By Niharika Kumar, Christ University

Editor’s Note:  Rape is defined as unlawful sexual intercourse without consent of a person as a result of physical force or threats, or because of fraudulent act of perpetuator. In India, rape by a stranger is a penal offence under Section 375 and 376 of IPC. Surprisingly, it explicitly excludes marital rape from ambit of conviction. As the consequences of marital rape are really high, there is clearly an urgent need for criminalization of the offence of marital rape. In 2006, it was estimated that marital rape is an offence punished under the criminal law in at least 100 countries and India is not one of them. Positive legal change for women in general is happening in India, but further steps are necessary so that both legal and social change takes place, which would culminate in criminalizing marital rape and changing the attitude about women in marriage.

INTRODUCTION                        

Rape is an unlawful sexual intercourse without consent of a person as a result of physical force or threats, or because of fraudulent act of perpetuator. In India rape by a stranger is a penal offence under section 375 and 376 of IPC. Surprisingly, it explicitly excludes marital rape from ambit of conviction. Marital rape is sexual intercourse by husband with his wife without her consent or by force or threat.

Patriarchal system that governs Indian families has always considered women as mere property of her husband or guardian. So rape was considered as theft of women and wrong against husband or guardian. This ideology has influenced our legislatures in ignoring offence of spouse rape by giving it shield of matrimonial right of the husband and by this they are silently accepting that women are merely an object of sexual gratification of her husband with no will of her own over her sexuality. This perception has subsided women’s right to equality and justice.

Rape is not just violence against women but a grave violation of a person’s fundamental right to life and personal liberty. Relationship between victim and perpetrator does not change it. Therefore it is wrong to believe that sexual intercourse with wife is husband’s prerogative provided to him by marriage. Social stigma attached to marital rape as suppressed women’s voice against her husband, who uses his superior position to breach her trust and individual integrity. It has been shown that, marital rape is more traumatic with longstanding consequences: physical and psychological. Hence marital immunity to husband has been withdrawn in several countries. By decriminalising spouse rape our state is failing in its duty to ensure gender justice that involves protection from crime and abuse.

It’s imperative that our legislators remove exception of marital rape from the definition of rape in IPC to reflect the realities of sexual abuse. Mere defence of protection of institution of marriage shouldn’t be detrimental in legislating laws to protect fundamental rights of women that include right to live with dignity, safety and bodily integrity.

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is therefore, forcible seizure, or the ravishment of a woman without her consent, by methods of force, fear or fraud. It is thus coercive, non consensual sexual intercourse with a woman. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as ‘deathless shame and the gravest crime against human dignity’. Rape is not merely a physical assault, but is destructive of the whole persona of the victim.

When one mentions the word rape, the tendency is to think of a stranger, a malicious person, but one does not think of rapes in the context of marriage. Thus marital rape, though prevalent, has received relatively little attention from social scientists, practitioners, the criminal justice system, and larger society as a whole. The law conceived rape as an instrument for protecting a man’s property from the sexual aggressions of other men. This shows that a woman has no right to her own body, and she is subject to that of her husband’s will and desire. A man can not be considered to be raping his own wife as she is his property and one does not violate his own property. Therefore the act of rape within marriage was not recognized.

Marital rape is hard to deal with as the perpetrator is someone the woman knows, trusts and loves. Women who are raped by their husbands are likely to be raped many times. They experience not only vaginal rape, but also oral and anal rape. Husbands often rape their wives when they are asleep, or use coercion, verbal threats, physical violence, or weapons to force their wives into having non-consensual sex with them. Despite underreporting, marital rape unquestionably has an enormous impact on the lives of women who experience it. Marital rape generally go unreported due to family loyalty or fear of husband, financial dependence on husband, safeguarding the future of their children, or because of limited laws that protect the victims of marital rape. Studies claim that approximately 10% to 14% of married women have been subjected to rape or attempted rape by her husband [i].

