Sonali Nagariya, SVKM Pravin Gandhi College of Law, Mumbai.
MARITAL RAPE: A STIGMA FOR INDIAN SOCIETY
Years back in few countries there was nothing known as “martial rapes”, people were not aware of it. Since the verb ‘to rape’ originally meant ‘to steal’ (although its meaning shifted during the Middle Ages to ‘violently abducting a woman for forced coitus’), and it is impossible to steal something you ‘own’, and women were treated as property, before marriage owned by her parents and after marriage by her husband.
Historically, on much of the planet, rape was seen as a criminal offense or tort of theft of a man’s property (usually either a husband or father). In this case, property damage meant that the crime wasn’t legally recognized as damaging to the victim, but instead to her father or husband’s property. Therefore, by definition, a husband couldn’t rape his wife. The mindset that a husband can’t be charged with the rape of his wife was described by Sir Matthew Hale (1609–1676) in History of the Pleas of the Crown, published after his death in 1736, where he wrote that “The husband can’t be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself during this kind unto her husband, which she cannot retract”.
The idea of rape in marriage is dished out by the typical Indian cinema could also be a myth and is opposing to women’s perceptions of reality. Though marital rape is that the commonest and repugnant sort of masochism in Indian society, it’s hidden behind the ideological barrier of marriage. Social practices and legal codes in India mutually enforce the denial of women’s sexual agency and bodily integrity, which lie at the guts of women’s human rights. Rape is rape. Be it date rape, stranger rape, or marital rape. The law doesn’t treat marital rape as a criminal offense. Even if it does, the difficulty of penalty remains lost during a cloud of legal uncertainty. The system must be forced to simply accept rape within marriage as a criminal offense. Further, women themselves must break away from societal shackles and fight for justice. They must refuse to suits the standards applied to them because of the weaker sex. This paper is an effort to show the discrimination, shortcomings, and fallacies of the criminal justice system in India as regards marital rape. It goes on to supply arguments and reasons necessitating the criminalization of marital rape.
Physical and psychological effects of marital rape
Despite the historical myth that rape by one partner may be a relatively insignificant event causing little trauma, research indicates that marital rape often has severe and long-lasting consequences for ladies. The physical effects of marital rape may include injuries to non-public organs, lacerations, soreness, bruising, torn muscles, fatigue, and vomiting. Women who are 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 gynecological consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility, and the potential contraction of sexually transmitted diseases including HIV.
Women who are raped by their partners are likely to suffer severe psychological consequences also. Some of the immediate effects of marital rape comprise anxiety, depression, shock, intense fear, post-traumatic stress, and suicidal ideation. Long-term effects often comprise problems in establishing trusting relationships, disordered eating, depression, sleep problems, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors stated hallucination, sexual ailment, and emotional pain for years after the violence.
Types of marital rape
Marital rape is often classified into one among three types:
• Battering rape: This takes in both bodily and sexual violence. Most marital rape victims experience this category of rape.
• Force-only rape: Husbands exercise the minimum amount of force needed to coerce his wife.
• Compulsive or obsessive rape: Torture and/or “vicious” sexual acts occur and are mostly physically violent.
