“Marriage is a mosaic you build with your spouse. Millions of tiny moments create your love story”. -Jennifer Smith Marital rape is an illegal sexual activity done without the consent, using force, the threat of force, intimidation and type of family violence. According to I.P.C marital rape is a non-criminalization activity (sec 375) whereas rape is one of the most gruesome and barbarous activity. How our tradition and customs helped the concept of marital rape and Legal Position of Marital Law under Indian law.
As there is no major difference in marital rape and rape then why the law does has differentiated the punishment amongst this offence also, it will talk about the Discrimination between men and a woman is just a cultural bias, not religious truth. Marital rape is a strong reason why in India there is no equality among men and women, this paper will clearly show the status of Indian women in the 21st century.
As India is a male-dominated society, would women be empowered in a real sense without criminalizing marital rape? Also, it will cover marital rape from a human rights perspective and deals with the case laws, which mainly focus on women undergo torture, enforcing pressure, threats, violence, abuses, molestation in the name of marital rape. The main aim is to review the medical, social, legal aspects of marital rape in India and whether the sex without the consent of wife must be considered as rape.
Rape is the most terrible crime committed against women, in every rape case the injured party is a woman, a woman cannot commit rape due to their biological reasons.1 Rape does not destroy a victim physically but also psychologically. It will have an effect on the body of a woman as well as the soul. The act of using and abusing a women’s body for sexual satisfaction without her express or implied consent is violative of not only an individual’s self-esteem but also for the state as a whole. It is very disgusting that someone’s thought is to use your body forcefully for someone’s sexual happiness.
We have inflexible laws in place to safeguard women from the crime of rape moreover serious punishment have been imposed therein for the criminal. But the percentage of charge of such crime is still extremely sky-scraping and in fact, it is in the growing of our society. In other hands, rape holds opposing views from marital rape which is a bitter reality of our society. Though the general awareness of the society might think about matrimonial rape as a morally and ethically wrongful act it does not observe it as a serious crime. And in fact, frankly or ultimately gives it a social approve in the name matrimonial essential. The most terrible part is that the law of our own nation also, till now, has unsuccessful to distinguish marital rape as an offence and in a sense gives it a legal sanction also.2
WHAT IS MARITAL RAPE
If Rape is the tree, marital rape is one of its branches. There is no proper definition has stated in Indian law for marital rape but in common words marital rape is a vigorous sexual intercourse by a husband with his own wife with no express or implied consent by victim, either forcefully or torture, enforcing pressure, threats, violence, abuses, molestation in the name of marital rape, this makes new issue which is extra socially relevant. Likewise in rape, in spouse rape also there is no express or implied consent of the victim and threat is a tool used by the husband for sexual intercourse.
Although state as a whole considers rape as very grievous offence furthermore law and orders provide punishment under sec 376 of Indian penal code for therapists, but the same law and order completely failed to safeguard married women in case rape done by her own husband without her permission. State as intact also does not believe marital rape as an issue of any implication and gives full power to man.3 Victims who suffer from this kind of sexual violence by their better-half have no place to go, because of societal pressure victims cannot complain this to their family and also legally they are helpless by law though it does not consider marital rape a crime. Thus, victims of marital rape are forced to bear the pain mutely and have no cure in sight.
REASONS FOR MARITAL RAPE
Currently, in our society, the most important cause for this marital menace is broadly stretched is gender inequality in addition to it, the facet of our patriarchal and male-dominated system of societal norms where women both married or unmarried does not have equal rights in society. This is another weapon which man has to conquer and to take advantage of women. Furthermore, one of the reasons is the role of tradition consigned to married women in our culture.
The role of married women defined in culture is of pati-vratastri means pure, truthful and courteous women. Thus, each and every married woman is believed to follow her husband’s commands completely and fulfil all his wants without any inquiring. So the perception of ‘good wife’ is in favour of men not women. Sexual activity has been measured as an important part of a woman’s responsibility towards her husband and wife is not supposed to refuse her husband. Her responsibility ought to be of obeying and surrender. India is spellbound in age-old customs and the discussion in India to criminalize marital rape have nearly been stuck from past few decades as mindset of Indian is still not ready to admit that marital rape is an offence and as we are so fascinated and blind to save the purity of marriages that we do not realise those type of marriages are already broken and are beyond renovate.
