Marital Rape and Indian Perspective

THIS ARTICLE WAS WRITTEN BY SHUBHAM PATEL, A STUDENT OF RMLNLU.

Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.”

~Mahatma Gandhi[1]

Introduction

The above quote by Mahatma Gandhi is of the year 1921 yet it even holds true today and summarizes what is condition of the women in the Indian society, a society where they are considered gods, ironic it is.

Rape is one of the most heinous and serious crimes against the person and dignity of a women, the legislature had tried to curb this crime by imposing strict punishment for the offence, yet, there is a sub species of the crime which rather goes unpunished, it is Marital Rape, i.e. when rape is committed on the women by her husband and he forces her to have a sexual encounter with him where the women neither had consent and nor was willing.

Many jurisdictions have recognized Marital Rape as an offence those include 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia, but in India it is not an offence still.

The main reason why the situation remains so is the outdated philosophy that the women once married becomes the property of a male and he has all the rights over the person of the female, this kind of thinking should be condemned at the first place, as it denies the basic dignity of a human life to a women.

Definition and Types

Marital Rape refers to act of any sexual nature by a spouse, by her husband, committed without the consent or against the person’s will, obtained by force, or threat of force, intimidation, or when a person is unable to consent, these act include sexual acts of any nature and the activities which are considered as degrading, humiliating, painful or unwanted. It basically refers to the actual use or threat of use of force by the husband against the wife to compel her to sexual intercourse.[2] This is also called conjugal rape or wife rape.[3]

There are various theories which define and characterize Marital Rape in different colors, Feminist Theory claims that exception given to marital rape is a tool exercised by the patriarchal society to control women and is a result of a power play by the male spouse in the marriage.[4] It is also considered that the exception given in such cases is remnant of earlier laws regarding women that considered them to be the property of the husband.[5]

Social Constructionism Theorists say that the men have dominated the society in law making and the political arena since ancient days;[6] laws are the reflection of the interests of men. These theorists believe that marital rape is a means through which male section tries to assert themselves over their wives.

Theorists of Sex-Role Socialization Theory say that the root of this can be found in the particular gender roles which a person is deemed to follow, and which guide the sexual interaction between spouses in marriage. In marriage women are always taught to be submissive, calm and passive whereas males are trained to be dominant and aggressive,[7] and they are of the opinion that marital rape is also an expression of perception of traditional sex roles.

Thus, the definition and other theories point that the marital rape is one such instances where the male dominance on women remains unheard and unresolved.

There are three forms of Marital Rape which are identified by legal scholars as by and large present in the society.

Battering rape: In battering rapes, the violence experienced by women is both physical and sexual in nature and they are subjected to 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.

The violence aspect of marital rape also raises several concerns which relate to the well being of women, who are subjected to such actions, as this causes several injuries which include both physical and mental injuries (psychological consequences).

Position in India

Despite several attempts and amendments, recommendations of law commissions and new legislations, one of the most humiliating and devastating act related to the virtue of a woman is not an offence in India, if same is done within the boundary walls of the marriage. The principles which treat women as a property of a man after marriage are mainly responsible for this kind of aberration. If the legislations are looked into, then the gap can be clearly seen.

The offence of rape is defined in Section 375 of the Indian Penal Code, and criminalizes any form of the sexual act committed on a women without her will and consent, and renders the consent immaterial when the women is below 18 years of age, what is bizarre with the provision is the exception clause attached to it, which says that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Section 376 of IPC lays down punishment for rape, which states that the rapist should be punished with life imprisonment with a term not less than 7 years but which may extend upto life and may also be liable for fine.

The Criminal Law Amendment Act 2013 which amended the previous Sections 375 and 376 resolved a lacuna which earlier existed in Section 376 which punished the husband committing rape on his wife only if she was below 12 years of age with imprisonment which may extend to 2 years along with fine[8], which firstly created two different age groups and secondly made the offence of rape, when committed on the wife less than age of 12 years a milder offence, though an age limit of 15 years for same was provided in Section 375, still the new provisions do not tend to help wife who is victim of such crimes as there is no protection of women who are above 15 years of age, which is very ironical as the age of giving consent and getting married, for a women is set to be 18 years.[9]

These provisions of law can be argued to be against the Basic Human Rights of women as well as violating Article 14 (as the distinction of marriage is drawn and on basis of that rape committed on a married women by her husband is considered no crime) and Article 21 of the Indian Constitution.

In India marital rape exists in de facto form but not in de jure form, legislatures almost all over the world have considered and made law punishing marital rape, in other place judiciary had evolved the concept and made it punishable, Indian judiciary in this aspect seems to be working in reverse gear though, In Bodhisattwa Gautam v. Subhra Chakraborty[10] the Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution, and yet it negates to recognize marital rape as a crime.

The root of this issue goes back to the statements made by Sir Hale, C.J. in England in 17^th century where 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, which she cannot retract.”[11] This created a notion that after the marriage, the husband has a right to sexual access to his wife even if she is not consenting.

There have been several legislations that came to rescue of women from maltreatment which may be inflicted upon them, Protection of Women from Domestic Violence Act, 2005 is such an example, but sad part attached to this is that though these Acts recognize and try to redress the aspect of physical violence with the women but no such provision is there for sexual violence and abuse and the law does not provides them protection.

Conclusion

Non criminalization of marital rape is one of the vices that is still left in the Indian legal system, it renders the women who are bound with marriage incapable. The present times are the times when the courts are reading within the rights enshrined under the Constitution to make sure that the citizens lives with certain dignity and not merely vegetative life, in these times these kinds of approach are not welcomed. There have a number of counter narratives presented against criminalizing the offence the likes of which are over-burden on judiciary as these offences are difficult to prove, victimization and false reporting to be done by women in order to settle score, but if the pros and cons are weighted then the need for criminalizing such offence is more. The legislature as is trying to safeguard women should take a step further and instead of focusing only on physical abuse should also try to save women from sexual abuse too which is committed with the marriage, as at the end everyone should have a right to live with dignity.

[1] Young India, Mahatma Gandhi, 105.

[2] Marital Rape And The Indian Legal Scenario, Priyanka Rath, Indian Law Journal, 1.

[3] Sex Crimes: Perpetrators, Predators, Prostitutes And Victims, Ronald B. Flowers, Charles C. Thomas Publisher, 2006, 38.

[4] Marital Rape in India: A Radical Feminist Perspective, Tamanna Khosla, Mainstream Weekly, Vol III, 2.

[5] Feminist Perspective on Rape, Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/feminism-rape/

[6] A Review of Marital Rape, Patricia A. Resick, Research Gate, 332.

[7] Review of Marital Rape, Patricia A. Resick, Research Gate, 332.

[8] Section 376(1) of Indian Penal Code before amendment of 2013.

[9] Section 5, The Hindu Marriage Act 1955.

[10]( 1996) 1 SCC 490.

[11] 1 Hale, History of the Pleas of the Crown 629 (1778).