Humanity stands on two pillars, men and women, they should have equal importance and role in its development and growth, but women have always been subjected to a lot of humiliation by men, rape is an apt example of the atrocities committed against the dignity of women. The offence of Rape is one of the most gruesome and barbarous crimes perpetrated against women. Marital Rape, though not defined as a crime, in India is one of the most debatable and divergent issues. Women have been treated as an object of pleasure since time immemorial. They have been victims of crimes like rape, sodomy, sexual harassment, female infanticide etc. In recent times, where the general public is fighting for equal rights for both men and women the rate of crime against women is proliferating. Rape is a crime due to which women all over the world are suffering. Other countries have tried their best in making laws for the protection of women. India is focusing on protection and prevention of crimes against women but fails to protect a married woman from her rapist who apparently in such cases is her husband, by not having any legal provisions acknowledging marital rape as a crime. There is need for immediate criminalization of marital rape. The research paper submits the reason regarding the failure of law in India by not defining marital rape as a crime and the consequences of the same.
The word ‘rape’ has been primarily derived from the Latin term raptus which literally refers to the act by one man of damaging or destroying the property of another man() . Here, property primarily referred to wife or daughter of another man.
Marital rape, as the name suggests is rape caused to a spouse by her husband. It basically refers to the actual use or threat of use of force by the husband against the wife to compel her into sexual intercourse(). This form of rape also known as conjugal rape or wife rape is also said to have taken place when the wife is compelled to have entered into sexual intercourse in a situation when she is unable to express consent(). This roots back to that age of the history of mankind, when women were considered to the property of their husband. This was also covered by a legal principle of coverture which refers to the wife being covered by the spouse once married, such that she is now his property(). It denies a woman her bodily integrity thus striking a blow at women’s rights().
The issue of marital rape is largely neglected. Patriarchal domination of the society has come up time and again and has granted to the husbands exemption in cases of marital rape basing on the assumption that the wife has given herself to the husband through the contract of marriage(). Modern leaders in support of the victims of marital rape, however, hold that marital rape is also a form of rape and the marital status of the woman should have no bearing on the culpability in the crime of rape(). It is a form of rape that lays hidden under the cover of marital privacy that gives both the husband and the wife, the right to protect the private acts that they both enter with consent: it is not a guard to hide violent acts().
The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside the criminal law, or is illegal but widely tolerated. 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.
Marital rape is more widely experienced by women, though not exclusively. Marital rape is often a chronic form of violence for the victim which takes place within abusive relations. 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. 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 to cultural expectations of subordination of a wife to her husband—views which continue to be common in many parts of the world. These views of marriage and sexuality started to be challenged in most Western countries from the 1960s and 70s especially by second-wave feminism, leading to an acknowledgment of the woman’s right to self-determination (i.e. control) of all matters relating to her body, and the withdrawal of the exemption or defense of marital rape.
Most countries criminalized marital rape from the late 20th century onward—very few legal systems allowed for the prosecution of rape within marriage before the 1970s. Criminalization has occurred through various ways, including removal of statutory exemptions from the definitions of rape, judicial decisions, and explicit legislative reference in statutory law preventing the use of marriage as a defense, or creating of a specific offense of marital rape. In many countries, it is still unclear whether marital rape is covered by the ordinary rape laws, but in some it may be covered by general statutes prohibiting violence, such as assault and battery laws.
Theories of Marital Rape
Various authors have over time come up with different theories regarding the occurrence of marital rape in the society:
· The Feminist Theory: This theory considers marital rape as a tool in the hands of the patriarchal society that is used to exercise control over women. They consider that the exemption given in cases of marital rape is a remnant of the earlier laws regarding women that considered them to be the property of the husband(). The feminists are of the view that marital rape is nothing but a result of a power play by the male spouse in the marriage(). Radical feminists have gone to the extent of arguing that any form of heterosexual intercourse is based mainly on the desire of the man and is another form of oppression on women().
· The Social Constructionism Theory: The believers in the theory of social constructionism are of the view that men have dominated the society in law making and the political arena since ancient days(). Laws thus came as a reflection of the interest of men. Such laws considered women to be their husband’s property after marriage and hence, marital rape was considered an offence of lesser degree as compared with rape(). Some jurisdictions even considered that rape in a marriage is not rape at all(). The social constructionists believe that marital rape is a means through which men try to assert themselves over their wives so as to retain their long gained power over their property().
· The Sex-Role Socialization Theory: These theorists believe that it is the particular gender roles which guide the sexual interactions between the spouses in a marriage. In a marriage, women are always taught to be calm and passive, submissive whereas, men are trained to be dominant and aggressive(). Care and love are attributed to women. Men, on the other hand, are the major perpetrators of sexual entertainment with violent themes(). Sex role socialists are of the view that marital rape is nothing but an expression of the traditional perceptions of sex roles().
One of the origins of the concept of a marital exemption from rape laws (a rule that a husband cannot be charged with the rape of his wife) is the idea that by marriage a woman gives irrevocable consent for her husband to have sex with her any time he demands it().
