This article was written by Musaib Khan, a student of KIIT School of Law.
MARRIAGE IN INDIAN SOCIETY
Indian society is patriarchal and dynamic towards men who are considered privileged to enjoy much of a better status than women. Role of a woman is still regarded as submissive, docile, homemaker and many other derogatory positions one can only imagine.They accept and endure abusive behaviour by their husbands which they are subjected at a daily basis. Divorce is an option which can be availed by those women who are financially sound, independent, have a family support and a society which is sane enough to realise the purpose of such action. As quoted by a famous British philosopher Bertrand Russell “Marriage for a woman is the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater than prostitution.”1
Marital rape is an unwanted intercourse of man with his wife by coercion or physical violence by extreme use of force. It is the non-consensual act of violent perversion of physically and sexual abusing of a woman. This heinous act is beautifully hidden behind the iron curtain of marriage. It has severe and long lasting consequence on women, the physical effects can be injury to private organs, laceration, soreness, bruising, torn muscles,fatigue and vomiting.They may suffer injuries like broken bones, black eye, bloody nose, while they are battered and raped. Gynaecological consequences includes miscarriages, still birth, bladder infections, infertility and much higher risk of STD’s like HIV.2 Psychological consequences include short term effects of anxiety, shock, intense fear, depression, suicidal ideation and post-traumatic stress. Long term effects includes disorder eating, sleep problems, depression, problems in establishing trustworthy relationships and increased negative feelings about one.
Few survivors have complained of flashbacks, sexual dysfunction and emotional pain for years.3
TYPES OF MARITAL RAPE4
Battering rape: Here the woman is subjected to both physical and sexual violence in various ways which includes beating the wife while having sexual intercourse and coercing to have sex against her will. Majority of victims are under this category.
Force-only rape: The husbands use only the required force to coerce their wives. The assaults happen typically after the refusal of the woman.
Obsessive rape: This involves torture and/or perverse sexual acts and are physically violent in nature.
LEGAL POSITION OF MARITAL RAPE IN INDIA
The marital rape in India is de facto and not de jure. The Indian judiciary has a two sided approach towards this particular issue. Firstly, in the case of Bodhisattwa Gautam v. SubhraChakraborty.5 The Supreme Court laid down that one of the basic fundamental right i.e. Right to life conferred by Article 21 of the Indian Constitution is being violated and also said that rape is a crime which violates ‘basic humanitarian rights’. Still, marital rape stands unrecognized in Indian legislation. The current status of legislation has advanced but it is confined just to ‘physical abuse’ but not ‘sexual abuse’. Therefore women are denied protection by the state since marital rape is expressly recognised as not an offence under Section 375 of the Indian Penal code. However subjected to certain provisos that the wife of the man not under 15 years of age which would amount to rape in any cases.6 Secondly, for those who are separated from their husbands. 7 The punishment of marital rape is discriminating from the rape of an unmarried girl under the age of 12 which gives rigorous punishment for a term of 10 years or more whereas the rape of a married girl below 15 years of age carries a sentence of lesser harshness as compared to the former, if the accused is the husband of the victim. This principle in Section 375 of the said code has been obtained from Sir Matthew Hale’s judgement in 17th Century England which stated that “Husband cannot be held guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself unto the husband which she cannot retract.” 8 The Law Commission has made several recommendations in different reports on criminal liability of marital rape. The joint committee on the Indian Penal code (Amendment) Bill, 1972 in its 42nd reportincluded sexual intercourse by a man with his minor wife as an offence which was reviewed and nullified. The Committee said “when a man marries a woman, sex is also a part of the package.” The Commission has retracted its view in the 172nd report where certain points have been a precursor of considering marital rapes as an offence which are:
In SakshiUnion of India9, sexual assault on any part of the body must be construed as 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.
In case a court receives a complaint from an aggrieved wife, the court may call upon the respondent i.e. the husband to hear him. There is no compulsion over the husband to hire a lawyer. The court, if possible refers the case to a mediator for resolution. In cases where the case is unable to be resolved through mediation and the complaint is found valid the court can pass a protection order and ask the respondent to regulate his conduct, which is legally binding. On violation of such direction the wife can go back to the court for relief which can lead the respondent to a short imprisonment. However, this process keeps lasting for a long time than expected. Justice Verma committee on Amendments to Criminal law10looked into possible amendments of the Criminal law to provide for quicker trail and enhanced punishment for criminals committing sexual assault of extreme nature against women.
