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Marital Rape in India

Categories: Social Legislations
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Published on: September 20, 2010

Violence against women within the family has become a contemporary issue. With the mounting concerns of researchers and women activists, a plethora of literature is coming out on the nature, extent and reminiscent strategies of violence within public as well as private domain. The physical and sexual abuse of women in public domain and children has become widely recognized. Laws have been changed, shelters and treatment programs have been launched, and documentaries/movies have been made on the issue, yet sexual relations within married couples are less discussed and scantily researched issues in India. There is a curious silence surrounding sexual violence towards wives as wife, family and children are considered as private issues and moreover notion of family rest on the peace and security of women. Though widespread, sexual violence or marital rape is still regarded as a tabooed issue.

Marriage has always been known as a sacred institution but, wonder how much of it exists today. Marriage is no more a ‘sacrosanct institution’, for, there are issues within it that have sort of shaken the ground basis of the entire union of a man and a woman and this idea of the “sacrosanct” institution of marriage is dished out by the mainstream Indian cinema is a myth and is contrary to women’s perceptions of reality.

Marriage now, is just not limited to being with the man you love, respect and want to spend your entire life with but, on the contrary, it can also come with its own set of problems, including the biggest- that of ‘Marital Rape’ which has become a stark reality of today’s world or perhaps, women have only started speaking about it now.

Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. Social practices and legal codes in India mutually enforce the denial of women’s sexual agency and bodily integrity, which lie at the heart of women’s human rights. Rape is rape. Be it stranger rape, date rape or marital rape. The law does not treat marital rape as a crime. Even if it does, the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must be forced to accept rape within marriage as a crime. Further, women themselves must break free of societal shackles and fight for justice. They must refuse to comply with the standards applied to them as the weaker sex.

2.0 Marital Rape

The term “Marital Rape” is contentious and creates confusion for rape is widely regarded as a sexual transgression, and marriage is perceived as socially sanctioned sex. Generally women themselves do not recognize sexual assaults by a husband as rape (compared with sexual assaults by strangers or acquaintances) and so are less likely to report it. Further there are many stereotypes about women and sex such as women enjoy forced sex, women say “no” when they really mean “yes,” it’s a wife’s duty to have sex which continue to be reinforced in Indian culture through both mainstream and pornographic media misleading men into believing that they should ignore a woman’s protests, but also mislead women into believing that they themselves must have “sent the wrong signals,” blaming themselves for 1unwanted sexual encounters, or believing that they are “bad wives” for not enjoying sex against their will. Hence “rape in marriage” is still a hidden phenomenon and considered as non-issue in India.

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.

Having sex with a person at one time does not “imply” consent to any future sexual acts. According to rape statutes, consent must be a cooperative act of free will. Sexual acts include but are not limited to penile-vaginal intercourse, the insertion of genitals into the mouth or anus, or the insertion of objects into the vagina or anus. Finkelhor and Yllo (1985) found it useful to distinguish between different forms of coercion which occurs in husband-wife relationship and facilitates marital rape:-

Social coercion is the pressure women feel as a result of cultural expectations or social conventions.  Social coercion regarding marital sex is institutionalized in our culture and internalized in individuals.  While such coercion can be degrading and detrimental, especially when accompanied by other forms of male entitlement and control, it does not fall within a useful definition of rape.

Interpersonal coercion occurs when a woman has sex with her husband in the face of threats that are not violent in nature.  Husbands who threaten to withhold money or have an affair or who become nasty toward the children are guilty of interpersonal coercion.  The coercive nature of such threats is especially salient in a marriage where a woman’s dependency and powerlessness undercut her bargaining position.  Nevertheless, when such threats are not associated with any physical coercion, the sex that follows cannot regarded as rape.

Threatened or actual physical coercion, in contrast, is at the core of rape.  Physical threats can range from explicit threats to kill a woman if she doesn’t comply, with the implied threat that she will get hurt if she doesn’t cooperate.  The implied threats are especially potent in relationships where a husband has battered his partner in the past.  The actual use of physical force has a wide range from holding a woman down with greater size and strength to inflicting extensive injuries.

Finkelhor and Yllo (1985) further suggest limiting the definition of marital rape to the use or threatened use of physical force without the consent of the woman though they consider other two forms of coercion important in politicizing the issue.

2.1 Trauma of Marital Rape

Despite the unwillingness to recognise marital rape as a crime, the fact remains that marital rape is prevalent throughout society. Women’s bodies are outraged, regardless of their educational qualifications, class or status. Women themselves don’t make a noise about it or talk about their experiences. This is because cultures worldwide discourage their women from openly discussing sexual matters, let alone within marriage. Most women don’t even think of rape by their husbands as marital rape.