Marriage was traditionally understood as an institution where a husband had control over his wife’s life; control over her sexuality was only a part of the greater control that he had in all other areas concerning her. A husband’s control over his wife’s body could also be seen in the way adultery between a wife and another man was constructed; for example in 1707, English Lord Chief Justice John Holt described the act of a man having sexual relations with another man’s wife as “the highest invasion of property”(). For this reason, in many cultures there was a conflation between the crimes of rape and adultery, since both were seen and understood as a violation of the rights of the husband. Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman’s right to self-determination.
Once married, a man is bound by the duties of marriage to respect his wife and treat her with dignity(). The concept of matrimonial rape has evolved in the recent period. However, neither in the past nor in the present have such laws been formed which prosecute a married man for forcing her wife to have sex with him. Common law down not provide any remedy for such a torture being caused to the woman, and says that a woman is obligated by the ties of the marriage and thus has to provide her husband with everything that he asks for. Over the years however, with the growing awareness of gender equality the common law as well has been amended thereby criminalizing such activities. In the present scenario, the developed and the developing nations have taken a step forward in protecting woman against such crimes.
In India, marital rape is still not considered to be an offence. Despite many efforts put by the law commission in its reports or bills brought up before the parliament, this horrendous act which uproots the sanctity of a marriage, has not been declared as an offence. A married woman in India has absolutely no laws to protect her and everything only depends upon the interpretation of the courts.
Thus, in India we see that the present scenario with regard to marital rapes is that the offence, in a due factor manner exists in the legal regime but there has been no formal illegalization and criminalization of such offence. In other countries across the world however, such an act has either been criminalized or the judiciary has been actively involved in bringing up reforms in their laws with regard to marital rape.
The Hon’ble Supreme Court is of the view that rape is an act against humanity as a whole(). However, there was no mention as to what was court’s stand with regard to the offence of marital rape. Further, women who want to raise their voices against sexual violence do not have a very strong law supporting and protecting them against the exemption that Section 375 of the Indian Penal Code, 1860, which specifically states that a husband cannot be prosecuted for forcing his own wife to have sexual intercourse.
However, of is not the case that there has been no progress with regard to criminalization of such activities. The addition of Section 376-A is a step towards protecting woman from such torture which criminalizes any sort of force to have sexual intercourse, used on wife who is living separately. The husband can be fined and imprisoned to a maximum of two years.
· Sexual coercion by non-physical means – This form of coercion involves social coercion in which the wife is compelled to enter into sexual intercourse by reminding her of her duties as a wife. This form of coercion entails applying non-physical techniques and tactics like verbal pressure in order to get into sexual contact with a non-consenting female(). The most commonly used non-physical techniques include making false promises, threatening to end the marital relationship, lies, not conforming to the victim’s protests to stop etc.() Such acts of sexual coercion by the use of non-physical stunts though considered less severe in degree as compared with physically coercive sexual acts are widespread and pose a threat to women’s rights in the society().
Ø Battering Rape – This form of marital rape involves the use of aggression and force against the wife. The women are either battered during the sexual act itself or face a violent aggression after the coerced sexual intercourse(). The beating may also occur before the sexual assault so as to compel her into sexual intercourse().
Ø Obsessive Rape – This form of rape involves the use of force in sexual assault compiled with perverse acts against the wife. It involves a kind of sexual sadistic pleasure enjoyed by the husband()
The criminalization of marital rape does not necessary mean that these laws are enforced in practice, with lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute being common in many countries. For instance, in Ireland, where marital rape was made illegal in 1990, by 2016 there had been only two persons convicted of marital rape.
Other problems arise from the fact that, even in countries where marital rape is illegal, many people are not aware of the existing laws. Because in most parts of the world marital rape laws are very new, many people do not know of their existence. In many cultures, traditional ideas about marriage are deeply rooted in the conscience of the population, and few people know that forcing a spouse to have sex is illegal. For instance, a report by Amnesty International showed that although marital rape is illegal in Hungary, in a public opinion poll of nearly 1,200 people in 2006, a total of 62% did not know that marital rape was a crime: over 41% of men and nearly 56% of women thought it was not punishable as a crime in Hungarian law, and nearly 12% did not know. In Hong Kong, in 2003, 16 months after the criminalization of marital rape, a survey showed that 40% of women did not know it was illegal. A 2010 study in South Africa (where marital rape was made illegal in 1993) showed that only 55% of respondents agreed with the affirmation “I think it is possible for a woman to be raped by her husband”. Although in recent years some countries in Africa have enacted laws against marital rape, in most parts of the continent forced marital sex is not a criminal offense. A 2003 report by Human Rights Watch stated that: “With few exceptions across Africa, marital rape is not recognized as a crime, and domestic violence is seen as a right of married men.” The acceptability of domestic violence in most African countries is very high: surveys showed that the percentage of women aged 15–49 who think that a husband is justified in hitting or beating his wife under certain circumstances is, for example, 87% in Mali, 86% in Guinea, 80% in Central African Republic, 79% in South Sudan. Although more countries in Africa are now enacting laws against domestic violence, social norms make it difficult to enforce these laws; and many women are not aware of their rights: for instance in Ethiopia in a survey only 49% of women knew that wife-beating is illegal (it was made illegal under the 2004 Criminal Code). The lack of legal and social recognition of marital rape in Africa has been cited as making the fight against HIV harder.
