Maitri Goal, Student, Amity Law School, IP University
Aashita Jain, Student, IIMT School of Law, IP University
Introduction
Rape is derived from the Latin term rapio, which means 'to seize'. It signifies in common terminology,
"as the ravishment of a woman without her consent, by force, fear or fraud "or" the carnal knowledge of a woman by force against her Will".
In other words, rape is violation with violence of the private person of a woman, an outrage by all means.[1]
Marital rape is rape done by a husband upon his wife. It is also called as spousal rape. It is an immoral act where a man engages in undesired sexual intercourse with his wife. It refers to non-consensual sexual intercourse by a husband with his own wife. The consent can be obtained through force, the threat of force or physical violence. It is considered as one of the most reprehensible offences which obliterate the primary covenant of marriage, that is, consensus.
Rape is an act of utter humiliation and degradation and violation of one’s right. A violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm, it is too often understood as an oxymoron due to the fact that the thought of permanent consent underlines the legal and cultural definition of sex in marriage. Marriage is one of the most respected institutions in our culture. It is wrong to believe that the consent for sexual intercourse with the wife is obtained by the husband when she has consented for the marriage with him. Marriage is not a certificate to have sexual intercourse with wife in the absence of her consent. Marriage is not a permit to rape. The existence of marital rape has scarred the trust and confidence of the institution of marriage.
In the U.K., it was held that any non-consensual sexual activity within marriage is rape[2].
Marital rape is criminalised in 150 countries; however, India is an exception to it. Section 375 of the Indian Penal Code (IPC),1860 exception two states, “Sexual intercourse by a man with his own wife, the wife not being under the age of 15 years of age, is not rape.” It decriminalises marital rape in India. Exception 2 of 375 of the IPC does not state any reason for the exclusion of sexual intercourse or sexual acts between a man and his wife from the purview of rape. The exception under section 375 has a narrow purview as it deals with the offence of rape in a marital bond if the wife is 18 years of age or above. Marriage is a bond of trust and affection and unwilling sexual contact without consent amounts to the criminal offence.
Kinds of Marital Rape
The following are three kinds of marital rape which are prevalent in society:
1. Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways. Some instances are those where the wife is battered during sexual, physical violence. The husband may make up to his wife and forces her to have sex against her will.
2. Force: In this type of rape, husband uses force that is necessary to coerce his wife. In such cases, women who refuse to have sexual intercourse face such assaults and battery may not be characteristic.
3. Obsessive rape: It is labelled as a sadistic form of rape. It involves brutal torture and perverse sexual assaults and is commonly violent in form.[3]
Violation of the Constitutional Rights
Exception 2 of Section 375 IPC,1860 is a direct contravention of human rights regulations and Article 14 and 21 of the Indian Constitution. Article 14 of the Constitution provides “equality before the law and equal protection of the law”. This exception violates Article 14 of the Indian Constitution as it creates an unreasonable classification and artificial distinction between a married girl and an unmarried girl. This distinction is arbitrary, unreasonable and unfair; there is no rational basis for distinguishing between marital rape and non-marital rape. In Budhan Choudhary v. State of Bihar, [4]It was stated that there must be a nexus between the basis of classification and the object of the Act under consideration.
Article 21 states that “no citizen shall be denied the right to life and personal liberty except for the procedure established by law.” It is a strict violation of the right to live with dignity of women and the right to privacy under Article 21. The immunity given by-law under section 375 second exception based on the marital relationship between the husband and wife is unjust and unfair. Wife is not husband’s possessions; marital rape is traumatising for woman, both mentally and physically.
In the case of State of Karnataka v. Krishnappa[5], it was held that “sexual violence apart from being a dehumanising act it is an unlawful intrusion of the right to privacy and sanctity of a female.”
The reproductive rights are further equated with the right to personal liberty, dignity and privacy under Article 21. In Suchita Srivastava and Another v Chandigarh Administration,[6] it was held right to make choices regarding sexual conduct is within the scope of the right to personal liberty under Article 21.
Insufficiency of Alternative Remedies
The Protection of Women against Domestic Violence Act, 2005 considers sexual abuse as domestic violence under section 3(a). Further, under Explanation-I provided for Section 3, the Act specifies that sexual abuse shall include any conduct of sexual nature which degrades, humiliates or affects the dignity of women, therefore; the Domestic Violence Act considers sexual abuse by the husband as domestic violence against the wife, but it is inadequate in order to punish the husbands who commit the inhumane act of marital rape.
