Marital Rape Laws in India
Introduction:
Marital Rape is also known as Spousal Rape, it is the word
which has two different words which comes together to make One single word.
Each single word has different meaning when compared to Single word. The word Marriage
it’s a tie between the two persons. The word Rape is an unwanted sexual
intercourse. But the word Marital Rape is sexual intercourse with the spouse
without her consent. But the question still arises whether to consider Marital
Rape as an offence or Not an Offence.
Historically the marital rape is not considered as a Criminal
offence. In the 17th Century, Chief Justice Matthew Hale established
the concept of irrevocable consent, which says that men have a right to have a
sexual intercourse with his wife.
This has established an exceptional to marital rape. It has believed that ones
a girl marries a boy then it is considered a consent for everything including
sexual intercourse on this concept the marital rape is not at all in the
scenario.
India has adopted its Penal Code from the England but still
in India marital rape is not considered as crime under Penal Code. Because, in
India it says that the marriage itself gives a consent to sexual intercourse
after marriage, the word consent itself gives a difference between “Rape” and
“Marital Rape”.
One of the well-recognised concepts international is that
Marital Rape is a violation of a Human Rights in the Global text. Marital rape
violates jus cogens laws, like right to life, liberty, protection against
violence etc. Two of the most important international provisions addressing
this issue are the United Nations DEVAW and Beijing Declaration. In 1993, U.N
Declaration on Elimination of Violence Against Women (DEVAW) it declared that
violence against the women including marital rape is considered as violation of
the women under the international Law. In 1995, Beijing Declaration was adopted
as a result of fourth world conference on women Beijing.
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Legal Framework in India:
Marriage is a sacred institution in India, this itself
raises the question regarding rights and consent. Consent is necessary for
disproving the Rape. Marriage gives a Consent then how come the question arises
as Rape. The contentious issue regarding the marital rape in India is Silent.
India is one among the 36 countries which has not criminalized the marital
rape. Generally, the Marital Rape is an “Exceptional clause” this legal gap leaves
a victim unprotected within the marital union.
Indian Penal Code Provisions:
Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by
coercion, misrepresentation or fraud or at a time when she has been intoxicated
or duped, or is of unsound mental health and in any case if she is under 18
years of age."
It’s a Rape if it falls under the following Category:
1.
Against her will
2.
No Consent
3. With consent when she
is in gives a consent in fear of hurt of her beloved one.
4. With consent when she
believes that he is her lawful husband, but actually not.
5. With her consent when
she is unsound mind or in a toxic stage.
6.
With or within her
consent when she is below 18 years of age.
Exception to Section 375 - Marital Exception:
There are two exceptions in IPC section 375, i.e
· Exception No. 1 is that when there is any medical treatment
or intervention then it shall not be a Rape.
· Exception No. 2 When there is a sexual intercourse or a
sexual act by husband with his own wife who above 15 Years of age.
Exception No. 2 is a greatest hurdle to consider Marital
Rape. The constitutional violation takes place in martial rape in the form of
violation of “The Right to equality and Right to Life” under Article 14 and
Article 21.
However, Supreme Court in 2017 Independent Thought v. Union
of India and Delhi High Court in 2022 RIT Foundation v. Union of India held
that part of exception 2 to section 375 which excused marital rape of minor
between age group of 15 -18 years to be held unconstitutional so hence it
should be read as 18 years. But still the marital rape has not been
criminalized if the wife is above 18 years.
The institution of the marriage has been given a greater priority
rather than the protection of the women dignity. Even if we come to conclusion
that the interest of the state is to protect the institution of the marriage
which is the base of the whole healthy society, it doesn’t mean that one part
of the institution suffers irrevocable. Rape is not just a crime it’s a very
inhuman activity which gives a mental trauma as well as medical challenges. It
would be a great injustice to the women by decriminalizing the marital rape,
because it does not mean that by marriage women automatically agrees with the
sexual relationship, mind changes along with the feelings. It’s women
fundamental right to life in accordance to Article 21 of the constitution its
women right to acknowledge an individual authority over their body.
Domestic Violence Act and Marital Rape:
The law is based on the Patriarchal view and here the women
is considered as a property of her husband and through her marriage she gives
an irrevocable consent to sexual intercourse. This is the way where the women are
in the vulnerable position in the marriage, leaving the scope of an abuse
spouse to have a force sex and considering it as a non-punishable offence.
