SHOULD THERE BE A LAW ON MARITAL RAPE? by Mirudhula Mahalakshmi

INTRODUCTION:

“RAPE IS RAPE”

As said in the above quote any form or type of rape is rape. Rape is one of the most heinous crime. Rape is the genus, marital rape is species Marital rape is legal in most of the developed countries. The Supreme Court has held that “rape is deathless shame and the gravest crime against human dignity.” The Legal status of marital rape in other countries is that 52 countries have criminalised marital rape.

MARITAL RAPE:

Marital means Relating to, or connected with, the status of marriage; pertaining to a husband;incident to a husband. Rape means in criminal law, the unlawful carnal knowledge of a woman by a man forcibly and against her will. The word “rape” is derived from a Latin word “raputus” , which means to “seize” Marital rape is also known as Spousal rape. Marital rape means any unwanted acts by a spouse that is committed without other person’s consent. Rape by a spouse, partner is more often associated with physical violence.

TYPES OF MARITAL RAPE:

According to the Rape, Abuse and Incest National network, there are three types of marital rape

  • Battering rape: Battering rape occurs when the sexual and physical violence is together
  • Force –only rape: In this type, physical violence is not present.
  • Obsessive /Sadistic rape: In this type,  sadistic pleasure , torture and perverse sexual acts

Marital rape is the consequence of two very serious primarily problems –violence and predatory sexuality.

IMPLIED CONSENT TO SEX:

“Our Pati is our Parameshwar”

The married women in India have been traditionally assigned in believing their husband as god Thus, a women believes that she obliged in fulfilling the demands of the husband. There is no legal difference given by the law makers on ‘submission’ and ‘voluntary consent” The implied consent to sex indicates as a ‘license to rape’. Sex is an obligation in marriage and also taboo in a country like India. In marital rape, it is believed that marriage gives irrevocable consent to have sex whenever the spouse demands .Section 375 of the IPC criminalizes the offence of rape and protects a woman against forceful sexual intercourse against her will and without her consent but not marital rape. The contract of marriage includes the husband’s right to sex .Men don’t have jus primae noctis.

MARITAL RAPE – BYGONE TIMES:

The historic view on rape was that it considered stranger rape as ‘‘real rape” Marital rape has existed since the emergence of the institution of marriage. In the words of a English jurist, a statement made in 1678.

“The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract”

-SIR MATTEW HALE

This clearly shows the view of Hale, that a woman does not have the right to refuse sex with her husband.

R v. R [(1992) 94 Cr App R 216 ]

In this case, it was held that a man could not be convicted of raping his own wife during the period of marriage because she was deemed to have given consent for marital intercourses under all circumstances.

In ancient societies, Women were considered to be the property of their husband. The first country to criminalize marital rape was Poland in 1932.

RAPE LAWS IN INDIA:

India is one of the 36 countries in the world which still has not criminalised marital rape.

Queen Empress v. Haree Mohan Mythee [(1891)ILR 18 Cal 49]

The case of an eleven year old who died as a result of rape committed on her by her husband. The medical evidence showed that she had died of bleeding caused by ruptured vagina. Rape of child wife was severely condemned and it was held that the husband did not have the right to enjoy the person of his wife without regard to the question of safety to her and the husband was punished under Section 338 of Indian penal Code, 1860.

Law recognises the encroachment upon husband’s absolute right to sexual intercourse is when it becomes extremely dangerous to woman .In India marital rape exists de facto but not de jure .In India rape is a penal offence under S.375 and 376 of IPC, 1860.

Section 375 of The Indian Penal Code which defines the term ―rape exempts marital rape from its ambit of a crime.The law protects women who are subjected to marital rape, by charging the husband with a minor offence of cruelty. The protection of women was given by Domestic violence act was passed in 2005. This act did not consider marital rape as a crime. It does not recognize marital rape as a form of domestic violence. This act says that if a woman undergoes the pain of marital rape, she can approach the court and obtain a decree for judicial separation.

MARITAL RAPE IN FAMILY LAW :

Marital rape is not considered as a ground for divorce The Domestic Violence Act, 2005 has created a good remedy for the Protection of women but the Act has failed to criminalize the Marital Rape.

MARITAL RAPE –AN EXCEPTION TO RAPE:

Under Indian law, exception to section 375, IPC embodies that when the woman is married and who is not less than fifteen years of age, sexual intercourse by the husband is not rape. The exception 2 of section 375 of Indian Penal Code states that non-consensual sexual intercourse by a man with his own wife, if she is over 15 years does not amount to rape. Marital rape is an exception to rape as the IPC does not penalize marital rape.

VIOLATION OF FUNDAMENTAL RIGHTS:

RIGHT TO EQUALITY- Violation to Article 14

The law violates Art.14 as it creates a classification between consent given by a married and unmarried women. The classification is unreasonable and it violates the right to equality.

RIGHT TO LIFE AND PERSONAL LIBERTY –Violation of Article 21

  • RIGHT TO LIVE WITH HUMAN DIGNITY
    • Bodhisattwa Gautam v. Subhra Chakraborty 1996 AIR 922,1996 SCC (1) 490

The SC held that “rape is a crime against basic human rights and a violation of the victims”, it is the violation of right to life in Article 21 of the Constitution.

  • RIGHT TO SEXUAL PRIVACY

Every woman is entitled to privacy. There should be no intrusion of privacy by another person. The right to privacy of rape survivors and the right to privacy in relation to abortion but did not enlarge the rights of marital rape cases.

  • RIGHT TO BODILY SELF DETERMINATION
  • RIGHT TO GOOD HEALTH

CONFLICT BETWEEN SAVING MARRIAGE AS AN INSTITUTION AND CRIMINALISING MARITAL RAPE :

Marital rape is an intimate violence and a sensitive family law issue in a country like India. The exception 2 of section 375 of Indian Penal Code also aims in protection of marriage as a institution as the law clearly does discriminate married women of the age of 15 years, unmarried women and married “marital rape is a serious issue, which has notoriously become a part of the culture.” The issue on not criminalizing of marital rape clearly reveals the true mind set of patriarchs in a conservative society. Because of patriarchal hegemony the women are made to believe that providing her body for sexual pleasure of her husband is her duty and failing to do so will be going against societal, family norms .Due to the patriarchal framework in India, husbands think that they own their wife .Women were reduced to the private property of sexual nature, owned by distinct male owners.

CONCLUSION:

We were married. He wanted sex. I didn’t and was forced.

-a marital rape survivor

Any form of rape must be punished as it is the violation of the most basic human rights and hence the best way that the law can protect women who are subjected to marital rape is by charging the husband with punishments similar to rape. Marital rape must be punished. A law is necessary to govern on the issues of marital rape.

2 thoughts on “SHOULD THERE BE A LAW ON MARITAL RAPE? by Mirudhula Mahalakshmi”

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