Jhinuk Tapadar & Asmita Bandyopadhyay, Students, KIIT School Of Law, Bhubaneswar
“But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
It is not rape - we are married. She gave up her right to say no when we walked down the aisle. That is the exact mindset of the husband behind the commitment of marital rape, where the wife’s apparent dissent amounts to nothing but an unheard plea. The crime gets justified on the ground that a man availing his conjugal rights cannot be accused of rape. It stands crystal clear that a woman has no right to her own body, and her will is subject to that of her husband. Not only marital rape is discriminatory in nature but also forces a woman to live her life without dignity. Despite the ubiquitousness of marital rape, the problem has received relatively little attention from legal practitioners, the criminal justice system, and on a broader spectrum, the society as a whole. Though it is the most common and repugnant form of masochism in Indian society, it is well hidden behind the iron curtain of marriage.
The burning questions which one might ask when facing marital rape are; whether the lawful wife of the husband is just a piece of property to him and nothing else? Why is she being subjugated to such a level that she does not possess any right over herself? Why do our socio-cultural norms as well as legal, sees her only as a property? Why is it that marriage stands as a barrier in front of the law to protect the man who rapes his wife?
From the statement by Sir Matthew Hale, the opinion that resonates; upon marrying the man receives an advance consent from his wife that her sexuality now belongs to him and she by virtue of her marriage loses her right over it. That is precisely what the Law of England believed during the 18th century. However, with the revolution of time and with modernity as its wheel, England changed its view. It declared that “a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.” Not only England but many countries have now criminalised the obnoxious crime of marital rape. However, whatsoever, India still has a long way to go before criminating it which falls among those 36 countries, still left to set aside a punitive provision for the crime.
The word ‘rape’ owes its origin to the Latin term ‘rapere’ which means ‘to seize’ implying forcible seizure which forms the essential characteristic feature of the offence. The main essence behind this crime is the lack of consent from the victim. Marital Rape is the non-consensual act of violent perversion by a husband against the wife, where she is physically and sexually abused. Section 375 of the Indian Penal code, 1860 defines rape, where the principle of consent forms the primary factor to identify the crime. The irony of it is, the very principle becomes immaterial when it enters into the purview of marriage. It intrigues us to wonder that how and what makes the wife (above fifteen years of age) any less than that of a woman or a human being as to the fact that her consent becomes insignificant in the act of sexual intercourse with her husband leading to marital rape which even today goes unrecognised in our society. Marital rape can be even more heinous than murder because here, the victim relives the moment over and over again, resulting in the slow torturous destruction of her psychological state of mind as well.
Marriage is one of the purest forms of the sacrament in our society. Then how can it be linked with such a gruesome crime like rape? Nevertheless, one can trace back its relation in the Bible where it states, “If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered he shall pay the girls father fifty shekels of silver. He must marry the girl, for he has violated her. He can never divorce her as long as he lives.” The statement does bring the question in our mind, that why the victim has to marry her rapist? Because marrying her rapist is almost equal to shattering her bodily integrity and her dignity as a whole. Notwithstanding, she is after all the property of a man. As an unmarried girl, she was the property of her father, who is raped, has lost her value in the society, equivalent to a damaged good. Therefore, the rapist has to accept the damaged good. It is found ridiculous that how easily a rapist can escape unscathed by taking marriage as a shield. “Marital rape exemption is evidently a legacy of this approach. Since an act against one’s property is generally not considered as a crime, therefore, it is assumed that no crime is committed when a man forces intercourse upon his wife, since she is under his possession and ownership.”
Basing on such paradigm, many legislatures have been formed around the world. The Indian Penal Code, 1860 particularly states as its second exception in Section 375 that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The very statute in itself declares that a woman who is above the age of fifteen years and who is married cannot seek the protective umbrella of law if raped by her lawful husband. The criminal law which is supposed to protect its victim from abnormal conduct of another citizen is here unable to do anything. Because on a scary note, it believes in the notion that there can be no disagreement between a married couple on the concept of consent. It is not only the fault of our legislative provisions but also our society in whose eye a married woman is supposed to cater any wish of her husband regardless of her own varying opinion about it.