The Indian tradition system and cultural values have closed their eyes and ears and not tackled with the real current issues faced by society. No doubt, In India Hindu religion and conjugal life gives the right to have sex with wife. On the other hand, Hindu faith and its journalism stress on purity, cleanliness and behaviour of good faith in conjugal life, it cannot be said that Hindu religion and traditions free from the terrible act of rape to wife. Sexual intercourse in married life is a common course of behaviour, which has to be based on mutual consent. No religious conviction has ever taken it as legal because the motive of a good religion is not to disgust or cause loss to anyone.4
Wife’s Economic dependency over her husband and in-laws is one of the reasons that married women were failed to safeguard themselves from a regular practice of marital rape and are bound to undergo the violence. Another most important reason is the absence of legal provisions identifies marital rape as an offence; which give confidence to the man for continuing with this behaviour.
SPOUSE RAPE IN THE EYE OF LAW
The major dissatisfaction in dealing with the ill-nature of marital rape is that it is not a crime in the eye of law in India. Not the Indian Penal Code, 1860 or several other specific legislation such as the Domestic Violence Act, 2005 specifically identify marital rape as an offence. Although conjugal rape is one of the most shameful and undignified experience for a woman but our legislatures until now does not get it appropriate to amend existing penal Acts or to ratify new specialized legislation to defend married women from this ongoing violence.5
The state is uncertain to criminalize marital rape as it would require them to amend laws based on religious practice, including the Hindu Marriage Act 1955, which says a wife is bounded by a responsibility to have sex with her husband.6 The parliamentary panel investigative the Criminal Law (Amendment) Bill, 2012, alleged that “In India, from the era, the family structure has changed. Family is able to resolve the (marital) troubles and nearby is also a provision in the law for cruelty not in favour of women, It was, felt for that reason that if marital rape is conveyed under the law, the entire family system will be under huge stress and the committee may conceivably be doing more unfairness”.
MARITAL RAPE EXCEPTION OF INDIAN PENAL CODE
Section 375 of IPC defines rape. It has listed some acts which shall be considered as the offence of rape, and also it provides conditions which must be fulfilled to bring acts as defined in the purview of rape.
“When a woman is raped by an unfamiliar person, she has to survive with a scary memory. When she is raped by her companion, she has to survive with the rapist“.
An illegal act committed by the person to whom the victim is married, unable to give her consent, using force, the threat of force and intimidation is considered as spousal rape or marital rape. It is one of the most gruesome and barbarous crimes against women .Considered as violence given by her husband to his wife amounting to physical, sexual and mental abuse.
According to statics in every 6 hours, there is a married woman who has been burned, beaten up to death and even commits suicide due to emotional abuse of his own husband.
The exception to Section 375 states that non-consensual sexual intercourse by a man with his own wife if she is over fifteen years, does not amount to rape. It thus keeps outside the ambit of rape a coercive and non-consensual sexual intercourse by a husband with his wife above fifteen years of age and thereby allows a husband to exercise with indemnity, his marital right of non-consensual or undesired contact with his wife.7
There is no legal protection against marital rape. The provision of rape in Section 375 of the Indian Penal Code (IPC), has to echo very archaic sentiments as mentioned in exception 2 – Sexual contact by husband with his own wife, the wife not being below 15 years of age, is not rape.8
It is believed that the husband’s immunity for marital rape is premised on sexual intercourse. Her husband has the right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to surrender or submit to his will and desire. It also aims at the safeguarding of family institution by choice out the chance of false, untrue and provoked complaints of rape by wife against her husband and the realistic procedural troubling that might arise in such a legal proceeding. However, sexual intercourse with a wife, whose marriage with him is void as he was already married and had a living spouse and who was aware of the fact of the first marriage amounts to rape.9
Further non-consensual sexual intercourse in terms of the acts mentioned in Section 375 (a) to (d) under the Indian Penal code, by a person with his own wife who is under a decree of separation or otherwise, is living separately is made an offence under the Indian Penal Code.6 The punishment provided for non-consensual sexual intercourse by a man with his wife living separately is however compared to that is provided for consensual or non-consensual sexual intercourse with his own wife when she is below the age of fifteen years of age, which by virtue of exception to section 375 amount to rape is very mild.10
No court is empowered to take cognizance of the offence of sexual intercourse by husband upon his Prima facie satisfaction of the facts which constitutes the offence upon a complaint having been caused or made by the wife against the husband.