JUSTICE VERMA COMMITTEE REPORT
The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Sir Matthew Hale declared: ‘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 herself up in this kind unto her husband which she cannot retract’.11
In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared, ‘Marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband’.12 This view was supported by the judgment of the European Commission of Human Rights in C.R. v UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. This change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom.13 This was given statutory recognition in the Criminal Justice and Public Order Act 1994.14
The committee found that the same is true in Canada, South Africa and Australia. In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983.15 South Africa criminalized marital rape in 1993, reversing the common law principle that a husband could not be found guilty of raping his wife. Section 5 of the Prevention of Family Violence Act 1993 provides: ‘Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.
These jurisdictions have also gone further and recognized that consent should not be implied by the relationship between the accused and the complainant in any event. In the Canadian 2011 Supreme Court decision in R v. J.A., Chief Justice McLachlin emphasized that the relationship between the accused and the complainant ‘does not change the nature of the inquiry into whether the complaint consented’ to the sexual activity.16 The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant.17 Changes in the law need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship. This was underlined in Vertido v. The Philippines, a recent Communication under the Optional Protocol of the Convention on the Elimination of Discrimination Against Women (CEDAW)18, where the CEDAW Committee emphasized the importance of appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender-sensitive manner.19 The committee relied upon Prof. Sandra Fredman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”. The committee therefore recommended that:20
The exception for marital rape be removed.
The law ought to specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation
The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity
The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape
REASONS FOR NON–CRIMINALISATION OF MARITAL RAPES IN INDIA
The core reason for such a practice is the idea of marriage in Indian legal system. Such reasons being:
(a). Implied Consent: The institution of marriage which is required to be sacramental is more of considered as a contract where a woman’s consent is irrevocable . It becomes a right of husband to have sexual intercourse. The comments of home minister of a state had rendered the view “Marriage is perceived as a sacred union, marital rape cannot be brought within a purview of rape law smack of sexism.” The fact that Hindu marriages have ceased to be sacramental for more than half a century ago, and Muslim marriages have always been contractual is overlooked by these comments.21
(b). Women as a property: The Marital rape has plundered to being an exemption for a husband, as a husband is not considered anymore capable of raping his wife since he could not take what he already owns. Common Law even considers ‘ Rape as a violation of man’s property interest’. On facing the act of marital rape, a 23 year old woman on reporting the matter to her parents was told that her husband has complete right over her and she should obey whatever he asked for.22
(c). Marital Unity : Nonexistence of woman as soon as married and the wife’s identity merged with the existence of the husband is said to be the doctrine of marital unity which has been a major reason for such male dominated society of India to consider marital rape as an offence.
(d). Public and private division: the court interpret much of the marital offences a s a private matter and not of anything of public domain importance as a result of which it gets confined to bedroom and not considered as heinous offence as rape . This leads to compulsory sexual relation which becomes advantageous for male perpetrators.
NEED FOR CRIMINALISATION
The whole legal system relating to rape is supplemented with paradoxes to prove marital rape is a difficult procedure in court of law as there is expressed provision regarding such situations and the petitions filed have met with failure.The loop holes of non-criminalisation of marital rape being that the scope of Article 21 of the Indian Constitution being extended and the right of living with human dignity coming under its ambit. Marital rape violates the right to live with dignity, so the exception to section 375 is ultra vies of Article 21. Article 14 of the Indian constitution guarantees that the state shall not deny, to any person equality before the law or the equal protection of laws within the territory of India, it protects a person from state discrimination The exception to Section 375 is not a reasonable classification as per Article 14 as discussed earlier. Earlier, the rape victims were free from court rule and the burden of proof was on the woman to show that she didn’t consent but in
Karnal Singh v. State of M.P23, it was held that women should not be construed as an accomplice of the crime but rather as a victim. At present the proof lies on the defendant that the women consented .The Indian constitution even assigns it as a fundamental duty under Article 51(A) (e)“to renounce practicesderogatory to the dignity of the women”. It appears that the lawmakers have not made it quintessential to legislate for marital rapes. In 2011 a study released by International Centre for Research on Woman (ICRW) stated, “One in every five Indian men surveyed admitted to forcing their wives into sex. The legal experts believed the government is reluctant to criminalise marital rape because it would require them to tweak laws based on religious practices.”24
The United Nations Conventions on Elimination of All Forms of Discrimination Against Women (CEDAW) of which India is a signatory has even rendered the view that the sort of practices of allowing marital rapes amounts to discrimination against the women violating the principles of equality of rights and respect towards the dignity of a human. The Commission had even passed a resolution which was recommended for criminalizing marital rapes.25The paradox operating in the Indian law which is ironical in its regulation that a girl below 18 years can’t marry but the non consensual sexual intercourse with a wife of 15 years of age is legalised.The second paradox operating in the Indian penal code is that a girl below 16 years of age with her consensus-ad-idem has sexual intercourse with a man who is not her husband amounts to rape26, but supposing that she is the wife and above the age of 15 and doesn’t consents for intercourse is not under the purview of rape.