The legal position in other countries
In the United States researchers estimate that 10% to 14% of married women experience rape in marriage. When researchers examined the prevalence of various sorts of rape, they found that marital rape accounts for about 25% of all rapes. Despite the prevalence of marital rape, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and therefore the larger society as an entire. It was not until the 1970s that society began to acknowledge that rape in marriage could even occur. Till recently, the general rule was that a husband could not be convicted of the offense of raping his wife as he is entitled to have sexual intercourse with his wife, which is inferred in the contract of marriage. In 1993, marital rape became a crime in all fifty States, under at least one section of the sexual offense codes. However, it’s remarkable that only a minority of the States have abolished the marital rape exemption in its entirety, which remains in some proportion or other in all the rest. In most American States, resistance requirements still apply. In seventeen States and therefore the District of Columbia, there are not any exemptions from rape prosecution granted to husbands. However, in thirty-three States, there is still some freedom given to husbands from rape suits. When his wife is most vulnerable (e.g. she is mentally or physically impaired, unconscious, asleep, etc.) and is legally unable to consent, a husband is exempt from prosecution in many of those thirty-three States. The existence of some spousal exemptions within the majority of States indicates that rape in marriage remains treated as a lesser crime than other sorts of rape. Importantly, the existence of any spousal exemption indicates an acceptance of the archaic understanding that wives are the property of their husbands and the marriage contract is entitled to sex. In England, earlier as a general rule, a man could not have been held to be guilty as a principal of rape upon his wife, for the wife is in general unable to retract the consent to sexual intercourse, which is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in 1991. The House of Lords held in R. v. R. that the rule that a husband couldn’t be guilty of raping his wife if he forced her to possess sexual activity against her will was an anachronistic and offensive common-law fiction, which not represented the position of a wife in present-day society, which it should not be applied. The corresponding amendment to the law was made through Section 147 of the Criminal Justice and Public Order Act, 1994. This judgment was also affirmed by the ECU Court of Human Rights within the decision of SW v. UK. In New Zealand, the marital rape exemption was abolished in 1985 when this Section 128 of the Crimes Act, 1961 was enacted. Sub-section (4) now provides that an individual is often convicted of sexual violence in respect of sexual reference to another person notwithstanding that they’re married at the time the sexual connection occurred. Further, the very fact that the parties are married or are during a continuing relationship won’t warrant a discount in a sentence. There is at present, therefore, no difference in principle to be drawn between sexual violation in marriage and outside of marriage. In Mexico, the country’s Congress approved a bill that makes marital violence punishable by law. If convicted, marital rapists might be imprisoned for 16 years. In Sri Lanka, recent amendments to the Penal Code recognize marital rape but only about judicially separated partners, and there exists great reluctance to pass judgment on rape in the context of partners who are living together. However, some countries have begun to legislate against marital rape, refusing to accept the marital relationship as a cover for violence in the home. For example, the Government of Cyprus, in its contribution to the Special Rapporteur, reports that its Law on the Prevention of Violence in the Family and Protection of Victims, passed in June 1993, clarifies that rape is rape regardless of whether it’s committed within or out of wedlock.
Position in India
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 a lively role in recognizing it as an offense, in India however, the judiciary seems to be operating at cross-purposes. In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s most cherished fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing marital rape. Though there have been some advances in Indian legislation concerning domestic violence, this has mainly been confined to physical rather than sexual abuse. Women who experience and need to challenge sexual violence from their husbands are currently denied State protection because the Indian law in Section 375 of the Indian legal code, 1860 has a general marital rape exemption. The foundation of this exemption is often traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote: The husband can’t 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 a similar way unto the husband, which she cannot retract. This established the notion that when married, a lady doesn’t have the proper to refuse sex together 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 license to rape• their wives. Only two groups of married women are covered by the rape legislation ” those being under 15 years aged and people who are separated from their husbands. While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for 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 violence against the wife happened in 1983 when Section 376-A was added within the Indian legal code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment that supported the recommendations of the Joint Committee on the Indian legal code (Amendment) Bill, 1972 and therefore the Law Commission of India.18 The Committee rejected the contention that marriage may be a license to rape. Thus, a husband can now be indicted and imprisoned for up to 2 years, if firstly, there is 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 often only piecemeal legislation and far more must be done by Parliament as regards the difficulty of marital rape. When the Law Commission in its 42nd Report advocated the inclusion of sexual activity by a person together with his minor wife as an offense it had been seen as a ray of hope. The Joint Committee that reviewed the proposal dismissed the advice. The Committee argued that a husband couldn’t be found guilty of raping his wife whatever be her age. When a person marries a lady, sex is additionally a neighborhood of the package. Many women’s organizations and therefore the National Commission for ladies are demanding the deletion of the exception clause in Section 375 of the Indian legal code which states that sexual intercourse by a person together with his wife, the wife not being under fifteen years aged, isn’t rape. However, the Task Force on Women and youngsters found out by the lady and Child Department of the govt of India took the view that there should be a wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes about women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian legal code, the foremost 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 Commissions’ 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, just like the Law Commission, the Task Force also stopped in need of recommending the inclusion of marital rape within the new definition. As of now, the law in India is wholly inadequate in providing support mechanisms for women to exercise bodily integrity and sexual autonomy.