Today many countries have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. This indicates that marital rape is now recognized as a violation of human rights. In 2006, it was estimated that marital rape is an offence punished under the criminal law in at least 100 countries and India is not one of them. Though there have been plenty of legislations and enactments passed in India in regard to violence against woman in her own house, like laws against female infanticide and domestic violence, marital rape has failed to gain recognition as a crime in the eyes of policy makers. Marital rape, in India, is hidden behind the sacrosanct curtains of marriage.

MARITAL RAPE AND LAWS IN INDIA

Marital rape is not an offence in India. Legislations regarding marital rape in India are either non-existent or abstruse and dependant on the interpretation by Courts. Section 375[ii], the provision of rape in the Indian Penal Code (IPC), mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” According to section 376 of IPC, which provides punishment for rape, 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.

Thus marital rape is considered a rape only if the wife is less than 15 years of age, and the severity of punishment is milder. There is no legal protection accorded to the wife after the age of 15, which is against human rights regulations. The same law that provide for the legal age of consent for marriage to be 18, protects from sexual abuse only those up to the age of 15. As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:

  1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment upto 2 years or fine, or both;[iii]
  2. When the wife is below 12 years of age, offence 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.[iv]
  3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and fine;[v]
  4. Rape of wife of above 15 years in age is not punishable.[vi]

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which considers marital rape as a form of domestic violence.[vii] Under this Act, a woman can go to the court and obtain judicial separation from her husband for marital rape. Marital rape is perverse: not only is a woman’s body raped, but also her love and trust is violated thus casting her in a sense of insecurity and fear. Her human rights are sacrificed at the altar of marriage. Yet the laws to protect the interests of the victims of marital rape are inadequate and insufficient, and the steps taken are unsatisfactory.

The basic premise of these “laws” is that consent to marry encompasses a consent to engage into sexual activity. But, does consenting to engage in sexual activity mean consent to being inflicted with sexual violence? Violence creates a sense of fear and insecurity causing the woman to submit to sex. It is not the same as consenting to sex. The distinction between consent and non-consent in contradistinction is fundamental to criminal law.[viii]

It is ironical that a woman can protect her right to life and liberty, but not her body within her marriage. The very definition of rape (section 375 of IPC) needs to be changed. The only resort for women so far is section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, there is no standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’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.

RIGHT TO LIVE WITH HUMAN DIGNITY

In Francis Corallie Muin v. Union Territory of Delhi case, the concept of right to life under Article 21 of the Constitution was highlighted. According to this case ART 21 includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings.[ix] The right to live with human dignity is one of the most basic feature of the right to life which recognizes the autonomy of an individual.

The Supreme Court has held in a catena of cases that the offence of rape violates the right to life and the right to live with human dignity of the victim of the crime of rape. One such example is The Chairman, Railway Board v. Chandrima Das.[x] The Supreme Court has observed that rape is not merely an offence under the Indian Penal Code, but is a crime against the society as whole. In Bodhisattwa Gautam v. Subhra Chakraborty court held that rape is less of a sexual offence than an act of aggression aimed at degrading and humiliating the women.[xi] Thus 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 intersourse without her will is thus unconstitutional.

RIGHT TO SEXUAL PRIVACY

Right to privacy is not mentioned in the Indian Constitution. Nevertheless, in a series of cases like  Kharak Singh v. State of U.P.; Govind v. State of Madhya Pradesh,; Neera Mathur v. LIC etc, the Supreme Court has recognized that a right of privacy is constitutionally protected under scope of Article 21.[xii] The Right of Privacy under Article 21 includes a right to be left alone and not disturbed. Any form of forceful sexual intercourse violates the right of privacy, sexual privacy. It is submitted that the doctrine of marital exemption to rape violates a married woman’s right to privacy by forcing her to enter into a sexual relationship against her will.

In the case of State of Maharashtra v. Madhkar Narayan[xiii], the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished. In the landmark case of Vishakha v. State of Rajasthan[xiv], the Supreme Court extended this right of privacy to workplaces as well. Further, along the same line we can interpret that there exists a right of privacy to enter into a sexual relationship even within a marriage. Thus by decriminalizing rape within a marriage, the marital exemption doctrine violates this right of privacy of a married woman and is hence is unconstitutional.