Domestic violence act, it is enacted in various
jurisdiction globally. In India Domestic Violence Act was enacted in 2005 in order to protect the individual from domestic abuse and violence within the
home. It includes various forms of abuse such as mentally, economically,
verbally, physically and sexually.
According to National Family Health Survey report of 2021, 82%
of married men were sexually violent with their wives. By looking at the figure
we can see the need of depth of considering the marital rape.
Despite of this factual approximate figure still in India marital rape is viewed
as a domestic violence. So, the remedies available are civil in nature and it
is limited to “protection orders, judicial separation and Compensation”. In spite of all facts and figure In India the
marital rape victim can seek protection under Protection of Women from Domestic
Violence Act 2005 (PWDVA).
International Perspectives:
Marital rape is a clear violation of the Human right.
International human right prohibits discrimination on bases of gender and also
require state to ensure protection and realization of women rights in all
areas. In December 1993, the United Nations High Commissioner for Human Rights
announced the Declaration on the Elimination of Violence against Women, which
institutes marital rape as violation of the human right.
The significance of right of women has been considered as a fundamental right.
The first country which makes a marital rape as a criminal
offence is Poland in 1932. Every state in Australia has abolished the exception
of marital rape in 1991, it was first common law country to make such rule in
spite of several feminism movement. In New Zealand the marital rape has been
put to end in 1985 itself. In United Kingdom marriage under the age of 16 years
is not at all considered valid. The concept of marital rape has been abolished
completely in 1991. All the 50 US states
have abolished the marital rape in spite of having different laws in each state
this is one of the common laws agreed by all the states.
As of 2019, almost 150 countries have criminalized the
marital rape. In some countries the marital rape is a clear criminal offence
and its an absolute, whereas some countries have considered as no difference
between a man and husband they have treated rape as a rape no question of
husband or other man.
Comparisons with India:
When we consider other countries regarding the marital rape,
we come to know that other countries see only the crime rather than relations.
In India the crime is related with the relation and we also give more
importance to the relation rather than crime. India is a democratic country
here the laws are made from the people and for the people. If we look to the
custom law of India, we believe and follow that women are the private property
of the husband and they leave together when they live together the natural
desire fulfilment with his own wife cannot be considered as rape. But if we
look this concept in other countries, they say that No Consent then it is rape,
the accused is punished for the offence irrespective of the relationship. They
consider that in spite of marriage which gives consent to sexual intercourse
the women have right to say NO. But this is not the case in India. India has an
very compact meaning of marriage.
Types of Marital rape:
The Gujarat High Court in the case of Nimeshbhai Bharatbhai
Desai v. State of Gujarat, 2018,
viewed that not criminalizing the marital rape in the fear of destabilizing the
marriage institution in the phobia of false complaints or misuse of the
provision. This cannot be an excuse as there is a safeguard provisions also
under the law. Marital rape cannot be left unanswered because of such phobia. Indian
law provides a fundamental right as right to life and liberty. Even women are
part of it. Assault by the husband is an offence under the Indian penal code
but if the same husband forces his wife for sexual intercourse, he would be
liable for assault but not an offence of rape as he is in valid marriage.
The court further discussed three types of rape in the society at large:
A. Battering Rape: Women
who has been raped or battered face both physical and sexual abuse in different
ways. Some women also face a physical abuse before or after the sexual assault,
or the rape could occur after the physical abuse in order to satisfy the men’s
ego by raping his own wife against her will. This is the category where large
victim suffer in the marital rape. Almost 48% of marital rape victim suffer in
this category.
B. Force Only Rape: In this type the husband uses only some amount of physical pressure which is necessary to prejudice their wife, physical abuse will not be a prevalent in the marriages. Usually, the assault happens only after women declines for engaging in sexual activity.
C. Obsessive Rape: In this type assault involves physical violence along with the torture and/or perverse sexual acts. This type of rape is described as an sadist rape.
Debates and Challenges:
India is a Patriarchal society where male member of the
society is considered superior than the women. Since the time of immemorial
this system has been followed in our country. In one or other way this factor
has led women to various discrimination and marital rape is one among it. Women
in Indian society tolerate it in a very silent form and it goes unreported. Societal
norms prohibit the word marital rape because it feels that it is the internal
matter of the relationship and no other person is involved along with the taboo
that Marriage is a consent to sexual intercours.