COMPARATIVE STUDY OF MARITAL RAPE LAWS IN OTHER
CANADA: Rape was first statutorily defined in Canada in 1892. 27 Section 266 of the Criminal code, 1892 read: Rape is that of a man having carnal knowledge of a women who is not his wife without her consent, which has been extorted by threats or fear of bodily harm…”28 . The modern version of the Criminal Code also specifically incorporates spousal immunity,” A male person commits a rape when he has sexual intercourse with a female
person who is not his wife, without her consent….” .29 By definition man in Canada cannot rape his wife regardless of whether they are cohabiting or are separated. The words in the statute are unambiguous. Abolition of the exemption or reduction of its scope can only be achieved through statutory amendment. In the Canadian 2011 Supreme Court decision in R v.J.A., Chief Justice McLachlin emphasized that the relationship between the accused and the complainant ‘does not change the nature of the inquiry into whether the complainant consented’ to sexual activity.30 The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant.31
SOUTH AFRICA: In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act (‘Sexual Offences Act’) provides, at s. 56 (1), that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.
U.S.A.: Spousal rape in America at present stands illicit in all 50 states, prior to 1990 the rationale behind non criminalisation of marital rape was existence of British American colonies who were promulgated with 17th century English common law and manifestation of doctrines of conservative Christianity, one has a “conjugal duty” to have sexual relations with one’s spouse and states that “The wife does not have authority over her own body, but the husband does and likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another.32 Criminalisation of marital rape in U.S.A was indeed intricate, convoluted and long drawn it extended from mid 1970s to 1993.The exemption of criminal liability in marital rape can be sorted from “A male who has sexual intercourse with a female not his wife is guilty of rape. 33 .In 1980s through a plethora of judicial pronouncement the exemption of marital rape was declared unconstitutional it was held by Justice Sol Wachtler in New York Court of Appeals that “a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman”.34 In 1993 almost all state had withdrawn exoneration of marital rape albeit there prevailed significant and poignant difference in treatment of marital and non-marital rape. Subsequent lobby for amendment by feminist and other organisation and with the advent of 21st century most state reformed their legislation and evolved there laws states like Tennessee repealed there previous acts. States like Idaho has gender specific laws, Connecticut not only has laws in re to forced sex on spouse but also in re to co-inhabitants.
UNITED KINGDOM: Lord Hale’s view that the marriage contract presumed irrevocable consent to sexual relations was widely accepted. Consequently, very few cases dealt with the issue of marital rape. English Courts discuss the marital rape in the 1888 case of R vClarence.35 The accused was charged with assault causing bodily harm after transmitting gonorrhoea to his wife, conviction was quashed on appeal but out of the six judges commenting only Mr Justice Stephen and Barren Pollock clearly supported Lord Hale’s view that rape within marriage was a legal impossibility.36 The Barren Pollock referring to sexual intercourse between spouses wrote; “It is done in pursuance of the marital contract and of the status which was created by marriage, and the wife and to the connection itself is in a different position from any other women, for she has no right or power to refuse her consent.”37 In contrast, Justice Hawking’s commented that a women “Conferred upon her husband an irrevocable privilege to have sexual intercourse with her”. 38 However, in his view, the privilege applied only during the time in which the ordinary relations of the marriage existed between them, similarly. Two of the Judges were critical of Lord Hale’s position. Mr Justice Field commented: “The authority of Hale, C.J., on such a matter is undoubtedly as high as any can be, but no other authority decided by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully intercourse, and in which the husband impose it by violence, he might be held guilty of the crime.”39 In R. V Clarke,40 the first English case in which the issue of marital affair was dealt with directly, the Courts held that the wife’s consent was revoked by the separation order which she has obtained and that therefore her husband could be found guilty of rape. Mr Justice Byrne followed the judgement of Mr Hawking’s in R v. Clarence41stating that consent continued only as long as the “Ordinary relations created by the marriage contract subsisted between them”.42 The same line of reasoning was followed in subsequent cases. In R v Miller43 The court held that the petition for divorce did not revoke the wife’s consent, In R v Obrien44 and R v Steele45 the Court held that a wife who has separated from her husband had effectively revoked her consent.