RIGHT TO BODILY SELF- DETERMINATION

The right to bodily self-determination can also come under the ambit of Article 21 although the Constitution does not expressly recognize it, such a right exists in the larger framework of the right to life and personal liberty. The concept of right of self-determination is based on the belief that the individual is the ultimate decision maker in matters closely associated with her/his body or well-being and the more intimate the choice, the more robust is the right of the individual. The is the only authors of his own fate which determines his existence. Sexual relationship is one of the most personal choice that a woman reserves for herself. Choices related to sexual intercourse is a form of self expression and self-determination. If the law tries to take away the right of expressing and revoking such consent definitely deprives a woman her  constitutional right of bodily self-determination. So, It is submitted that the marital exemption doctrine effectively deprives a married woman her right to bodily to self-determination and interferes in her most personal choice making.

JUDICIAL STAND

The Supreme Court, in State of Maharashtra vs. Madhukar Narayan Mandikar[xv], has referred to the right of privacy over one’s body. What is sad here is to observe how court has conveniently put wife out and has yet not given her privacy over her own body whereas women who have been subjected to rape by stranger have that right as rape is criminalized but not marital rape. In this case it was decided that a prostitute had the right to refuse sexual intercourse if she was unwilling.

In Sree Kumar vs. Pearly Karun[xvi], the Kerala High Court observed that the offence under Section 376A, IPC will not be attracted as the wife is not living separately from her husband under a decree of separation or under any custom or usage, even if she is subject to sexual intercourse by her husband against her will and without her consent. In this case, the wife was subjected to sexual intercourse without her will by her husband when she went to live together with her husband for 2 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.

The judiciary seems to have completely relegated to its convenience the idea that rape within marriage is not possible or that the stigma of rape of a woman can be salvaged by getting her married to the rapist.

CONCLUSION

Marital rape is not fully criminalized in India. It definitely is a serious form of crime against women and worthy of government’s attention. It is a fact that women who are raped by their husbands are more prone to multiple assaults and often suffer long-term physical and emotional problems. In this context, marital rape is even more traumatic for a woman because she has to stay with her assailant everyday. As the consequences of marital rape are really high, there is clearly an urgent need for criminalization of the offence of marital rape. Positive legal change for women in general is happening in India, but further steps are necessary so that both legal and social change takes place, which would culminate in criminalizing marital rape and changing the attitude about women in marriage.There are many loopholes in Protection of Women from Domestic Violence Act, as the Act does not openly speak against marital rape. On the brighter side enactment of a specific legislation against domestic violence has opened the door for a legislation criminalizing marital rape. This clearly indicates shift in attitude of state which earlier believed in non-intervention in family sphere.

 Edited by Hariharan Kumar

[i]  Box, S., Power, Crime and Mystification, (London Tavistock Publications, 1983), p.122,

  Diana. E. H. Russell, Rape in Marriage, Indiana University Press, Bloomington, 1990.

[ii]  The section 375 of the Indian Penal Code (45 of 1860) reads: —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —

First.— Against her will.

 Secondly.—Without her consent.

Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given

because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or

intoxication or the administration by him personally or through another of any stupefying or unwholesome

substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.— With or without her consent, when she is under sixteen years of age.

 Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

 Exception. —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

[iii]  Indian Penal Code (45 of 1860), Section 376(1).

[iv] Ibid

[v]  Indian Penal Code (45 of 1860), Section 376A.

[vi]  Indian Penal Code (45 of 1860), Exception to Section 375.

[vii] The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii)

[viii] Shroff, Aditya & Menzes, Nicole, “Marital Rape as a Socio-Economic Offence: A Concept or a Misnomer”, Student Advocate,  Vol. 6.

[ix] AIR 1981 SC 802

[x]  AIR 2000 SC 988.

[xi] AIR 1196 SC 922

[xii] AIR 1963 SC 1295; AIR 1975 SC 1378;(1992) 1 SCC 286

[xiii] AIR 1991 SC 207.

[xiv] AIR 1997 SC 3011.

[xv]  AIR 1991 SC 207

[xvi]  http://indiankanoon.org/doc/486164/

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