Even a victim is silent because after the report she still has to live with her
rapist in the relationship of husband and wife this gives a permit for a
husband to have a sexual intercourse without her consent. According to latest
family health survey report in India about 30% women aged 18 - 49 reported
having experienced the violence of spouse, average Indian women of 17 times more
likely to face more sexual violence from there husband than any other man. If
we look at the cultural and religious aspect in marital rape, the major
cultural practice in India do not recognise Marital Rape and there are no such
provisions in any religious practise.
Basically, the marital rape is not a new concept it has got
his own historical background and it is very hard to trace, but we can root it
from the colonial period. In the case of Phulmoni devi in the year 1881 it
attracted the larger attention. In this case Phulmoni Devi was an 11-year girl
child and she was married to mid-30-year boy named Hari Mohan. Phulmoni devi
dies due to excessive bleeding when her husband tries to consummate her in
spite of, she being 11-year girl.
As a result, this incident gave a shower of small light on the matter of
marital rape and the authorities formulated law such as Age of Consent Act
1861.
In numerous jurisdictions, there is lack of legislation that criminalize marital rape. The relationship of marriage is a privileged one so the consent or non-consent is a greater challenge in the burden of proof. Legal systems need to be recognized in a unique challenge associated with proving marital rape.
In 2015, the first petition was file in Delhi high court for criminalizing Marital rape. The court issued a notice to central and sought its stand. In 2017 central Government filed an affidavit stating that the Criminalizing the marital rape would lead to destabilizing the institution of marriage. This paved a way for continuing the violence by husband on his wife.
Landmark Case Laws:
The Justice Verma Committee (J. S. Verma Committee) was constituted to recommend amendment to the criminal so that the trial is
quick and justice is served. The committee was constituted by the Indian
Government in 2012 when there was a brutal gang rape and murder of a young
women in Delhi. The committee submitted
its report in 2013. The Committee main task was to look into the laws and
strengthen it which is related to sexual abuse and violence against women. One
of the key recommendations was that to criminalize the marital rape
irrespective of the age of the wife. The committee said that exception in IPC
section 375 is a discrimination in nature.
In Independent Thought vs Union of India (2017) supreme court dealt with the exceptional clause of section 375 of IPC which
dealt with the sexual intercourse age of a girl child which is below 18 years
is considered as rape even if he is a husband. The court noted that it also said
that the child marriage is a punishable offence as it violates the fundamental
right of the child and this exception in the IPC was an arbitrator and
discriminatory in nature. This judgment has been a milestone in dealing with
child marriage and sexual abuse of a minor in marriage. This was seen as an achievement
in gender justice.
Justice K.S. Puttaswamy vs. Union of India (2017),
is a land mark judgment in this case the 9-bench judge recognized that right to
privacy which also included the privacy in the marital affairs as a fundamental
right incorporated under Article 21 of the constitution. As it is a protection
to the women in the marriage of the importance of consent in the sexual
intercourse with their spouse.
In State of Karnataka v. Krishnappa (2000) the Supreme court of India said that sexual violence is a dehumanizing act and
unlawful penetration of an women privacy and sanctity. The court also said that
punishment of a rape should not depend on the accused relationship instead it
should see what the act of the accused, state of the victim and gravity of the
crime.
In Hrishikesh Sahoo vs State of Karnataka,
the High Court of Karnataka in 2022 refused to quash the rape complaint which
is registered against a husband by his wife who was accused of treated his wife
as SEX SLAVE. While dealing with the rape complaint the High court said that “A
man is a man; an act is an act; rape is a rape, be it performed by a man the
'husband' on the woman 'wife'. If it is punishable to a man, it should be
punishable to a man albeit, the man being a husband."
In Anjanaben Modha vs State of Gujarat, the Gujarat High Court in 2023, the High Court observed that the act of rape is
a clear and disgraceful, regardless even he is her husband. The court ruled out
the idea of exception to husband for exploiting or raping his wife.
Recent Developments:
The Public Interest Litigation (PIL) was field in January
2023 seeking the challenges o exception in Section 375 of IPC and
constitutional validity. On the ground that it is discrimination against
married women who has been sexually assaulted. The couple of High Courts
suggested and gave a verdict which favours the Criminalizing the marital rape.
