meaning-of-indian-marriage/ (Visited on July 13, 2015).

[8] Hale, Matthew, 1 History of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972).

[9] http://www.siu.edu.in/Research/pdf/Shaila_Daware.pdf

[10] 2004 (5) SCC 518.

[11] (1891) ILR 18 Cal. 49

[12] AIR 1991 SC 207

Author: Arvind Bhati,
Lloyd law college3rd yearStudent