By Avinash Kumar 24 August 2020
Rape is said to have been committed when a man, by applying physical force or by using his authority over the female violates the modesty of the victim, rape is considered to be a heinous crime which could be done against any of the female members of the society. In the words of Justice ArjitPasayat, “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female” and hence is of inhumane nature. Societies around the world especially the Indian society consider rape to be a crime against the society as a whole and its judiciary prescribes harsh punishments to the wrong-doers, the same Indian society though for ages had put a blind eye towards the wrong of marital rape. Marital rapes too are when a woman is forced to have intercourse for which she had not consented, the only difference being is that the wrong-doer here is the husband of the victim. As per Indian society, marital ties bind the couple in a sacramental knot and hence the affairs of such intimacy are considered to be something of the couple’s private affair. Hence in the Indian context, marital rape is something that legally does not exist. As per the essentials for rape take into consideration whether the consent was given by the victim and how the consent was given, in the Indian context, the wife is supposed to have consented for such acts when she had been married to a man and hence the question of whether the consent was given by her or not is never raised as she is said to have consented for it at the time of her marriage. Marital rapes may result in long-term effects on the victim as eating and sleeping disorders, intense fear, depression, suicidal thoughts, post-traumatic stress, sexual dysfunction, trust issues, emotional pain, and trauma even after years of the assault (Thornhill ).
Although every society around the globe has recognised domestic violence as a serious and pervasive problem, marital rapes had never got the public attention it required despite its alarming frequency. According to NGO Dilaasa’s domestic violence data, 60% of married women report sexual violence, forced intercourse being its most common form. Despite its pervasive nature, common law formulation for the offence of rape had traditionally exempted the forced sexual intercourse by one’s legally wedded husband from its ambit. Absence of any legal provisions for making marital rapes a criminal offence gives the husband immunity from any charges against him for sexually assaulting or raping his own wife which could have been put otherwise if he would just not have happened to be her husband. The seventeenth-century jurist Sir Mathew Hale in his book “History to the Pleas of the Crown” writes “The husband cannot 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 in this kind unto her husband, which she cannot retract” (Hale ) and from this setting forth the concept of marital rape exemption into the common law system hence giving the immunity of ‘a man cannot be charged for rape against his wife’ this time old submission still exists in the penal statute of India, under the exception clause 2 of section 375 of the Indian Penal Code 1860, exempts the man of the sexual offence against his wife is not rape if the wife is not of more than fifteen years of age. This is in a way infringement of the right to personal life and right to live with human dignity as envisaged in article 21 of the Indian Constitution which the rapist violates of the victim. Also, exception 2 is in direct contravention to the sixth description of the same section which criminalizes any sexual activity with any female with or without her consent who is below eighteen years of age. Section 3 of the Indian Majority Act, 1875 prescribes age of majority to be of 18 years any domicile of India who is below 18 years of age is a child, and The Prohibition of Child Marriage Act 2006 prohibits the marriage of any child, ie anyone who is below the age of 18 cannot legally marry. From the discussed provisions, it can be deduced that though the raping of one’s wife who is below the age of fifteen is a crime but as one cannot legally get married to a female who is less than eighteen years, hence it is not legally possible in any case to serve justice to a legally married victim raped by her husband and criminalizes a utopian event which cannot exist in legal domain. The exception clause 2 gives the husband immunity and liberty to harm the modesty of his wife to whom he is legally married despite the fact that his acts might affect her dignity, and scar his better half for life. Also, taking away a woman’s right to bring about action against a wrongdoer, only by taking into consideration the fact that she is married to the wrongdoer is a direct contravention of her fundamental rights provided in the Constitution of India, as rape is a violation of Article 21 and Article 14 of the Constitution of India which provides the right to equality in two forms:
- Equality before law
- Equal protection of laws
Section 14 treats all persons in similar circumstances to similarly both in privileges conferred and liabilities imposed. The classification must not be arbitrary but must be rational(M. P. Jain), also that Right to equality cannot be arbitrarily denied to the equals in the absence of a valid classification, here as the rationale backing the classification is the marital status of the victim and the relationship between the victim and the wrongdoer, there can be no possible intelligible differentia, denying the right to bring about action just because one is married to the wrong-doer that too in the heinous crime of rape cannot be supported by any possible rationality and hence is in direct violation of it. Also, it is the Fundamental Duty prescribed by the Constitution of India to every citizen of India “to renounce practices derogatory to the dignity of women” provided the provisions in the penal code too are derogatory to the prescribed fundamental duties. The only safeguard available for any legally married woman is when the sexual act is done by her husband without her consent while the couple is living in judicial separation, though this safeguard does not take into consideration the sufferings of the married woman living with her husband.
