MARITAL RAPE: MISCONCEPTIONS AND THE NEED FOR CRIMINALISATION

This article was written by Ayushi Priyadarshini a student of Symbiosis Law School, Pune.

Despite the attention marital rape has generated in the past decade, the literature on this area is sparse. The article gives a comprehensive view about marital rape in India and its legal aspect. It also talks about the lengthy history of legal, cultural and professional invalidation of marital rape victims, and the resulting negative implications. Where marital rape is a heinous act violating the right to consent and human dignity, it is not illegal in the Indian law. This article has a question to the judicial system of the country – being the largest democracy in the world, why does India still fail to serve justice to the women who are the victim of marital rape, for whom the post-traumatic shock is almost unrecoverable, paving way to high probability of depression, repression and denial? How can the sanctity of the institution of marriage be revered if it is simply considered as a license to engage in sexual intercourse? The article thus talks about the certain fundamental human-rights changes which 21^st century India needs. It is a call for equality and freedom.

INTRODUCTION

In 2012, High Commissioner for Human Rights, Navi Pillay stated that:
“Violations of women’s human rights are often linked to their sexuality and reproductive role. In many countries, married women may not refuse to have sexual relations with their husbands, and often have no say in whether they use contraception. Ensuring that women have full autonomy over their bodies is the first crucial step towards achieving substantive equality between women and men. Personal issues—such as when, how and with whom they choose to have sex, and when, how and with whom they choose to have children—are at the heart of living a life in dignity.”

Marital Rape refers to unwanted intercourse with one’s spouse obtained by physical violence, or the threat of it, when the victim is unable to give consent or denies to do so. It is hence a battering rape or a sadistic or an obsessive rape with one’s legal spouse. It is a non-consensual act of violent perversion by one partner against the other where latter is physically and sexually abused.

More than two-third of married women in India, from age 15 to 49 have been beaten, raped or forced to provide sex. In the year 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families for refusal to submit to her husband’s whims and fancies. Marital rape is thus one of the most under-reported crimes as the victim herself does not know it is a crime, to let alone testimony for it.

There are a number of factors promoting marital rape, the chief one being abuse of alcohol and drugs. Living in poverty or adverse circumstances also makes the husband vent out his frustrations in a violent form. There are also Indian traditions which build the male ego of having the female under his ‘control’ and exerting ‘power’ to boost his masculinity. Appallingly in a variety of cultures, marriage after a rape of an unmarried woman has been treated historically as a “resolution” [citing Biblical injunctions (Exodus 22:16–17 and Deuteronomy 22:25–30)]. Criminal prosecution for rape ends with marriage in countries like Algeria, Bolivia, Cameroon, Jordan and Lebanon.

The Report on Sexual Offences (1984) by the British Criminal Law Revision Committee rejected the idea that the offense of rape should be extended to marital relations; writing: “The majority of us believe that rape cannot be considered in the abstract as merely ‘sexual intercourse without consent’. The circumstances of rape may be peculiarly grave. This feature is not present in the case of a husband and wife cohabiting with each other when an act of sexual intercourse occurs without the wife’s consent. They may well have had sexual intercourse regularly before the act in question and, because a sexual relationship may involve a degree of compromise, she may sometimes have agreed only with some reluctance to such intercourse. Should he go further and force her to have sexual intercourse without her consent, this may evidence a failure of the marital relationship. But it is far from being the ‘unique’ and ‘grave’ offence described earlier. Where the husband goes so far as to cause injury, there are available a number of offences against the person with which he may be charged, but the gravamen of the husband’s conduct is the injury he has caused not the sexual intercourse he has forced.”

LEGAL STATUS

1. The Belgian Court of Appeal at Brussels recognized marital rape in 1979 and held that a husband who uses serious violence to coerce his wife into having sex against her wishes is guilty of the criminal offense of rape.
2. The High Court of Justiciary, Scotland, abolished the marital immunity in rapes in  v. H.M. Advocate[1] in 1989. This triggered a chain reaction in other developed commonwealth nations of England and Wales (1991) in R v. R[2], and Australia (1991) in R v L[3].
3. The Netherlands criminalized marital rape in 1991. The legislative changes provided a new definition for rape, removed the marital exemption, and made the crime gender-neutral.
4. The Supreme Court of Spain ruled in 1992 that sex within marriage must be consensual and that sexuality must be understood in light of the principle of the freedom to make one’s own decisions with respect to carnal activity.

Marital rape in India is not a crime. It is believed that if marital rape is made illegal, the institution of marriage itself will fall apart. Men would then rather go to a prostitute than get a wife. When a man asks for sex, he is demanding for his conjugal rights. Section 375 of the Indian Penal Code defines rape and the only exception is sex between a husband and wife. By the law:

1. When the wife is between 12-15 years of age, offence is punishable with imprisonment up to 2 years or fine, or both;
2. When the wife is below 12 years of age, offence is punishable 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.
3. Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine;
4. Rape of above 15 years is not punishable.

The Protection of Women from Domestic Violence Act, 2005 protects women from sexual assault and physical and mental cruelty but lacks where marital rape is concerned. There is only a civil remedy provided there. Under this Act, a woman can go to the court and obtain judicial separation from her husband for marital rape. It recognizes marital rape as a form of domestic violence. Article 21 of the Indian Constitution providing the Right to Life and Personal Liberty to each individual includes under its purview, the right to live with dignity, which is evidently violated by marital rapes. Moreover the right to privacy is also invaded. The Law Commission of India (172^nd report) and the National Commission for Women have created strict anti-rape laws but it was the Justice Verma Committee that proposed to criminalize marital rape but it has not been included in the Criminal Law Amendment Bill, 2013. Again, taking into account traditions and culture, the Hindu Marriage Act, 1995 makes the wife duty-bound to have sex with her husband.

In Bodhisattwa Gautam v. Subhra Chakraborty[4], the court held that the marital exemption doctrine is violative of wife’s right to live with human dignity. Any law which violates women’s right to live with dignity and gives husband right to force wife to have sexual intercourse without her will is thus unconstitutional. In Sree Kumar v. Pearly Karun[5], the wife was subjected to sexual intercourse without her will by her husband when she went to live together with her husband for two days as outcome of settlement of divorce proceedings which was going on between the two parties. Hence the husband was held not guilty of raping his wife though he had done so. In the case of State of Maharashtra v. Madhkar Narayan[6], it was held that violating a woman’s sexual privacy is a crime. The precedents thus have a mixed-stance on the Indian legal provisions of marital rape.

CONCLUSION

The need of the hour is to criminalize marital rape. The law is so ridiculous that a woman cannot go the court for a husband forcing her for sex but the husband can sue her if she does not comply for sex. All the remedies provided are only nominal and superficial and a strong amendment needs to be brought. Marriage does not thrive on sex and moreover, on forced sex. Hence the law needs to take cognizance of such a vast violation of fundamental rights of any married woman and the right to her body, in order to protect her from any abuse and inclusively attain gender equality.

[1] 1989 S.L.T. 469

[2] (1991) 3 WLR 1767

[3] (1991) 174 CLR 379

[4] 1996 AIR 922

[5] 1999 (2) ALT Cri 77

[6] AIR 1991 SC 207