A man is said to commit "rape" who has sexual intercourse with a woman against her will, without her consent, with consent, which is obtained by threatening for life or if the consent is given out of unsoundness of mind or due to intoxication and with or without consent when she is under sixteen years of age.
Exception 2 of Section 375 exempts unwilling sexual intercourse with a wife stating that sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape, thus making it legal for men to rape women who happen to be their wives.
Most countries in the world recognize rape as a crime being it done by a stranger or a husband and that’s why they have already criminalized marital rape. There have been many writ petitions before the Supreme Court and various High Courts filed by individual and civil society organizations to declare marital rape as a criminal offense but nothing has been done about it.
The existence of sexual violence in a marriage has a long history as the institution of marriage itself. But for thousands of years, marital rape was considered a private issue, not a public issue. The reason for this is that during the British colonial period in the Victorian era, India was a British colony and all the Indian laws enacted at that time were influenced by English laws. At that time a married woman was not considered as an independent legal entity but was considered as a personal possession of the husband. This is the reason why she did not possess any of the rights that have now been guaranteed to her as an independent legal entity.
The Indian Penal Code was drafted in the 1860s based on Victorian patriarchal norms which did not recognize men and women as equals, did not allowed married women to own property, and merged the identities of husband and wife under the “Doctrine of Covertures”.
The viewpoint that a husband cannot be charged with the rape of his wife was expressed by Sir Matthew Hale (1609-1676). He expressed that, “the husband cannot be guilty of rape committed by himself upon his lawful wife, or by their mutual consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”
In 1753, William Blackstone also gave justification for not recognizing marital rape and defended the common law Doctrine of Covertures (the legal status of a married woman as her husband’s property). He said that “by marriage the husband and wife is one person in law that is the very being or legal existence of the woman is suspended during marriage.”
The ideology of permanent and irrevocable consent spread through legal and cultural perception of marriage and forced sex within it. This ideology has global sonority, not because people on many parts of the world were influenced by Lord Hale or Blackstone, but because control of woman’s body through marriage is bedrock of patriarchy. Until 1993, rape laws across United States included a “spousal exception” that particularly excluded husbands from rape prosecution.
There is massive variation cross-culturally in whether rape by a husband is regarded as a criminal violation, or just an “unquestioned wifely duty”. However, perspective is changing in all cultures. Marital rape is finally coming out from behind the closed doors and efforts to respond are also growing in local communities as well as international organizations.
GLOBAL VIEW ON MARITAL RAPE
Many countries had this exception of rape in their laws until 1979.In a reported incident, a Massachusetts bartender broke into the house he used to share with his wife and raped her. The case led to the first marital rape conviction in the nation. Women’s rights groups’ campaigned state-by-state for lawmakers to change their laws, and by 1993, marital rape was technically illegal in all 50 states of United States.
Poland was the first country to make marital rape a criminal offence in 1932 followed by Australia which was the first common law country to pass reforms in 1976 that made marital rape a criminal offence. In the two decades before that, several Scandinavian countries passed laws criminalizing spousal rape including Sweden, Norway, Denmark, and the former Soviet Union and Czechoslovakia. Poland in 1932 was the first to have a law explicitly making it a criminal offence. Since the 1980s, many common law countries have legislatively abolished the immunity of marital rape including South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel.
The Court of Appeals of New York struck down the marital exemption from their code in 1984. In 1986, the European Parliament’s Resolution on Violence against Women 1986 called for the criminalization of spousal rape which was done soon after by several nations including France, Germany, the Netherlands, Belgium and Luxembourg. In 1991, the House of Lords in the United Kingdom struck down its common law principle that a marriage contract implied a woman’s consent to all sexual activity.
In 2002, Nepal got rid of the marital rape exception after Nepal’s Supreme Court stated that it was against the constitutional right of equal protection and the right to privacy. It stated, “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.” According to the United Nation Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence.