In May 2022, the Delhi High Court gave a split verdict on
criminalizing the marital rape. Justice Rajiv Shakdher said as the existing law as an unconstitutional and said that right to withdraw
the consent is a core right and liberty of the women. Justice C. Harishanker
rejected the plea for criminalizing marital rape as it requires many considerations
of social cultural and legal aspects.
Separate Public Interest Litigation has been filed in Delhi
High Court challenging the constitutionality of sec 198(6) of Criminal
Procedure Code. This section which prevents the court from taking against
marital rape within child marriage after one year.
The proposal for criminalizing the marital rape is been
proposed by Verma committee.
The committee has been proposed the following:
· Removing the exceptional clause in sec 375 IPC.
· Including the clause which state that the relationship with
the accused shall not be an defence.
Some other proposal can be as follows:
· Treating marital rape as a violence same as any other
violence by the husband towards his wife.
· Equal protection clause can be used in criminalizing the
marital rape.
Removing the conflict:
The Right to privacy and right to bodily dignity works in contradiction
in the contest of marital rape. Both steps for the criminalizing the Marital
Rape. The conflict between Right to Privacy and Criminalizing the Marital rape
can be removed. First and foremost, individual privacy has to be given
importance rather than marital privacy. That means, if the individual privacy
is intertwined then there should be a law which prevents the destruction of
privacy of a person. The marital rape is a direct intervention of a married
women privacy and dignity such act cannot be left unseen or unsolved. The
accused cannot cover himself in the name of relationship.
Impact on Victims:
Marital rape is unfortunately one such crime that has been
overlooked or not treated as crime. The impact that the victim face is serious
and unrecognized. It has always been a taboo topic in the society saying as a
privilege relationship. Men decided to punish the women for fighting against
equality or some freedom then he uses the tool of sexually abusing her. Women
who have experienced the domestic violence are more likely to experience
marital rape and has also suffered mentally, physically and halting their
cognitive development.
Sexual violence usually involves the element of holding,
humiliation and denomination along with power. The psychological effects are
more prominent since there behavior begins to shift rapidly. This shifting
leads to damage in their relationship within the family, work environment,
academic achievement and also in social relationship in the society. Marital
rape has more psychological effect because she believed in him but he betrayed
her and behaviors as everything is normal.
Women who are assaulted by their husband is often get hurt
physically. As a result of marital rape many women experience Physical pain
such as pain during intercourse, vaginal pain and bleeding, leaking of urine,
still birth, miscarriages and unwanted pregnancy.
Women who refused the sexual intercourse is usually hit, kicked and also burnet.
Most of the time women don’t want to recognise the marital rape due to societal
trauma and they blame themselves and think that it is their obligation to
fulfil the desire of the husband. All such thinks effect the mental health of
the women as she does everything in pressure or fear.
Conclusion:
In conclusion, Marriage is not a free license to husband to
have a sexual intercourse with his wife against her consent. It has to be very
clear the women are not a subject of property to declare a complete right over
her. As a human same as men, she has her own feeling and comfort zone she has
all natural and legal rights to say no when she is uncomfortable. It is the
time to look over the laws which has been drafted a very long back, and to make
a necessary amendment in looking at the present scenario of the society.
Marital rape should be criminalized as it is an offence
against the women and it also affect the society at the large. It can be
considered as crime as it satisfies the Mens Rea and Actus Reus which are
necessary to prove the crime of the accused. It is the duty of the state to
give equal protection to all its citizen irrespective of the gender. Sadly, but
true India still has not taken any action against criminalizing the marital
rape. No laws directly speak about the marital rape. Unfortunately, due to the
exceptional clause or social norms the marital rape has been increased. The lawmaker has to look into pros and cons while
considering the matter. Moreover, there should be a respect for each other
while taking the “consent” in the relationship.
Therefore, at present before criminalizing the marital rape
it is advised to look ones again the grounds for the marital rape. As
legalizing it pays a way for the benefit of the women who has been undergoing
the sexual assault in their own home. India can look into the countries which
has criminalized the marital rape and take a few benefits and also the negative
side of the act. So, in the present technological world a broad understanding
has been demanded from our society to accept the aspect of criminalizing the
marital rape. It’s a high time now that this issue has to be higher lightened
and should get a greater light so that the changes can be made and women can at
least have a positive ray of hope of justice. There is a word as Justice denied
is equal to Justice Unserved.
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