Many issues have judicial activism, but when it comes to marital rape the courts almost take a step back, as if to say what happened in private sphere, in matrimonial privacy is not the business of the state. Whereas judiciary interferes in a marital relationship through other criminal provisions such as adultery domestic violence and dowry. Because of the presence of Section 375 exception and the absence of judicial consciousness on the subject, no data is present on the number of marital rape cases being reported.
In Bishnudayal v. State of Bihar13 where the victim, a girl of 13 or 14 years of age, who was sent by her father to accompany the relatives of his elder daughter’s husband to look behind her elder sister for several time, was against her will ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376 of IPC. However, under section 376B of IPC sexual contact with one’s own wife without her permission under a decree of judicial division is punishable by 2 to 7 years imprisonment.11
In RTI Foundation v. Union of India14 the Central Government presented to Hon’ble High Court of Delhi that Criminalizing Marital Rape may subvert the institution of marriage. Central Government further submitted that just removing Exception 2 will in no way serve any constructive function as a man is believed to commit ‘rape’ as defined under Section 375 of IPC cannot be alike in the case of marital rape. If the entire sexual acts done by husband with his own wife will become licensed to be marital rape, then the judgment as to whether it is a marital rape or not will exceptionally rest with the wife. The issue is on what evidences the bench will rely upon in such situations as there can be no long-lasting evidence in case of sexual acts between husband and his own wife.
In Independent Thought V. Union of India15 The Hon’ble Supreme Court of India on 11th October 2017, In vision of the above discussion, I am unmistakable of the opinion that Exception 2 to Section 375 IPC in so far as it speaks about to a girl child under 18 years is liable to be struck down on the subsequent grounds:– (i) It is arbitrary, unreliable, whimsical and violative of the rights of the girl child and not just and reasonable, thus, violative of Article 14, 15 and 21 of the Constitution of India; (ii) It is biased and violative of Article 14 of the Constitution of India and; (iii) It is contradictory with the provisions of POCSO, which must succeed.
The Law Commission of India in its 172nd Report on ‘Review of Rape Laws’ as well as the National Commission for Women have suggested for rigorous punishment for the offence of rape. The report anticipated that the sexual intercourse by a husband with his own wife not being under removal of the exception to section 375. The Protection of Women from Domestic Violence Act, 200512 has only formed sixteen years of age is not sexual assault. The commission was also not in favour of a civil remedy for marital rape, without criminalizing the same.
WHY MARITAL RAPE IS NOT AN OFFENCE?
Although the majority of the developed nation has penalized for marital rape, shockingly, there is no law to shelter for married women against spouse rape in India – Home Affairs minister Mr.Haribhai Chaudhary once told that marital rape can’t be made a criminal offence in India due to high illiteracy rate, poverty, greatest religious beliefs, customs and the very ‘sanctity’ of marriage.
In the landmark case Independent Thought v. Union of India, the Centre told the Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta that it stands by Exception 2 of Section 375 of the IPC to afford security to the husband, his minor wife and the purity of their matrimonial relationship. Independent Thought, an NGO (non-governmental organisation), in a petition in 2013, had challenged Exception 2, which states that sexual intercourse by a man with his own wife, the wife who is under 15 years of age, is not rape.