Lacunae in Indian law the entire system concerning rape is a mess, replete with paradoxes. The major legal lacunae that are available 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 the right to measure with human dignity is within the ambit of this text. Marital rape 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 elemental right that the State shall not deny to person equality before the law or the equal protection of the laws within the territory of India. Article 14, therefore, protects an individual from State discrimination. But the exception under Section 375 of the Indian legal code, 1860 discriminates with a wife when it involves protection from rape. Thus, it is submitted, that to this effect, the 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 the protection of the dignity of women is a fundamental duty under the Constitution, casting a duty upon every citizen â€œto 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. Of the 664 cases of girls who reported violence in 2015 at NGO Sneha’s crisis counseling centre in Dharavi, 159 women also reported, among other issues, marital rape. At Sneha’s counseling centres at KEM and Sion hospitals, of 218 cases of violence received in 2015, 64 women said that they had faced marital rape.
While marital rape gets documented in hospitals, cases are rarely registered, since it’s excluded from the India Penal Code’s (IPC) definition of rape, says an analysis by Dilaasa, a counseling centre based out of K.B. Bhabha Hospital in Bandra
“When the criminal laws were amended in 2013, I had sought to form it an offense if a separated husband forced himself on his wife (Section 376). Though that was a victory, [the law] doesn’t take care of women who are not separated,” Ms. Jaising said.
In the absence of a law, there is no data on the number of marital rape cases being reported. “We do not have documentation because police don’t record the complaints and therefore the data can come only it becomes a law. But albeit one woman comes forward, it’s still a problem,” said Ms. Jaising.
And it’s not just crime and punishment that criminalization of marital rape will achieve. For many, it could also mean an attempt at life.
A husband can’t be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual activity. This implies that having sex anytime, anywhere, and of any sort is an implied term of the contract of marriage, and therefore the wife couldn’t breach that term of the contract. The law prevents a woman below 18 years from marrying, but on the opposite hand, it legalizes non-consensual sexual activity with a wife who is simply 15 years aged. The Indian legal code, 1860 states that it’s rape if the girl isn’t the wife of the person involved and is below 16, albeit she consents. But if she may be a wife, not below 15, and doesn’t consent, it’s not rape. – Another paradox is that according to the Indian Penal Code, 1860, it is rape if there is non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or imprisonment for a maximum term of 2 years or both, 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 despite the law. Suggestions for reform In light of the above discussion following suggestions are made: –
• Marital rape should be recognized by Parliament as an offense under the Indian legal code.
• The punishment for marital rape should be equivalent because the one prescribed for rape under Section 376 of the Indian legal code.
• The incontrovertible fact that the parties are married shouldn’t make the sentence lighter.
• It shouldn’t be a defense to the charge that the wife didn’t 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 into cruelty or rape as a ground of divorce, it’s advisable to possess the legal position clarified.
• Demand for divorce could also be an option for the wife, but if the wife doesn’t want to resort to divorce and needs to continue with the wedding then the wedding should be allowed to continue.
• Corresponding changes within the matrimonial laws should be made.
