By Udisha Ghosh, Symbiosis Law School, Pune
“Editor’s Note: Rape is one of the most brutal forms of violation of a woman’s privacy and integrity. In the wake of increasing rapes in the country, the rape laws were amended in 2013 on the recommendations of the Justice J.S. Verma Committee Report. However, one of the biggest lacunae that exist in the criminal law of India is the non-criminalisation of marital rape. Marital Rape is not criminalised as it is believed that in a marriage, there is implied consent. But, rape is still rape even though the parties are in the reaction of husband and wife. Many countries have done away with the exception of marital rape in their penal statutes. This has been recommended in India as well by the Law Commission and the Justice Verma Committee. However, no concrete action has been taken. It is high time that marital rape be criminalised as it a violation of Fundamental Rights.”
Marriage in Indian society is considered to be a sacred institution; it is the very foundation of a stable family and a civilised society.[i] However, such institution veils acts like sexual cruelty and other forms of brutality in the household. Marital rape is one such brutality. Marital rape can be defined as any unwanted intercourse or penetration (anal, vaginal or oral) obtained by force, threat of force or when wife is unable to consent.[ii]
Among all the crimes against the women, marital rape seems to be the most under reported crimes in the country.[iii] The reason for this is the lack of awareness among people and also the fact marital rape is not an offence in the IPC under Section 375. Further a study done by International institute of Population Sciences, Mumbai reported that 26 per cent of women in Pune, 23 per cent woman in Bhubhaneshwar and 16 percent in Jaipur often have sex with their husbands against their will.[iv] Such statistics clearly illustrate the victimisation of women and sexual intrusion in marriage being a common phenomenon.
Indian society can still be considered to be a conservative society, where the woman is restricted from discussing her sexual as well as her personal life with anyone. Even if woman complaints then also most of them restrict themselves to mental and physical harassment Even if they try to do, there is no law that can book a husband for rape if the wife’s age is more than 15 years.
The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society[v]
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.
In the seventeen century England in C.J, Sir Matthew Hale[vi] received much criticism after he commented that:
“But 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 up her in this kind unto her husband, which cannot retract.”
He explained this point of view by stating that husbands may not be charged with rape of their wives, according to the cautionary rule[vii] of matrimonial consent.
However, soon this view was changed when the doctrine of marital rape was for the first time discussed in appellate court of England in R v. Clarence[viii], though the defendant was not charged with rape but the case became a precedent for a wife to protect herself from non-consensual sex as opposed to Sir Hale’s statement. However for the first time marital rape was prosecuted in R v. Clarke[ix] where the court held that consent was revoked due to non-cohabitation.
Finally, in the case of R. v. R,[x] it was stated that the marital rape exemption was illogical and it was held that “the fiction of implied consent had no useful purpose to serve today in the law of rape”. Consequently R’s appeal was dismissed and he was convicted for committing rape. That was the beginning of criminalisation of marital rape in the English laws.
Most of the common law countries like Australia, South Africa and Canada have followed the England system and have abolished marital rape law exemption. For instance, in Australia under Section 73(4) of the Criminal Law Consolidation Act, 1953 provides “No person shall, by reasonably of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person.”
Similarly, in South Africa the concept of exemption on spousal rape has been repealed. Under Section 5 of Family Violence Act 1993: “Notwithstanding anything to the contrary contained in any law or in common law, a husband may be convicted of the rape of his wife.”[xi]
Even Canada also has repealed the exemption in the spousal rape in 1983.[xii]
India’s Legal Position on Marital Rape
Marital Rape exception under Section 375– The deep patriarchal norms present in the society have created a mindset that domestic violence is a private matter and should be settled within the four walls of the house. The burden lies on women to be bound by the social norms. Section 498[xiii] of IPC is a remedy against violence in marriage, but it has a very limited scope and does not provide immediate relief.[xiv]
Even under Section 375 of IPC, marital rape has been given as an exception. Thus victimised married women are denied state protection. Women under this statute are being divided in two groups: those below fifteen years and those separated from their husbands. Punishment of rape against girls below twelve years is imprisonment for ten years or more, while rape against girls under fifteen carries lesser punishment if the rapist is married to her.[xv]
Law Commission Report- In the 42nd Report by the Law Commission it was recommended that criminal liability should be attached to intercourse of man with his minor wife. However, the Committee refused the recommendation stating that husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage. Further in 1983 with addition of Section 376A IPC, rape of judicially separated wife was criminalised.
Even the Justice J.S. Verma Committee Report recommended that exceptions allowing marital rape should be removed. It also included that marriage or an intimate relationship should not be mitigating factor in reducing sentences for rape.[xvi] Till now, this has been the only major recommendation made by any of the committee on marital rape.
Protection of Woman from Domestic Violence Act, 2005- Protection of Women from Domestic Violence Act, 2005 offers civil remedies for crimes against women including marital rape; it provides protection against domestic violence and sexual perversions.[xvii] It is quite unsatisfactory that violence against women should be seen as a civil wrong rather than criminal offence. If marital rape is made into a criminal wrong then it would act like a deterrent and prevent future crimes.
Criminal Amendment Act, 2013- The recent Criminal Amendment Act, 2013 satisfies some of the requirements that were proposed in the Law Commission Report in 172nd Commission.[xviii] Section 375 has been expanded and the definition of rape under sub-section (a) states that rape includes penetration of penis in the mouth, urethra or anus of a woman against her will.[xix] Further by addition of Section 376A, 376B, 376C and 376D rape laws have been made more stringent.