Various subliminal messages across the media and through society encourage young boys to believe in the sexual availability of women. Men begin to believe that decision-making is their sole prerogative that their wives do not have any rights in most matters that their wives are subject to them in every respect. Even educated persons, who would otherwise treat women with the utmost respect, would think nothing of having sex with their wives, against their wives’ wishes.

The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.

Thus, Marital rape is a unique problem that encompasses both physical violence and the psychological trauma of being raped by someone who has taken marriage vows to love and honor his or her spouse. Thus a comprehensive framework for marital rape must include aspects of the emotional and physical cruelty, as well as the exposure of family privacy, that often accompanies domestic violence.

2.2 Physical and psychological effects of marital rape

Despite the historical myth that rape by one’s partner is a relatively insignificant event causing little trauma, research indicates that marital rape often has severe and long-lasting consequences for women. The physical effects of marital rape may include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Women who have been battered and raped by their husbands may suffer other physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence. Specific gynaecological consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV.

Women who are raped by their partners are likely to suffer severe psychological consequences as well. Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, problems in establishing trusting relationships, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and emotional pain for years after the violence.

2.3 Types of Marital Rape

It appears that Sexual violence is most likely to occur along with all other forms of violence like physical violence, emotional violence and economic violence. This has led some researchers to argue that marital rape is “just one extension of domestic violence” (Johnson & Sigler, 1997, p.22). Viewing rape in marriage as a form of domestic violence is logical given that researchers have found that the majority of women who are raped by their partners are also battered. In fact, Violence can not be compartmentalized. It is a continuum. Finkelhor & Yllo (1985) have tried to categorize the sexual assault into three major following forms:-

Battering rape: In “battering rapes”, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

Force-only rape: In what is called “force-only” rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive” rape; these assaults involve torture and/or “perverse” sexual acts and are often physically violent.

3.0 Justifications

The acceptance and development of marital rape exemptions are rooted in five theories: the theory of “implied consent,” the “unity”, “women as marital property” theories, the “narrow constructionist” theory, “marital privacy” and “marital reconstruction”.

The theory of implied consent originated with a seventeenth century statement by Sir Matthew Hale that a “husband cannot be guilty of a 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.” A woman, upon entering marriage, impliedly and irrevocably consents to sex on demand with her husband, at any time and under any circumstances.

Blackstone best articulated the unity theory when he wrote that “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into [her] husband.” But now the Courts have changed its view with Trammel v. United States, which asserts that “nowhere in . . . modern society . . . is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.”

In the narrow constructionist theory, the term “unlawful,” as it is used in rape statutes, means “not authorized by law.” Because marriage sanctions, or authorizes, sexual relations between husband and wife, all carnal knowledge between husband and wife is lawful, and there are no sexual relations within a marriage that are unauthorized or unlawful. Thus, no sexual relations within a marriage fall within this definition of rape.

Marital privacy is one of the foremost modern day justifications for marital rape exemptions. Proponents of the marital privacy rationale suggest that the right to privacy within one’s marriage is so fundamental that the public, and hence the legal system, should be precluded from defining or judging the activities therein. The New York court of appeals in People v. Liberta rejected the marital privacy argument and stated clearly that the right recognized in Griswold v. Connecticut applies only to consensual acts, not to violent sexual assaults.

Reconciliation theorists maintain that this resolution process, as opposed to one which allows “access to the criminal justice system for every type of marital dispute,” fosters greater mutual respect between the parties and eases their ultimate reconciliation. Inherent in this theory is the idea that if a victim of spousal rape is capable of bringing, and in fact does bring, criminal charges against her spouse, then the law will have fostered marital discord and prevented reconciliation.

There is a perception that rape by a known individual, particularly an individual with whom the victim has had past voluntary sexual intercourse, is less severe than rape by an unknown individual. This perception supports both broad marital rape exemptions and the treatment of marital rape as a lesser sexual offense.

Contrary to this “less harmful than” theory, victims of spousal rape suffer greater harm, both emotionally and physically, than victims of stranger rape.

3.1 Arguments against criminalization of Marital Rape

Besides the above mentioned theories which justify marital rape there are also some frivolous arguments which justify this heinous offence. They are as followed:-

The following are some of the common arguments given against the idea and proposal of criminalizing marital rape as an offence:

  • — There is no need to give legislative attention to marital rape, as it is quite uncommon.
  • — Due to the near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.
  • — Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape.
  • — There is an implied consent to have sexual intercourse when a woman marries a man.
  • — Marital rape laws would destroy many marriages by preventing any possible reconciliation.