These five court judgments diminished the latitude of the common law principle. Matrimonial consent which was irrevocable in England became revocable under certain limited circumstances. As one commentator has noted, however, “the courts have never acknowledged as valid any withdrawal of the wife’s consent to intercourse other than an order by the court or possibly an agreement by the spouses to separate.46 The country of India needs to adapt itself in legalising marital rape as an offence as it is based on the common law principles which changes with the changing society securing the dynamic nature without any palpitation. The European Commission on Human Rights in C.R v. U.K47 concluded that a rapist remains rapist irrespective of his relation with the victim. This particular change in Common Law was essential for the changing needs of human rights conditions and the respect for such rights of an individual. This judgement even took the reorganization in the act of the legislature as Criminal Justice and Public order Act, 1994. In England and Wales the status of married women had changed beyond all recognition post the proposition of Hales. Lord Keith, in one of the verdict, stated that ‘‘marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband”.48
CONCLUSION AND SUGGESTION
Marital rape is built on the foundation of unjustifiable conventional assumption that once married the husband essentially owns his wife proprietarily. Manu enunciated that a wife, a son and slave is not a property, whatever they earn is a property to them whom they belong.49Women has primitively been subjected to subjugation and atrocities and it is the utmost need of the hour to armament basic fundamentalist of being a human through exoneration of the exemption of marital rape bringing it under the purview of criminal culpability. The UN population fund States that more than 2/3rd of married women in India aged between 15-49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husband’s family. 50 Both Justice Verma committee and UN committee on Elimination of Discrimination against women strongly recommended the Indian Legislature to criminalise marital rape. Decriminalised marital rape is not only derogative to fundamental right to life51 which also encompasses right to live with dignity52 but also is inconsistence with right to equality as it leads to unreasonable and arbitrary classification of married women. 53 Marital rape is predicament of a debacle for the dignity of the women. Although the criminalisation of marital rape is not an easy way to get through in a diverse country like India where there are different personal and religious laws might come under conflict if the penal code is amended. The alteration of the code should amount to a balance between competing interests of the society as it could be clearly achieved by implication of “social engineering” theory by Roscoe Pound. He stated in his thesis various private and social interests which covered the individual’s honour and reputation, individual interests in domestic relations such as marriage and relation between a husband and a wife. He also talked about the social interest deserving legal protection such as interest in preserving social interest such as marriage and promotion of human personality.54 It is to be noted that law has a crucial contribution in adjusting conflict of interest ,both social interest and individual interest co-exist together .A much more than amendment is required, the sensitizing of police officers and the judiciary. Moreover this aim can only be achieved by creating awareness in the society only after they challenged the current prevailing myth. According to 2001 census the percentage of literacy gap between the
sexes at the national level is 21.6%. 55 Hence, it could be conclusively inferred that the feminine section is more economically dependent on their husband. This could also be substantiated through the corroboration of breadwinner-homeworker protocol. Apart from being subjected to emotional trauma and physiological impacts spousal rape also have grave sociological after effects it leads to degradation of reputation , honour and result in objectification. Consent while having sexual intercourse for pleasure should also be taken into consideration as it is being taken when it is done for the purpose of having a family. The major lacuna which facilitates this inhumane behaviour of the husbands is lack of education and the ethno-cultural barriers which shapes more of an uneducated skilled man rather than a man with certain intellectual ability and prudence. Such an image of the society calls for introduction of sex education at the primary level itself which can regulate the human psychology and prepare manhood with a notion of respect among individuals towards human rights and dignity. There should be an option for the wives to opt for a decree of divorce against their husbands if the act of marital rape has been properly established in the court there an introduction of a provision in a penal court which would classify the act marital rape separately as an offence so that the victim could avail for divorce. This means that the legal position must be clear and vivid.