The act of imposing sexual intercourse against the will of the wife is often not identified as morally wrong, and so it is difficult to attempt to stop the practice, “Often, men who coerce a spouse into a sexual act believe their actions are legitimate because they are married to the woman.”
Current Scenario of Laws In Relation To Marital Rape
Marital rape has been hinted in the Domestic Violence Act, 2005. The Act prohibits any form of sexual abuse in a live in or marriage relationship(). However, this Act provides for civil remedies only. Currently, in India, marital rape is not criminalized under the Indian Penal Code, 1860. Section 375 of the Code specifically excludes acts of sexual violence in a marriage outside the purview of rape(). However, under Section 376(B) of the Code, a man is punished for forced sexual intercourse without the consent of the judicially separated wife. Further, as also seen above, marital rape cannot form a direct ground for divorce under different personal laws.
The provision for rape in the Code that clearly excludes marital rape from its ambit is violative of the provisions of the Constitution of India. Article 14 of the Indian Constitution provides for equality of all persons before the law and prohibits any kind of state discrimination. However, the Exception in Section 375 of the Code discriminates against married women and does not qualify as a reasonable classification. It is thus, violative of the protection granted by Article 14.
Further, Article 21 of the Indian Constitution provides for right to life and such life includes the right to live with dignity. Marital rape infringes upon the right of a woman to live with dignity. Thus, the Exception to Section 375 of the Code is in clear violation of Article 21 of the Constitution.
The Phulmoni Dasi rape case was a case of child marriage and subsequent marital rape in India in 1889, which resulted in the death of the 10-year-old girl, Phulmoni Dasi. The case led to the conviction of the husband in 1890 and triggered several legal reforms().
The case went to trial in the Calcutta Sessions Court on 6 July 1890. The girl’s mother provided testimony against the husband. The husband was convicted under Section 338 of the Indian Penal Code for “causing grievous hurt by act endangering life or personal safety of others”. Under an exception clause in Section 375 of the Indian Penal Code, introduced in 1860, sex with one’s own wife was not considered as rape(). As Phulmoni was of legal age and married to Maiti, he was sentenced to 12 months of hard labor. The case is known as Empress v. Hari Mohan Maiti.
It has tried to provide an understanding as to the nature of the crime of marital rape. This write up has not been restricted to the issue of marital rape as a ground for divorce. Throwing light upon the relevant provisions of different divorce laws in the country, it has tried to point at the loopholes existing in the current system that follows the archaic belief of non-inclusion of marital rape as a ground for divorce. Further, another issue at hand is the non-criminalization of marital rape. These issues coupled together bring forth the intention of the Legislature that indirectly promotes patriarchal supremacy in the society. Apart from the legislative and legal justifications for the same, theorists all over the world have also come up with various theories that justify the non-criminalization of marital rape. In India, some form of progress is seen in the form of the provisions of the Domestic Violence Act that prohibits any form of sexual abuse in a marriage. However, this Act providing civil remedies only is not a sufficient tool in the hands of the women. The Legislature must look into the issue of enacting new laws and provisions for a crime as heinous as marital rape.
In spite of the present situation where marital rape is given little attention by the legal fraternity, it is a serious offence which indignifies a woman. According to Indian law, a woman under sixteen years of age having consensual sex qualifies to be a victim of rape. However, a married woman even if compelled to enter into sexual intercourse is not said to have been raped. The idea that a woman cannot seek legal protection on being forced by her husband to have sexual intercourse is in itself is disturbing.
The United Nations through its Committee on Elimination of Discrimination against Women had brought about the recommendation that India must criminalize marital rape. The Justice Verma Committee that was formed in light of the brutal Nirbhaya gang rape case criminalized various sexual offences but the opinion that marital rape should be made illegal was disregarded completely. This was solely based on the view of the parliamentarians that criminalizing marital rape would bring under stress the institution of marriage and would go against the principles of family harmony. Arguments have also been put forth that if a law criminalizing marital rape is brought forth, it will be abused greatly.
Marital rape leads to the breakdown of the marriage and also destroys the sanctity of the spousal relationship. Despite this situation, it is expected of the wife that she remains silent and continues with the marriage. The worst disadvantage in this scenario is that the woman is compelled to live with the husband, the rapist himself. Hence, there lies an urgent need to bring about substantial changes with regard to the laws relating to sexual offences. For instance, inequalities should be eliminated and gender neutral laws should be framed. Women today who suffer from such crimes must be made aware of their rights and the remedies available to them against such heinous acts. Women should raise their voice against such mistreatment backed by support from the society. Indian culture has always emphasized on equality, strength and not on abuse, control or power. Therefore it is expedient to the need for justice for women that the Indian judicial system criminalizes marital rape and includes it as a fault ground for divorce.
· The Court must carefully scrutinize the facts and circumstances of each case to find out if there were circumstances that could lead to the victim being compelled to not raise her voice against all harassment.
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Author Details: Ayush Patria (Sangam University, Rajasthan)