STATUS OF MARITAL RAPE IN INDIA
Marital rape is not considered an offence in India. The legislation has been silent on this topic and the only option left to the women is to be dependent on the courts. The Indian law is silent about the legal rights of the wife, her free consent, and the mental and physical trauma that the wife has to go through.
ROLE OF PATRIARCHY
India is a patriarchal society where marriage is considered a sacrament and it is expected from the couple to not disclose anything personal about their relationship beyond the four walls of their bedroom. The criminal law regarding rape in India is framed in a way that first confirms the relationship between the victim and the perpetrator, if she does hold a relationship with him, then it disables her to take legal action against her rapist, a husband raping his wife is an exception of the law of rape under Indian law. This law in itself strips the right of that married women to approach the court if she is raped by her husband. The government of India has repeatedly argued against criminalizing marital rape saying that it will destroy the institution of marriage citing a wide scope of misuse, the government's point is that the already existing laws are sufficient and there is no need to make a separate law criminalizing it. Talking about the reality, the punishment given under Section 498A is much lesser as compared to the punishment given in the cases of rape as covered under Section 375 and 376 of the Indian Penal Code, while the punishment for 498A is a minimum of three years with an optional fine, the punishment of a minimum of ten years is given in the case of rape. The government says that if they criminalize marital rape then the institution of marriage will be harmed, but what institution are they even talking about, the institution of marriage is in no way more important than women getting raped. Gender-based violence is so deeply embedded in patriarchal norms that women are raised in a way that does not teach them to recognize what constitutes marital rape. The women who complain of such tortures are told by their parents to go on with this and some women even accept these sexual desires of their husbands fearing that their husband will go with some other women. Women do not have a way of living after they part because of a lack of income, education, employment and social contacts. The Rape laws in India are framed in a way that encourages patriarchy considering women to be the property of men after marriage and having no right to their bodies. The lawmakers failed to understand that a marriage is not a license for the husband to rape his wife. A married woman has the same right to her body as does an unmarried woman. As per the current law, the wife is presumed to give perpetual consent to have sex with her husband. This patriarchal and orthodox mindset is the reason that about 70 per cent of women in India are victims of domestic violence and every 16 minutes a woman is raped, every four minutes a woman faces cruelty by in-laws and out of this 99.1 per cent of cases of sexual violence go unreported.
INFRINGEMENT OF FUNDAMENTAL RIGHTS.
Violation of Article 14-
The Constitution of India ensures to all Citizens that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" despite having this as a fundamental right provided to all citizens, our law is discriminatory against the women who have been raped by their husband.
When the Indian Penal Code was framed women were not considered individual entity rather their identity was merged with that of their husband. Now that they are given individual rights and various laws are made for the protection of women from harassment, domestic violence, dowry, and several others, Section 375(2) violate the right to equality given under Article 14 because it denies equal protection against sexual harassment and rape to married women, or we can say that our law victimizes women just because of their marital status, while protecting women who are not married or even divorced from these same acts. It is more difficult for married women to escape from this abusive relationship because they are economically and legally tied to their husband or let's say their rapists.
It was said in a case that sexual intercourse or sexual acts by a man with his wife, the wife not being 18 years, is not rape.On 26 July 1890, an 18 years old girl died of excessive bleeding due to sexual intercourse with her 30-year-old husband. But the husband was only convicted for causing grievous hurt by doing a rash and negligent act dangerous to life with one year of imprisonment and not for rape just because she was his wife. After noticing such heinous and inhuman crimes, the government is still not convinced enough to criminalize marital rape.
Violation of Article 21-
Article 21 talks about the Right to life and personal liberty which determines bodily integrity and sexual privacy in itself. This article has become a source of many substantive rights and safeguards to people, but not criminalizing marital rape on the illogical argument of archaic norms and the institution of marriage is unlawful and unconstitutional.