But why there are two guidelines to classify rape – rape of a married woman and unmarried woman? Is it okay to separate a woman just because she is married to the man who raped her? The most excellent approach that the law protects women subjected to marital rape is by laying the blame on the husband with a minor criminal offence of cruelty, the punishment of this could be three years in jail or a fine or both. In poorer cases, a victim could seek out warning order and defence under domestic violence legislation. The Director of social and economic development at the ICRW (International Centre for Research on Women) Miss. Priya Nanda had told a foremost doorway, “The reason men don’t want to criminalise conjugal rape is that men don’t wish for to giving a woman the power to say no.”
However, there is a difference in the same condition. It says that a man is said to commit rape if he has sexual intercourse with a woman with or without her consent, only if she is under 18 years of age. Independent Thought’s petition to the judiciary was simple: It urged that all minors be protected from rape under Section 375, irrespective of marital status. But the petition was rejected.
Law presupposes that in a marriage, the wife has authority to provide all types of matrimonial responsibility to her husband which including sexual intercourse which she cannot withdraw later on. This ancient rule is still managing to survive and is the main barrier in identify marital rape as an offence. Without any specific legal provision in place, it is almost impossible to stop this misrepresentation of marital rape. Victims of this ethical offence have no place to go. Perhaps the last source the victim has is non-other than Judiciary. Judiciary of our country has certain discretions which it can use to identify marital rape and a grave moral and ethical crime which could be liable for harsh punishment.
Moreover in several cases judiciary is doing the similarly throughout judicial activity, for instance: In one of the most recent cases Judge Dr Kamini Lau, has observed: “Non appreciation of marital rape in India, a nation has set upon a rock layer of equality, this is a gross double standard and insincerity in law which is from central to the subordination and suppression of women.” “People in India were yet to recognize the woman’s right in control of marital intercourse as a core part of equality” and the highlight is that “woman has full independence over her own body, identification of marital rape and unpleasant sexual acts, and raising opinion against it is the first important step towards achieving Sample equality between man and woman.” “Marital rape is offensive to morality and liberty and any kind of sexual perversity is required to be exposed, addressed and condemned.”
But in absence of any specific provisions of law, the judiciary is also bound and cannot of its own consider forceful sexual intercourse by a man upon his wife as marital rape. Therefore it is needed that the legislature of our motherland and also the law commission of India must come around to the fresh and changing reality of current period and provide much needed legal protection to miserable married women who suffer silently in their homes without any help in sight. Also, the society in general and every household, in particular, should also start to disown and condemn such behaviour by a man against his own wife so that the offender husband will not get any type of permit for his criminal activity.
Such a hopeful activity by the society as well as law and order would help a married women’s sense of security and provide them with an equal mechanism in case of marital rape. The idea of a right to equality protects our constitution and it will remain as a dead letter in case the women of our country were not given any kind of right over her own body and will not have any option of implementing their own choices as far as the sexual relationship in marriage is concerned.
Briefly, it can be said that contrast between marital rape and rape should have vanished because marriage does not grant authority for commit rape, a husband is not master of wife and the self-esteem of women either married or unmarried is identical.
|2||51Kiran Bedi on Marital Rape. (2015, May 4). Retrieved February 14, 2018, from NDTV News: https://www.ndtv.com/opinion/the-sordid-reality-of-marital-rape-760245|
|4||http://legalperspectives.blogspot.in/2009/10/marital-rape.html visited on 31.5. 2013|
|7||KI Vibhute, “Rape within Marriage” in India: Revised‟, Indian Bar Review, 2000, Vol 27, P. 167|
|8||KI Vibhute, “Rape within Marriage” in India: Revised‟, Indian Bar Review, 2000, Vol 27, P. 167|
|9||5 Bhupinder Singh V. Union Territory of Chandigarh (2008) 8 SCC 631, (2008) Cr LJ 3546 (SC)|
|10||Bishnu Dayal V. State of Bihar AIR 1981 SC 39)|
|11||376B. Sexual intercourse by husband upon his wife during separation: Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.—In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.|
|13||A.I.R. 1981 S.C. 39 (India).|
|14||W.P. (c) No. 382 of 2013 (India).|
|15||W.P. (C) No.284/2015 (India).|