Section 498 A of Indian Penal Code, 1860 which deals with cruelty is one of the remedies available to the victim of marital rape; however, it is not adequate because of the following reasons:-
Cruelty cannot be recourse or a remedy in case of marital rape as there is no specific definition of cruelty; it varies from case to case. Under IPC both rape and cruelty are differently defined both have different essentials they are two separate offences;
The punishment for cruelty is three years, and the punishment for rape is life imprisonment;
In order to establish cruelty, one needs to show it had happened time and again, so one or two instances of marital rape will not be held as cruelty.
Hence the concept of cruelty cannot in any manner deal with the concept of marital rape.
Anachronistic Reasons for Non-Criminalisation of Marital Rape
The exemption of marital rape is traced down to 1600s where according to jurists Lord Hale “ A husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract that the wife hath given up herself, in this kind unto her husband which she cannot retract”[7]. It is a wrong notion that prevails in our society due to which criminalisation of marital rape has not been taken place; there is a need to move away from this barbaric principle. The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was "incorporated and consolidated into that of the husband." [8]
The report prepared by the Rajya Sabha Committee on Home Affairs opposed the removal of the second exception on marital rape. The Committee felt that women have other means of approaching the Court if she was aggrieved with the acts of her husband. They held that the entire family system would go under pressure if marital rape was brought within the scope of the law and would to injustice.
The Law Commission was directly faced with the validity of the exception clause in the 172nd Law Commission Report. It was argued that when other instances of violence by a husband toward wife was criminalised, there was no reason for rape alone to be shielded from the operation of law. The Law Commission rejected this argument since it feared that criminalisation of marital rape would lead to “excessive interference with the institution of marriage”.[9]
The notion that bringing martial law within the purview of marriage will destabilise the marriage needs to be eradicated from society in order to protect the women from the clutches of their husbands.
Recent Developments
In the landmark case of Independent Thought v. Union of India[10], the Supreme Court dealt with the aspect of marital rape in cases where the age of the wife is between 15 to 18 years. Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The court held that exception 2 of sec 375 was repugnant to the provisions of The POCSO Act, 2012 and ultra vires the constitution. This judgment of the Apex Court increased the age of wives from 15 years to 18 years under the exception 2 to Section 375 of IPC, but this judgment did not criminalise the act of marital rape it only increased the age bar.
The Hon’ble Supreme Court in Joseph Shine vs. Union of India[11] said that “Wife is not a chattel” which inferred that the husbands should not treat their spouse as a sexual object in order to satisfy their lust against the consent of their spouse. There is a need to empower helpless wives who fell prey to their husbands and in the absence of an adequate remedy have to live with them throughout their lives
The J.S. Verma Report, committee gave a four-prong suggestion to criminalise marital rape effectively. It asked for the removal of the exemption clause, and it asked to specifically mention that it is not a defence, that there would not be a presumption of consent and lastly, that the quantum of punishment is the same.[12] Even after the recommendation of the J.S Verma Committee 2013 and Pam Rajput Committee 2015, the lawmakers have not taken any action against marital rape.
The wife's body is unqualifiedly her own — a woman is no more bound to yield her body to her husband after the marriage between them than before until she feels that she can do so with the full tide of willingness and affection”.[13]
In RIT Foundation v. Union of India[14], it was held
“marriage does not mean that the woman is all time ready willing and consenting for establishing a sexual relationship. In a relationship like marriage, both the husband and wife have a right to say ‘no’ to physical relations. It further emphasised and stated that being married does not include that the wife is always ready for sex.”
Recommendations
Insertion of Section 114 B in the Indian Evidence Act, 1872
114B: No presumption of consent in prosecutions of rape: There shall be no presumption of consent in prosecutions of rape, even if the accused is the husband of the woman.
The Indian Penal Code is a 160 years old document at that time in the society, the archaic understanding of the role of women in a marriage was to view women as property belonging to the husband.[15] However, today the status of women has changed, and they have equal rights under their personal laws as well as under the constitution.