It is conceded that changing the law on sexual offenses may be a formidable and sensitive task, and more so, during a country like India, where there’s a contemporaneous presence of a varied and differentiated system of private and nonsecular laws which may inherit conflict with the new amendments within the statutory legal code. Further, though, there’s a requirement for substantial changes within the law on sexual offenses like making them gender-neutral and eliminating the inequalities, a radical overhauling of the structure of sexual offenses isn’t advisable. The immediate need is that the criminalization of marital rape under the Indian legal code. But, mere declaration of conduct as an offense isn’t enough. Something more is required to be finished sensitizing the judiciary and therefore the police. there’s also a requirement to teach the masses about this crime because the real objective of criminalizing marital rape can only be achieved if society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
Marital rape is criminalized in many countries. Throughout history until the 1970s, most states granted a husband the proper to possess sex together with his wife whenever he so desired, as a part of the wedding contract. However, within the 20th century and particularly since the 1970s, women’s rights groups initiated the anti-rape movement, demanding that they tend sexual autonomy over their bodies, including within marriage. These rights have increasingly been recognized, and consequently, marital rape has been criminalized by about 150 countries as of 2019. In some cases, marital rape is explicitly criminalized, in other cases the law makes no distinction between rape by one’s husband or rape by anyone else. In a few countries, marital rape was criminalized thanks to a court decision.
Marital rape isn’t a criminal offense within the Indian legal framework, except during the amount of legal separation of the partners. The marital rape exception, that’s exception 2 of section 375 of the Indian legal code states that sexual activity by a person together with his wife, the wife not being under 18 years aged, isn’t rape. within the 1980s, women’s rights groups lobbied for marital rape to be declared unlawful. officialdom argued that the contract of marriage presupposes consent to sex which criminalizing marital rape, in turn, would degrade family values in India. Forced sex by husbands upon wives does have legal consequences in Indian jurisprudence, therein it is often treated as a matrimonial fault, leading to the dissolution of the wedding. All religious personal laws and therefore the secular law governing marriage and divorce in India deems ‘cruelty’ by one spouse to the opposite to be a ground for divorce. The originally enacted Hindu marriage Act as long as to constitute a cause for divorce, an act of cruelty should be such it ‘produces an inexpensive apprehension within the mind of the petitioner that it’ll be harmful or injurious for the petitioner to measure with the opposite party.’ Marital rape also amounts to ‘sexual abuse’ under the law regarding violence enacted in 2005, under which aggrieved wives or female live-in partners can claim civil remedies, just like the injunction against violence, dispossession from home, or direction to the husband/partner to pay maintenance. The law kicks in to manage sexual violence in marriage only in cases when it’s amid extreme physical violence or when the health and safety of the wife are endangered, as within the case of minor wives.
This exception has restricted application when the wife has been living separately from the husband, with or without a decree of legal separation. In such cases, the husband is often prosecuted for rape. If convicted, the minimum punishment is imprisonment for 2 years and imposition of a fine (Section 376B, IPC). This clause was ratified within the year 1983, a period of great upheaval within the history of rape law reform in India when major changes were made for the primary time since the enactment of rape laws by the colonial state in 1860. The parliamentary committee that gave final shape to the 1983 amendments was disinclined to treating non-consensual sex between a separated couple as amounting to rape because a rape charge would heighten the chances of divorce by making reconciliation that much harder for the couple. Hence, the minimum sentence stipulated for this category of rape was set much less than usual.
Until 2017, there was a discrepancy between the 2 sub-clauses of Section 375. Exception 2 stated that “sexual intercourse by a person together with his wife, the wife not being under fifteen years aged, isn’t rape.” However, an equivalent provision stated that a person is claimed to commit rape if he has sexual relations with a lady with or without her consent when she is under 18 years aged. The court held that the distinction made between a married girl child and an unmarried girl child was illogical and ran against the provisions of the Protection of Children from Sexual Offences Act, 2012. Such a distinction also violated a child’s right to liberty and dignity under Article 21 of the Constitution. Two other significant statutes undermined by the original IPC section were the Prohibition of Child Marriage Act, 2006 and the Juvenile Justice Act, both of which define a child as someone below the age of 18.