Marriage gives no right to rape

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Author – Hardik Singh Nathawat

Manipal University Jaipur


ABSTRACT

What is marital rape? It is the act of sexual intercourse with one’s spouse without the spouse’s consent. It is a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely recognized by law and society as a wrong and as a crime. It is recognized as rape by many societies around the world, and increasingly criminalized. The issue of marital rape in India shows a giant loophole in India’s judicial system as the law fails to provide protection to women. These married women are treated merely as a property of their husbands who believe that they have every right of their spouse under their control and they acquire the right to exploit them as there is no such protection provided by law to married women against these atrocities done by their husband, which is really pathetic and shocking condition seen in India. Laws are rarely being enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal. Though not exclusively, but this spousal rape is more frequently experienced by women. It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways. According to 2018 National Family Health Survey more than 80 percent of married women who experienced atrocities of sexual act by their husbands. Survey of 2014, more than 9,200 men across 7 states in India, one third admitted the forced sex done by them with their wives. Indian society believes that it is alright to do whatever kind of sexual act with a lady as obviously she is your wife. The law makes of India should now bridge the gap between marital rape and rape as they both are heinous crimes which could widespread destruction in victim’s life.

INTRODUCTION

The aim of research paper is to suggest measures against idea of the sacrosanct; institution of marriage and is contrary to women perceptions of reality Though marital rape is the most common and repugnant form of masochism in Indian society, but it is hidden behind the iron curtain of marriage. In country like India  where Social practices and legal codes in India mutually enforce the denial of women sexual agency and bodily integrity ,Rape is rape. Be it stranger rape or marital rape. In India where religion is used  as a tool  to manipulate  the  masses women bear  the  brunt of the consequences  women’s bodies , freedom , choices  are locked in the name of religion and culture of our society and country . If we wanted to uplift the position of women  in true since in our society and country can be made only  when they will be governed by  their own choices , their self worth , their right  over their bodies ,  their integrity and self respect will be recognized only then social and legal changes can bring .

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The law makers fail to provide an adequate remedy against the offence of marital rape. Further  there is need for women themselves must break  against free of societal shackles and fight for justice they should refuse to comply with the standards applied to them as the weaker sex and should fight against the patriarchal society. This paper try to expose the discrimination, shortcomings and fallacies of the criminal justice system in India as regards marital rape. 

The research methodology  adopted for this paper is doctrinal , statues and  secondary sources of information like case laws , books , articles , websites , newspaper .

MARITAL RAPE

Marital rape is defined as unwanted    sexual  in intercourse  by man with his  own wife without her express or by implied consent , either forcefully or by the use of threat or coercion of physical harm . The relationship between the two  individual makes the issue more socially and legally relevant .

TYPES OF MARITAL RAPE

1. Battering rape – battering rape occurs when physical and sexual  violence occur together .Victims may experience the physical and sexual violence at the same time or one may occur after another . The rape may occur after the physical violence as an attempt to make up.

2. Force – Only – Rape – this type of rape happens when physical violence is not present. As with all rape, this type of spousal rape is spurred by a desire to extend power and control over another person. This desire manifests in acting as if sex is an entitled to one party from another.

3. Obsessive or sadistic rape – is a rape that involves torture or perverse sexual acts. This type of marital rape tends to be very violent and results in physical injuries.

The question is what evidences that  courts will relay upon  in such circumstances as there can be no lasting  evidences   in case of sexual acts between a man and his wife .

a) The crime cannot be ignored on a mere assertion that it is difficult to prove.

b) If women is a victim to marital rape it would mean that she is not raped   once but there will be a history of sexual abuse and this can be proved by forensic evidence. There will be evidence of physical is forced rape.

c) Proving  rape is always based  on  circumstantial evidences ,  while the popular imagination rape means a stranger  assaulting  a  woman  in 96 % of the registered cases in India  the rapist  is known  to the victim

LAWS IN INDIA REGARDING MARITAL RAPE

Rape according to section – 375 a man is said to commit rape if he –

1. penetrates his penis , to any extend  , into the vagina , mouth urethra or anus of a woman or makes her  to do  so with him or any other person  , or

2. inserts , to any extend , any object or a part  of the body , not  being the penis , into the vagina , the urethra or anus of women or  makes her to do so with him or any person , or

3. manipulates  any part of body of  a woman so as to cause penetration into the vagina , urethra , anus  or  any of body of such woman or makes her  to do so with him or any  other person , or

4. applies his mouth to the vagina , anus , urethra of a woman or makes her to do so with him or any other person .

Under the circumstances falling under  any of the  of the following  seven  descriptions –

First – against her will .

Secondly – without  her consent .

Thirdly –  with her consent , when  her consent  has been obtained  by putting her or any person in whom she is  interested , in fear  of death  or of hurt .

Fourthly – with her consent , when the mam knows that he is not her husband and that her consent is given  because she believes that  he is another  man to whom  she is or believes   herself  to be lawfully  married .    

Fifthly –  with her  consent  when at  the  time of giving such consent  by reason of unsoundness of mind or intoxication  or the administration by him personally or through another of any stupefying or unwholesome substance , she is unable to understand  the nature and consequences of that  to  which she gives  consent .

Sixthly – when she is unable  to communicate consent .

Seventhly –  when she is unable to communicate  consent  .

Section 375, the provision of rape in the Indian Penal Code (IPC) mentioned as its exception clause- “Sexual intercourse by  man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, 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. If  the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. The same law is unfair with regards to women because the same law protect the age of consent to be 18 years but same law consider that rape after 18 will not be considered as rape.

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But the landmark judgment of Honourable Supreme Court in case Independent Thought v. Union of India with a two judge bench held that sexual intercourse with minor (below 18 years) wife is rape. And quoted “we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the Indian Penal Code to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our constitution can be preserved and protected and perhaps given impetus” Justice Lokur said in his judgment.

Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the CrPC will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

As per S.198 (6) Of CRPC,

“No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence”

It is also clarified that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of “marital rape”

In a landmark ruling, the Supreme Court today read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in these cases.

LACK OF CRIMINALIZATION OF MARITAL RAPE AS A FUNDAMENTAL RIGHTS’ VIOLATION

Marital rape is also a violation of fundamental rights of women specifically under article 14 and Article 21 which reads as “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Even though the crime of marital rape occurs in the private spheres of the individuals then also the state should take the responsibility to penetrate with in this private sphere and if it is not done then the woman will be left without the remedy when raped by the husband.

Violation of Article 14:

Article 14 of the Indian Constitution provides us and ensures us that “The state shall not deny to any person equality before law or the equal protection of laws within its territory of India”. Here although constitution provides and guarantees equality to all but the criminal law discriminates against female victims raped by their own husbands. The time when Indian Penal Code was drafted in 1860’s a married woman was not considered an independent legal entity. Rather, she was considered to be the chattel of her husband. But times have changed Indian law now considers husbands and wives separate and independent legal identities. Further, the exception 2 of Section 357 violates the right to equality provided by Article 14 of Indian Constitution as it discriminates against married women by denying them equal protection from rape and sexual harassments. This exception creates two classes of women which is based on their marital status and their age, as it immunizes the action perpetrated by men against his wife who is of age above 15. And also it discriminates between married and unmarried women by denying them equal protection from rape and sexual assault. Where on one hand forceful sex done by a man against a woman is held liable under section 375 on the other hand if a husband does so with a wife of more than the age of fifteen immunes him from such horrible act.

In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. But as we see the exception 2 it frustrates the purpose of section 375 of IPC. Exempting husbands from such acts who is also a man is contradictive to such objectives as the consequences of the rape is same if the woman is married or unmarried then why to discriminate such crime on basis of mere marital status. Further, it is even more difficult for a married woman to escape those abusive conditions at home as they are financially, legally and socially tied to their husbands. Here, Exception 2 encourages the husband to forcibly enter into a sexual intercourse with his wife (above 15 yrs. of age) against her consent, as they are aware that their acts are not penalized by law in India.  And as no rational nexus can be created between the classification made by the exception 2 of Section 357 of IPC and the underlying objective  of the act, it does not satisfies the test of reasonableness and thus violates Article 14 of the Indian Constitution.

Violation of Article 21

Article 21 ensures us that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Here, Exception 2 of Section 375 violates this Article. The Supreme Court has interpreted this clause in various judgments to extend beyond the purely literal guarantee to life and liberty. Instead, it has held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others. The judicial interpretation has elaborated the scope and meaning of Article 21of the Indian Constitution by leap and bounds and and provides for the right to live with human dignity within the ambit of Article 21. And further, the heinous crime Marital rape violates this right to live with human dignity of a woman and to that effect is violates Article 21. Most recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” Forced sexual cohabitation is a violation of the fundamental right. The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual’s right to a privacy is lost by marital association. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.

THE INSTITUTION OF MARRIGE AND STATUS OF A MARRIED WOMAN

Institution of marriage gives permission to male and female to live together under customary. and statutory law. It is a special bond shared between two souls; it is a physical mental and spiritual unison of two souls. When a male marries with female it means man is duty bound to give due respect to the dignity of wife.  Now question arises whether marriage givers right to the husband to have sex with his wife forcefully or in other words is marriage takes away the right of a lady to refuse to have sex with her husband. This is the harsh reality of India.

PSYCHOLOGICAL AND PHYSICAL EFFECTS OF MATERIAL RAPE

The physical effects of material rape may include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue, 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 . Gynecological consequences include stillbirths, miscarriages, bladder infection, and infertility.

The psychological short – term effects include anxiety, shock, intense fear, sundial ideation, and post – traumatic stress. Long terms effects include disordered eating, sleeping problems, depression, problems in establishing trusting relationship, and increased negative feeling about them. Some marital rape survivors also report flashbacks, sexual dysfunction, and emotional pain for years and psychological effects are likely to be long – lasting.

SUGGESTIONS

1. Marital rape should be recognized by parliament as an offence under INDIAN PENAL CODE

2. The punishment for marital rape should be the same as the one prescribed for rape under section – 375 of the INDIAN PENAL CODE.

3. The fact that the parties are married should not make the sentence lighter.

4. The wife should have an option of getting a decree of divorce if the charge of marital  rape is proved against  her husband .

5. Corresponding changes in the matrimonial laws should be made.

6. Counseling should be given to the victims of marital rape.

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CONCLUSION

First there is need to make people understand that it is a problem. By criminalization the evil practice of marital rape the law will ensure that the women are not alone to fight for what they deserve. It is a major lacuna in criminal law. Marriage is undoubtedly an important institution but violence of any kind should not be condoned by a civilized society after all rape is rape regardless of whether the predator is stranger or spouse. The excuse of poverty and an array of outdated social and religious customs have always been used to stall legal reforms in India. Saying that criminalization of marital rape would be a threat to marriage is equivalent to say that sex is the only factor that holds a marriage together. Women are fighting patriarchy from the womb till today. There is a fear of retaliation and humiliation and family honor are often prioritized over justice. As a result, things are always kept behind the doors. In such a situation it is imperative for law to step in and ensure that the voice of the women to be heard out loud. But the mere declaration of conduct as an offense is not enough. There should be something required to be done for sanitizing the judiciary. There is also a need to educate masses an about this crime. Still India is far from criminalization of marital rape but there is still a silver lining which could turn this into living reality.


Author – Hardik Singh Nathawat

Manipal University Jaipur

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