The Gujarat High Court held it is time to jettison the notion of implied consent in marriage. The law must uphold the bodily autonomy of all women irrespective of their marital status.[16] There is established case law recognising that past sexual activities of the woman are not required for establishing the existence of consent.[17]
The view that there is a presupposition of consent under marriage is wrong “The implied consent justification is not only offensive to our valued ideals of “personal liberty” but does not sound where the marriage itself is not irrevocable.”[18]
Stephen J Schulhofer proposes, “An adequate system of law can place sexual autonomy at the forefront of concern and afford it comprehensive protection, in the same way, that we protect property, labour, informational privacy, the right to vote, and every other right that is central to the life of a free person.”[19]
Shashi Tharoor, senior Congress leader, introduced a private bill titled “The Women’s Sexual, Reproductive and Menstrual Right Bill, 2018” with the object to “emphasis on the agency of the women in her sexual and reproductive rights and to guarantee menstrual equity for all the women by the State.”
The Bill seeks to amend Section 375 to criminalise rape of a woman within marriage by her husband and to expand the scope of consent within marriage. The Bill also stipulates that “the women’s ethnicity, caste, religion, education, profession, clothing preference, entertainment preference; social circle, personal opinion, past sexual conduct or any other related ground shall not be a reason to presume her consent to the sexual activity.”[20]
The only instances of rape being committed within marriage are that when the wife is minor and secondly, where the spouses are living separately under the judicial separation decree. The punishment for marital rape under the judicial separation decree is lower than the punishment of rape under section 376 of IPC. The law clearly validates the permissibility of marital rape in favour of the husband. The absence of criminal liability has existed since the pre-constitutional era. The affirmative Model of Consent was adopted by the Bill. The Bill is still pending in the parliament.
It is a crying shame that 1 Indian woman is raped by her husband in every 3 seconds and 1 in 3 men admit raping their wives. The World’s Shame: The Global Rape Epidemic found that India was only 10 out of 82 jurisdictions surveyed that legalised rape within marriage and protected husbands from prosecution.
Conclusion
Marriage is not a husband’s right to coerced intercourse on demand. The rapist has to be considered a rapist and to be punished as one regardless of his relationship with the victim. No exemption should be given to the husband. It is a mortifying act which shakes not only the victim but also the very institution of marriage which is based on respect & affection. The lawmakers in a progressive nation cannot turn a blind eye towards the women who are raped within the bond of marriage. Sexual intercourse should no longer be treated as obligatory in marriage; married women have a right to say “NO” to her husband. Marriage does not mean that women are always consenting to sex. The state cannot legitimise spousal sexual violence. It is essential to break the old age standard that “marriage sanctions sex”. No provision in the law states that the consent of the wife is presumed upon marriage. The criminalisation of marital rape is vital to reduce the spousal domestic violence to perpetuate with fear of sanctions. The Medical practitioners and psychologist have claimed that the family systems have failed to protect the injustice caused to wife due to marital rape. The non-intervention of the state in the family system denies the married women the right to dignity, autonomy and bodily integrity. Hence the second exception should be deleted, and marital rape should be criminalised in India.
[1] Phul Singh v. State Of Haryana, AIR 1980 SC 249. [2] R. v R. [1992] 1 AC 599. [3] Nimeshbhai Bharatbhai Desai v. State of Gujarat , R/ CR. MA/26957/ 2017 ( Gujarat High Court 2/04/2017). [4] AIR (1955) SC 191. [5] (2000) 4 SCC 75. [6] (2009) 14 SCR 989 [7] 1 Hale, History of Pleas of the Crown, p 629. [8] 1 Blackstone's Commentaries [1966 ed.], p 430. [9] Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at http://www.lawcommissionofindia.nic.in/rapelaws.htm [10] (2017) 10 SCC 800. [11] WP (CRIMINAL) No.194 of 2017. [12] J.S. Verma Committee Report Amendments to criminal law [13] From, At Odds, Carl N. Degler (Women and the Family in America from the Revolution to the Present. [14] W.P( C) No. 284/2015 [15] Lisa R. Eskow, The Ultimate Weapon: Demythologizing Spousal Rape and Reconceptualising its Prosecution, 48 Stanford L. Rev. 680 (1996) [16] Supra 3. [17] Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171. [18] Smith v. State 85 N.J. 42 6A. 2d at 41. [19] S.J. Schulhofer. Cambridge, MA: Harvard University Press, 1998. [20] The Women’s Sexual, Reproductive and Menstrual Right Bill, 2018 (pending).