3.2 Rebuttal of Arguments against criminalization of Marital Rape

A perusal of these arguments would make it quite evident that these are mere fanciful, lame excuses of a male-dominated society that lack any sort of legal substance or moral force. A rebuttal of the abovementioned arguments is not very difficult.

Marital rape is a common but under-reported crime. A study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once. They frequently do not report these rapes because the law does not support them.

As to the second argument, that marital rapes are difficult to prove, it may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapist husbands. The mere fact that marital rape would be very difficult to prove is no reason for not recognizing it as a crime.

As regards the third argument of women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult. Because of the associated stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of sheer spite. Besides, the criminal justice system provides inherent safeguards such as the requirement of proof beyond any reasonable doubt. This is no justification to say that the victims should be denied protection simply because someone might be at risk of a fabricated case.

As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual intercourse with her husband after marriage, but the expression of love through sexual intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination can it be said that a person consents to harm or violence by marriage, and neither does the law permit any person to give such consent.

Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold together marriages may be one of the objectives of matrimonial laws. But it cannot override the fundamental objective of law in general and that of criminal law in particular, which is to protect and preserve the bodily integrity of a human being. Thus, withholding justice and denying equal protection for preserving marriages, at best, can be an improper goal of law. The law should not encourage forced cohabitation and should not protect a raping husband.

4.0 Legal Position on Marital Rape

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

This established the notion that once married, a women does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “licence to rape” their wives.

Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed.

4.1 Position in India

There is no slightest of doubt that we live in patriarchal society. This society vehemently denies social and economic autonomy of women and its appropriation of women as male sexual property are only too willingly protected by the state and its laws.

Though we have advanced in every possible field, marital rape is not considered as an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by  man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount top excessive interference wit the marital relationship.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice  or equity. Even international law now says that rape may be accepted a s the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

4.1.1 42nd Law Commission Report

Though the Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope. But, the Joint Committee that reviewed the proposal dismissed the recommendation. The Committee argued that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package.

Many women’s organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes pertaining to women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission’s proposed definition of “sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as “it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition.

4.1.2 172nd Law Commission report

Even the 172nd Law Commission report which was passed in March 2000 had made the following recommendations for substantial change in the law with regard to rape.

  1. ‘Rape’ should be replaced by the term ‘sexual assault’.
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
  3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
  4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
  5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
  6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
  7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
  8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

Notwithstanding the 172nd Report of the Law Commission of India submitted over nine years ago to the Government of India urging that Parliament should replace the present definition of rape under Section 376 IPC with a broader definition of sexual assault, which is both age and gender neutral, nothing has been done till date.

4.1.3 Recent Proposed reforms

This year as the world celebrated International Women’s Day in March, the government had proposed bill to protect women from all possible tormentors, including their husbands, by introducing “marital rape” as a separate provision under the proposed new law against rape and sexual assault.

There is no law at present to identify marital rape and penalise husbands for forced sex with their wives but the Domestic Violence Act that covers sexual abuse as part of violence on women. However, soon, husbands may find themselves behind bars if their wives lodge a complaint. The proposed penalty for marital rape will be three years’ imprisonment with fine.

The department of legal affairs has drafted the Criminal Law (Amendment) Bill based on recommendations of the women and child development ministry (WCD) and the National Commission for Women (NCW) to amend certain sections of the Indian Penal Code (IPC), the Code of Criminal procedure (CrPC), 1973; and the Indian Evidence Act, 1872, to recognise new categories of sexual assault besides redefining rape by including sexual assault in any form in its definition.

“The definition of rape needs to be expanded to take into account forms of sexual assaults not covered in the existing definition under the IPC… the proposed bill recognises marital rape as an offence and also incorporates a specific provision on sexual assault by a relative or a person in position of trust or authority or in a position of social, economic or political dominance,” said justice Geeta Mittal of Delhi high court.

While women groups say that marital rape is a worldwide phenomenon and almost 50% of women face forced sex by their husbands, men’s organisations said the changes in law would essentially damage the fabric of a family system.

the proposed new law, besides terming sexual relationship of a man with a wife under the age of 18 as rape, also specifies under section 376 (1) that if a man commits sexual assault even on his wife, who is above 18 years of age, shall be punished with imprisonment which may extend to three years and shall be liable for a fine.

5.0 Lacunae in Indian laws

Social beliefs are only reinforced by the lacunae in the law. As of now, Indian law contains no provisions for helping abused wives and penalising guilty husbands. Women have no legal recourse. The whole legal system relating to rape is in a mess, replete with paradoxes. What is worse, women are not even aware that they don’t have to meekly give in to their husband’s demands.