One of the United Nations reports expressed that in India, it is quite likely that 40% of the women get raped by their husbands than by a stranger. In 2015, a woman filed a petition before the apex court, accusing her husband of rape and assault. Though she was hospitalised for the injuries she suffered, her husband was not prosecuted, and the court dismissed her petition saying that “the law was not to be changed for the experience of one individual.” There was a case as well where the rapist who had gouged out the victim’s eye proposed to marry her. Surprisingly, the judge, without understanding the depth of humiliation and insult that it carries, took up the offer. The victim even though in agony, boldly refused it and only then did the judge labelled the offer as mala fide. In a patriarchal society like ours, the “reasonable person” in the eyes of the law is always a male who thinks that a woman’s bodily autonomy and their rights are inconceivable. Sexual coercion has become so inextricably intertwined with our family structure that it has become almost impossible to separate the two. The societal ethos about the normality of marital rape is imprinted in such a way that the pleas regarding it often goes unnoticed in our society.
Legally, the fundamental rights prescribed under Article 14 of the Indian Constitution vouching for equality before the law and Article 21 giving voice to the right to life and personal liberty of a person is found to be ignored blatantly when passing through the narrow paternalistic norms of our societal structure. Justice Verma Committee in the wake of the December 2012 gang rape case, was formed to strengthen the rape laws in our country, which strongly recommended the exemption of marital rape in the IPC should be removed. It was backed by the CEDAW Committee, which in 2007 observed the same view highlighting the fact that marriage cannot be considered as a mitigating factor for justifying rape. However, it failed to find its place in the Criminal Law Amendment Act of 2013. The 2017 case of Nimeshbhai Bharatbhai Desai v. State of Gujarat reiterated the fact that “making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”. Yet in RIT Foundation v. Union of India the Government retaliated that if marital rape were to be criminalised then that would disrupt the institution of marriage putting the family system under stress and it can be used as a tool for harassing husbands. These kinds of responses from the Centre shows the narrow-mindedness and the innate misogyny rampant in the society to subjugate the women further and therefore lacking the empathy required to save such women from their misfortunes.
With the growing number of COVID-19 cases in the current scenario, the recorded number of domestic violence cases seems to be decreasing because of the continuous watch the perpetrator keeps on the victim. “As the lockdowns impose stricter control on one’s mobility, they put women in abusive relationships at extremely high risk of damage from physical, sexual and emotional abuse.” Henceforth, now more than ever the protection of the State is required to save such battered women. Only because of the lack of proper provision did the victims of marital rape goes unregistered who needs to be heard before it is too late. Alongside a very significant question creeps into our mind; is not the empowerment of women is quite an exclusive key to disrupt the intrinsic patriarchal norms governing our community?
REFERENCES:
Vol. I, Sir Matthew Hale, The History of the Pleas of the Crown 629 (1st Am. ed., Sollom Emlyn ed., 1847).
R v. R [1991] 2 AII E R 265-266.
Sarbani Guha, Ghosal, Socio-Political Dimensions of Rape, 70(1) Ind. Pol. Sc. Asst. 107, 109 (2009).
Priyanka Rath, Marital Rape and the Indian legal scenario (May 18, 2020, 02:23 AM), https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html
The NIV Bible, Deuteronomy 22:28
Sumedha Choudhury, Why criminalisation of marital rape is still a distant dream in India (May 18, 2020, 02:47 PM), https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html
IPC. amend. 22, S. 375.
Dear Supreme Court, Here’s Why Marital Rape Should Be Criminalised (May 18, 2020, 02:14 PM), https://www.thebetterindia.com/123017/supreme-court-criminalise-marital-rape-laws-india/
Stellina Jolly and M.S. Raste, Rape and Marriage: Reflections on the Past, Present and Future, 48(2) Ind. L. Inst. 277, 277 (2006)
Talish Ray, Marital rape: No excuse for the inexcusable (May 18, 2020, 08:48 PM), https://theasiadialogue.com/2020/03/08/marital-rape-no-excuse-for-the-inexcusable/
State v. Ram Singh and Another (Sept. 10, 2013)
Nimeshbhai Bharatbhai Desai v. State of Gujarat [2018 SCC OnLine Guj 732]
Mallory Moench, High Court Questions Centre on Marital Rape: ‘How Do You Justify The Exception?’ (May 18, 2020, 06:58 PM), https://thewire.in/gender/marital-rape-exception-high-court
‘Marital rape brought under law will put family system under stress’ (May 18, 2020, 07:00 PM), https://www.hindustantimes.com/india-news/marital-rape-brought-under-law-will-put-family-system-under-stress/story-9lX7c5KoFPgbzFot5DK1iL.html
Sohini Bhattacharya, Not all homes are safe during lockdown: The never-ending tale of violence against women (May 18, 2020, 08:09 PM), https://indianexpress.com/article/opinion/web-edits/not-all-homes-are-safe-during-lockdown-the-never-ending-tale-of-violence-against-women-6351710/