Even though there are many positive reforms brought by Criminal Amendment Act, 2013 yet it has a number of shortcomings. One of them being non-inclusion of marital rape within the ambit of the definition of rape. Various criminal law reports and recommendations given by Justice J.S. Verma Committee have fallen on deaf ears and it should be realised that punishment of marital rape is important to protect the woman.
Marital Rape: Infringement Of Fundamental Rights
Several states have recognised marital rape as an offence breaking the chauvinistic view. In earlier times, a woman was considered to be the sexual property of the woman. However, now this view has changed and she is equal to her husband.
The exception under Art. 375 which permits a man to have sexual intercourse with his wife without her consent is the infringement of Article 14 and Article 21 of the Constitution. Article 14 protects a person from discrimination. But the exemption under Section 375 of IPC, 1860 discriminates a wife when it comes to protection from rape. Article 21 provides the fundamental right to life and live with human dignity. The current law fails to look at consent of a woman as an elementary condition for sexual element; and taking away the element of consent from married woman when cohabiting is not only immoral but also unconstitutional.[xx] Even in Bodhisattwa Gautam v. Subhra Chakraborty[xxi] 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.’ Yet the current law negates this very pronouncement by not recognizing marital rape, thus, directly violating the Right to life with dignity under Article 21.
The Constitution under Art.51A (e) states that it is the fundamental duty of every citizen of India to denounce practices that are derogatory to the dignity of woman. Thus the legislative framework should make amendment under Section 375 of IPC and save married woman who face evil of forceful sexual intrusion at the hands of their husband.
Marital rape is a grave violation of human rights and not just a crime of passion. Most of the countries like Canada, Australia and South Africa have amended and abolished the marital rape exemption in their legal texts. Section 375 of IPC should be amended by the Indian Parliament. Further, Section 376E should be added to describe the punishment specifically for marital rape as recommended in 172nd Law report.[xxii] Repealing of Section would enlighten the citizens and would prevent marital rape in future.
Not only this, 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’ as a ground of divorce, it is advisable to have the legal position clarified. Though the demand for divorce should be at the discretion of 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. This would act a deterrent for the future offenders.u human
It is important that there should be more awareness among women and capacity building is the need of hour. Societal stigmatization and the chauvinistic attitude of the people should change. Rape is rape and marriage cannot be an excuse for committing such a heinous offence. The first step to stop such an offence is to empower and educate the women to stand up against such inhumane acts would abolish the existing marital rape exemption. It is time that women should start raising voice against such injustice.
“A women with a voice is by definition is a strong woman. But the search to find that voice can be remarkably difficult.”- Melinda Gates
Edited by Kudrat Agrawal
[i] Prof Kusum ,Family Law I,3 Published by Lexis Nexis (3rd 2003).
[ii] Berger R.K Wife Rape: Understanding the response of the survivors and service providers , Thousand Oaks , CA: Sage (1996).
[iii] Aslesha Kadian, It’s time we recognize marital rape for crime it is, THE HINDU BUSINESS LINE, Mar. ,2013, available at : http ://www.thehindubusinessline.com/on-campus/-it’s- time –we- recognize-marital-rape-for-the-crime-it-is/article4505339.ece.
[iv] Mihika Basu, Marital rape is an ugly reality, THE INDIAN EXPRESS , April 30, 2013 Available at- http://www.indianexpress.com/news/marital-rape-is-an-ugly-reality/1109618 Last seen at 28-08-2013.
[v] Thornhill, R. & Thornhill, N., The Evolution of Psychological Pain, in Sociology and Social Science, Edn., Bell, R. & Bell, N. (Texas Tech University Press, 1989).
[vi] Mathew Hale ,The History of Plea of the Crown(1778).
[vii] Cautionary rule is a rule to assist judges with analyzing evidence. It requires judicial officers to exercise caution before adopting evidence of certain witnesses on ground that evidence of such witnesses is unreliable.
[viii] R v. Clarence, (1888) 22 Q.B.D 23.
[ix] R v. Clarke,(1949)2 All ER 448.
[x] R v. R,(1992) 1 A.C.599, House of Lords.
[xi] Oxford University, The reform of India’s Sexual Violence Laws, Jan 2013 Available at: http://denning.law.ox.ac.uk/news/events_files/2013
[xiii] Sec. 498A, Indian Penal Code, 1860- Whoever being the husband of the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
[xiv] Lawyers Collective, Staying Alive: On the Protection of Women from Domestic Violence Act 3(2005).
[xv]Sec. 376 of Indian Penal Code,1860.
[xvi] Report of the Committee on the Amendments to Criminal Law, Jan 23, 2013 Available at: http:// www.prsindia.org/uploads//media/Justice20 verma 20committee/js report.pdf.
[xvii] Peter Foster, India outlaws wife-beating and marital rape, THE TELEGRAPH, Oct 27, 2006 Available at: http://www.telegraph.co.uk/ news/worldnews /1532567/India-outlaws-wife-beating-and-marital rape.
[xviii] Badapbiang T. Dkhar, Protecting India’s Woman: The need for Criminalization of Marital rape and Criminal Amendment Act, 2013 ,Alexis Journal of Public Policy and Law, Vol 1 Issue 1.
[xix] Criminal (Amendment) Act, 2013.
[xx] Anjali Srivastava, Devanshu Jain and Ayan Hazra ,Marital Rape: A legalized sin , Indian Journal of Applied Research, Vol. 3 Issue 2, Dec. 2013.
[xxi] (1996)1 SCC 490