The only action legally possible against such intercourse can be brought by considering the forced sexual intercourse as an act of domestic violence and the only possible remedy being divorce through the personal laws of the couple. In the year 2012, after the incident of Delhi Rape case a committee was formed chaired by retired Justice J.S. Verma, retired Justice Leila Seth, and Solicitor General Gopal Subramanian. The committee recommended that the relationship between the accused and the victim shall be irrelevant and of no defence in such a heinous crime of rape. The recommendation made in its report could not gather much ground and hence has not a part of the Criminal Amendment Act, 2013. One of the then cabinet minister in 2015 regretted the non-criminalization of marital rape by stating “ It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament..”. CEDAW committee in its fourth and fifth periodic report of India recommended the implementation of what the Justice Verma Committee had recommended in its report, ie., to criminalize the wrong of marital rape.
Indian society sees the wrong of Rape as one against the whole society whereas it has none to say against the wrong of marital rape, this is evident from the amount of work done on the topics. The National Crime Report Bureau publishes its report every year considering rape as one of the most heinous against women. Whereas marital rape is dealt with under the heading of domestic violence and no such statistics are available with the NCRB indicating the number of marital rapes reported in the country. The only available study is that done by the National Family Health Survey indicating that 8.5% of the females in the age group of 15 to 49 had experienced sexual violence or have been raped by their better-halves.
The 2006 NFHS study reported the sexual violence to be lowest against women in the 15-19 age group, and urban women reporting a 6% lifetime prevalence rate of sexual violence, while 10% of rural women reported experiencing sexual violence in their lifetime. Women with ten years of education experienced sharply less sexual violence, compared to women with less education. The total of some 83703 women took part and of 67426 Hindu women who took part in it 22453, which is equal to 33.3% of respondents said yes to being physically abused at their home, similar is the case of Buddhist women where 40% women said yes to being physical.
The feminist movement of the 19th century was a campaign for reform on the issues relating to women subjugation such as women suffrage sexual harassment, maternal leave, sexual violence, domestic violence, reproductive rights, and demanded women’s right over their own body which in future inspired many countries to pass legislatures for women’s rights, many countries have banned marital rape such as- Albania, Chile, Barbados, Fiji, Germany, France, Greece are a few names. The United Nations Secretary-General in the year 2016 found that “Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Four States criminalize marital rape only when the spouses are judicially separated.”(General). Many countries which have criminalized the act of marital rape, include the neighbouring countries of India such as Nepal, Pakistan, Bhutan, and Sri Lanka being a few. The United States of America criminalised marital rape in the 1970s. In the landmark judgment of R. v. R, the House of Lords held that under English Criminal Law ‘it is possible for a husband to rape his wife’ hence dissenting from the viewpoint of Ex-Jurist Sir Matthew Hale.
The Convention on the elimination of all forms of discrimination against women (CEDAW), it had in the year 1979 brought at the United Nations General Assembly, an international treaty which addressed discrimination against women in all domains and advocated the abolition of any kind of discrimination against women. The treaty contains certain provisions which have the potential to bring an end to the discrimination which the women face, as of the year 2015, there are 186 countries which have ratified it. Article 1 of the CEDAW treaty prohibits any discrimination on the grounds of the marital status of the woman. Article 2 read with General Recommendation number 12 (1989) discusses violence against women shall be dealt with by the state as protection of women is the duty of the state. Though India is not a signee to the treaty, it shall respect the foreign laws and treaties as had been laid down in its constitution.
It can be seen that marital rape is not a myth but a poignant truth. Keeping a blind eye towards such wrong is a denial of fundamental rights to half of the Indian population, as time has changed so has the nature of marriages had changed from making wives subservient to their husbands into a contract of equals. The victims of marital rapes undergo more mental and physical suffering as compared to the victims of rapes by a stranger as the bond of marriage brings two individuals into an intimate relationship and hence are in a relationship of trust and care, the act of getting one’s modesty violated by someone so trusted and inability to bring about any legal action further elevates the suffering of the victim. In most of the cases of cases, the victim is forced to cohabitate with the rapist. Also, the act of marital rape may occur several times and might lead to health complications to the victim. The constitution of India has blessed every citizen/resident with certain rights which are fundamental to all and cannot be taken away in any situation or in any circumstance, one of such are the rights to life and right to equality. The denial to bring action against the wrongdoer just by taking into consideration the relationship between the victim and the wrongdoer is a violation of both. Also, countries around the world had already criminalized such act many of the countries criminalizing the act of marital rape are the neighbouring countries of India. Hence, India too needs to develop certain laws criminalizing the act of marital rape and to ensure security and dignity of the half population of our country. The exception (2) of Section 375 IPC hence in no way is in confirmation to the law of natural justice as it scraps away even the right to be heard before the court and hence the researcher suggests it to be brought down from the statute.
- Gangil, Deepali; Pillai, Lavannai, 2016, “Marital Rape”, Imperial Journal of Interdisciplinary Research, volume 2.
- Gunjan Jain, “Significance of Marriage as Social Institution in Indian English Writings”, unpublished manuscript, page no. 140-156
- Gelles, Richard, 1977, “Power, Sex, and Violence: The Case of Marital Rape”, The Family Coordinator, volume 26.
- Vandana, 2017, “Marital Rape – exemption under Indian Penal Code: quest for recognition and liability”, ILI Law Review, volume 2.
Avinash Kumar is a 3rd Law studying at National University of Study and Research In Law, Ranchi.