The major legal lacunae that come in the way of empowering women against marital rape are:

  • — The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and “right to live with human dignity is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
  • — Article 14 of the Constitution guarantees the fundamental right that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.
  • — Though protection of the dignity of women is a fundamental duty under the Constitution, casting a duty upon every citizen “to renounce practices derogatory to the dignity of a woman”; it seems that domestic violence and marital rape do not come under the definition of dignity.
  • — The “United Nations Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 entitled “The elimination of violence against women” recommended that marital rape should be criminalized.
  • — A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse. This implies that having sex anytime, anywhere and of any sort is an implied term of the contract of marriage, and the wife could not breach that term of the contract.
  • — The law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non-consensual sexual intercourse with a wife who is just 15 years of age.
  • — The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the man involved and is below 16, even if she consents. But if she is a wife, not below 15 and does not consent, it is not rape.
  • — Another paradox is that according to the Indian Penal Code, 1860, it is rape if there is a non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both, which is quite less in comparison to the punishment provided for rape outside the marriage.
  • — Though the advocates of women’s rights secured a clause in 1983 under which it is unlawful for a man to have sexual intercourse with his separated wife pending divorce, the courts are reluctant to sentence husbands in spite of the law.
  • — Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for n offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive n mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

6.0 Suggestions for reform

In light of the above discussion following suggestions are made:

  • —The most serious problem in criminalizing marital rape would be that it presupposes that the family structure is disturbed. India is said to have a social order characterised by a strong familial ties and a low divorce rate. Hence, criminalisation of family problems would only result in the complete breakdown of a home. Indian culture is vastly different from Western society where marriage is a contractual and temporary phenomenon. Considering the sensitive- nature of the problem these types of offences could be dealt with by the family courts.
  • — Marital rape should be recognized by Parliament as an offence under the Indian Penal Code.
  • — The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
  • — The fact that the parties are married should not make the sentence lighter.
  • — It should not be a defence to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
  • — The wife should have an option of getting a decree of divorce if the charge of marital rape is proved against her husband. Though a case of marital rape may fall under “cruelty” or “rape” as a ground of divorce, it is advisable to have the legal position clarified.
  • — Demand for divorce may be an option for the wife, but if the wife does not want to resort to divorce and wants to continue with the marriage then the marriage should be allowed to continue.
  • — Corresponding changes in the matrimonial laws should be made.

Conclusion

Women continue to cry in their hearts and pray for a better married life where they have a say, where they both are happy. But the sad part is even today marriage is not about ‘them’ and so a woman is denied rights, is caged, can scream but shouldn’t be heard, can cry but shouldn’t be seen, is raped and shouldn’t be a victim.

Ironical as it is, but something such as marital rape should be acknowledged as no less a crime. Just because a woman leaves her own house to live in with her husband doesn’t mean she leaves behind her dignity, her right to humanity and her emotions.

It should be accepted by one and all that institution of marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart form judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

If only struggle for gender justice is developed, the movement will change public consciousness, sensitize individuals to the issues that don’t just confront woman but society at large.


Artee Aggrawal, “ Marital Rape”: A Non Issue in India

PRIYANKA RATH is a 5th year law student at Symbiosis Law School, Pune. “Marital Rape and the Indian legal scenario”

Artee Aggrawal, “ Marital Rape”: A Non Issue in India

PRIYANKA RATH is a 5th year law student at Symbiosis Law School, Pune. “Marital Rape and the Indian legal scenario”

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Id.

SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 16-30 (1975).

Michael G. Hilf, Marital Privacy and Spousal Rape, 16 NEW ENG. L. REV. 31, 33 (1980).

Linda Jackson, MARITAL RAPE: A HIGHER STANDARD IS IN ORDER, William & Mary Journal of Women and the Law, 1994, 1 Wm. & Mary J. Women & L. 183.

Subsequent research finds that more women are raped by their husbands each year than by strangers, acquaintances, or other persons. Over a third of the women in our country’s battered women’s shelters report being sexually assaulted by their husbands.

1 Hale, History of the Pleas of the Crown 629 (1778).

PRIYANKA RATH is a 5th year law student at Symbiosis Law School, Pune. “Marital Rape and the Indian legal scenario”

Law Commission of India, 42nd Report, 1977, Indian Penal Code, para 16.115, p. 277.

Vineeta Pandey / DNA, “Husbands can’t get away with marital rape: Government”, March 8 2010.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608

Article 51-A(e) of the Constitution of India

Section 375(6) of the Indian Penal Code

Section 376 of the Indian Penal Code.

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