The former Chief Justice of India Dipak Misra in the inaugural session of the National Conference organized by the KLE Society's Law College said that there is no need to bring such kind of law according to his personal opinion. He said that marital rape should not be regarded as an offence in India because, in villages, it will create absolute anarchy he also added that our country is sustaining itself because of family values. One thing that needs to be noticed is that he is the same judge who during his tenure as Chief Justice had delivered several landmark judgments affecting fundamental and personal rights, including Section 377 and Aadhaar. He was also part of a two-judge bench that stated that in a case of rape or attempt to rape, the conception of compromise would go against a woman's honor but now while talking about marital rape he is considering family values and institution of marriage.
Delhi government additional standing counsel Justice Nandita Rao said that non-criminalization of marital rape was not a violation of article 21 because a wife is not compelled to live with a sexually abusive husband, but the same goes in the case of domestic violence, dowry, and other types of harassment that are criminalized, in these cases as well a wife is not compelled to live with her husband
The Criminal Law (Amendment) Bill, 2012 by Parliamentary Standing Committee in Home Affairs-
The Parliamentary Standing Committee in Home Affairs presented its 167th report on the Criminal Law (Amendment) Bill, 2012 in the Rajya Sabha on March 1, 2013, considering both the 172nd report on the Review of Rape Laws by Law Commission and report of the Justice JS Verma Committee, it stated that amendments were needed to Section 375 of Indian Penal Code, including the issue of criminalization of marital rape. The Justice JS Verma committee clearly stated that the law needed to be amended to delete the exception of marital rape and stated that criminalizing marital rape will make women feel safer from abusive husbands and they will also be able to receive legal help to save and recover themselves from domestic violence and sexual abuse.
However, the government didn't accept this stance and chose to not remove the exception because according to them it was not suitable for the Indian context due to various reasons like level of education, poverty, social customs, values, religious beliefs, and the mindset of society etcetera.
It was also said in the Lok Sabha that marital rape should not be made a criminal offence because things like this should be sorted out within the family or by counseling.
The Pam Rajput Committee appointed by the central government of India also criticized the legislature for its failure to criminalize or even recognize marital rape and stated that there were various loopholes in the criminal laws (amendment) act 2013 because it was silent on the issue of marital rape. It also acknowledged that the Act widened the definition of rape, by defining consent, non-penile penetration and even criminalizing the act of rape done by a man against his separated wife, but the only step that was not taken was the criminalization of marital rape.
As the situation has worsened by the lockdown it is statistically proven that the home is the most dangerous place for women, according to the United Nations (UN). Globally, one in three women has experienced intimate partner violence, in March when countries around the world started to impose lockdowns the World Health Organization (WHO) alarmed the governments to do their best and take care of the spike in intimate partner violence and provide some support to women.
Taking everything into account that is mentioned in this article, India should criminalize marital rape. 52 major countries in the world have criminalized marital rape. Even in the United Kingdom, the House of Lords described marital rape as an “anachronistic and offensive legal fiction” and struck down its common law principle from which the Indian law was influenced. So, if the main source has amended then it can also be attainable by India.
The neighboring countries of India that is Nepal and Pakistan have also criminalized marital rape. Nepal got rid of the marital rape exception by stating that it went against the constitutional right of equal protection and privacy and Pakistan also treats marital rape as rape and is punishable with death by hanging and up to 25 years of jail. The United Nation has also urged the counties to end marital rape.
The very definition of rape, something non-consensual is an act of violence. So, it does not matter if the woman is married or not, if she does not give her consent then it is an act of violence and the woman has the right to say “No”.
India is a developing country and has shown massive growth over the years and it is not impossible for the country to strike down those principles that have been based on old patriarchal norms. Everything has its drawbacks even the good things but it does not mean we should use those drawbacks as an excuse to not implement good things in society. The role of the judiciary is to see whether a law is being used for good or not. Thus, India should criminalize marital rape.
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Author- Anshika Pandey, Student at Sambhunath Institute of Law and Astha Vashistha, Student at Sambhunath Institute of Law.