In order to avoid the flooding of cases in court there should be a proper procedure laid down which includes mediation which would be a step prior to the actual beginning of procedure of court. The mediator shall study the case in utmost depth so that the court could have a better beneficial interpretation of the case because the onus on the prosecution to prove criminal liability is strenuous. As discussed in the earlier chapters the act of marital rape should be weighed as heinous as an ordinary rape provision ignoring the relationship between the perpetrator and victim. The sentence should not be liberal in nature which was also in the recommendation of the Verma committee. There should an appropriate training of the judges, lawyers, law enforcement officers, medical officer in understanding the nature of spousal rape in gender sensitive manner. Prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally. For example, in South Africa, despite these legal developments, rates of marital rape remain shockingly high. A 2010 study suggests that 18.8% of women are raped by their partners on one or more occasion.56 Rates of reporting and conviction also remain low aggravated by the prevalent beliefs that marital rape is acceptable or are less serious than other types of rape.57 The act of rape is a rape and there are no exceptions. It itself destroys the institution of marriage.
BERTRAND RUSSELL IN ‘’MARRIAGE AND MORALS”, 1929.
THORN HILL, R & PALMER, C.T, A NATURAL HISTORY OF RAPE, BIOLOGICAL BASES OF SEXUAL COERCION.
THORN HILL, R & THORN HILL, N., THE EVOLUTION OF PSYCHOLOGICAL PAIN, IN SOCIOLOGY AND SOCIAL SCIENCES, EDN., BELL, R. & BELL., N.
MARITAL RAPE – MYTH, REALITY AND NEED FOR CRIMINALIZATION, (2003) PL WEBJOUR
BODHISATTWAGAUTAM V. SUBHRACHAKRABORTY (1996)1 SC 490.
EXCEPTION TO SECTION 375 OF THE INDIAN PENAL CODE.
SECTION 376-B OF THE INDIAN PENAL CODE.
1 HALE, HISTORY OF THE PLEAS OF THE CROWN 629 (1778).
SAKSHI V. UNION OF INDIA 2004 (5) SCC 518.
CONSTITUTED BY GOI NOTIFICATION NO. SO (3003) E ON DECEMBER 23, 2012
SIR MATTHEW HALE. HISTORY OF THE PLEAS OF THE CROWN, 1 HALE PC (1736).
R. V R  4 ALL ER 481 AT P.484.
C.R. V UK PUBL. ECHR, SER.A, NO. 335-C; SEE PALMER FEMINIST LEGAL STUDIES VOI.V NO.1  PP.1-7.
S.142 ABOLISHED THE MARITAL RAPE EXCEPTION BY EXCLUDING THE WORD ‘UNLAWFUL’ PRECEDING ‘SEXUAL INTERCOURSE’ IN S. 1 OF THE SEXUAL OFFENCES ACT 1956.
R.S.C. 1985, C. C-46.
 2 SCR 40, ¶ 64
IBID ¶ 47.
CEDAW, UN DOC. A/34/46.
VERTIDO V. THE PHILIPPINES COMMUNICATION NO. 18/2008, COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN JULY 2010 .
GENDER LINKS AND THE SOUTH AFRICAN MEDICAL RESEARCH COUNCIL, ‘THE WAR AT HOME’ (2010) ACCESSED 12 JANUARY 2013.(URL: HTTP://WWW.MRC.AC.ZA/GENDER/GBVTHEWAR.PDF).
SEE FURTHER GEMMA HANCOX, ‘MARITAL RAPE IN SOUTH AFRICA: ENOUGH IS ENOUGH’ (2012) BUWA JOURNAL ON AFRICAN WOMEN’S EXPERIENCES 70 ACCESSED 12 JANUARY 2013. (URL: HTTP://WWW.OSISA.ORG/BUWA/SOUTH-AFRICA/MARITAL-RAPE-SOUTH AFRICA ).