MARITAL RAPE

MARITAL RAPE - HEINOUS YET 

NON-CRIMINALIZED OFFENCE

ABSTRACT

Marriage is the intimate union partnership of a man and a woman. It is a natural as well as sacred institution because of divinity in its roots. The free consent of spouses makes a marriage. Different periods of time and various traditions have dissimilar history when it comes to women. Women are being used to objectify themselves even if we have reached a good level of empowerment. In earlier times concept of equality for women played no greater role as they were always being ignored by men, family, society other women too etc. Women face dual responsibility such as religion and marriage. This paper attempts to cover different aspects of marital rape in India and protection of spouses.

INTRODUCTION

Section 375 of the Indian Penal Code, 1860 defines Rape as- all activities of sexual assault involving non-consensual intercourse with a woman. It is unlawful sex without the consent. consent term is important because we live in a democracy where everybody has equal rights to choose, do whatsoever he wants to.

Marital Rape is hotly debated and is decriminalized in India. India is one of  the 36 countries which still haven’t criminalized marital rape. According to the current law, wife is presumed to have sexual intercourse with her husband after entering into marital relations. Marital rape is the act of  having sexual intercourse with one’s spouse without the spouse’s consent. Lack of consent is the important element. It is more widely experienced and tolerated by women. Marital rape is series of events arising out of violent domestic relations. There is a reluctance to criminalize  and prosecute marital rape has been attributed to traditional views of marriage.

One of the origins is a rule that a husband cannot be charged with rape of his wife. This view was also laid down by Sir Matthew Hale in history of peas of the crown - “the husband can’t be held guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”

Marital rape too is a form of rape it just hide under the cover of patriarchal domination. Contemporary leaders support the victims of marital rape as it is also a crime against the society. It disturbs the sanctity of marriage where both the spouses sworn to die for each other or live with each other. It is largely neglected and denies a woman her bodily dignity. Woman are still considered as property of her husband and yet she is she is unable to express her consent.

These views of marriage and sexuality started in western countries since 1960’s and 70’s. A concept of second-wave feminism was spreaded to let women realize their self-determination.  Erstwhile Egypt did give right to women but were not allowed to practice it. Historically, it was observed that marital rape was treated as an impossibility as the spouses have conjugal rights to sexual intercourse.

VIOLATION OF ARTICLE 14

Although the Indian constitution provides for equality to each and every person, criminal law discriminates against female victims who have been raped by their own husbands. The exception to definition of rape was based on the DOCTRINE OF COVERTURE. Doctrine of coverture is a legal doctrine which says woman’s rights and obligations were subsumed by those of her husband.

RIGHT TO LIVE WITH HUMAN DIGNITY

In The Chairman, Railway Board v. Chandrima Das, the SC held that the offence of RAPE is crime against society as a whole. In various other cases the SC also held that rape abuses and disturbs the right to live with dignity of the victim.

RIGHT TO SEXUAL PRIVACY

Article 21 also incorporates right to sit unbothered and at peace. In Vishakha v. State of Rajasthan, right to privacy in working environments was extended. In State of Maharashtra v. Madhukar Narayan, it was held that every woman has a right to sexual privacy which is not open to everybody out there.

THEORIES OF MARITAL RAPE

1.The Feminist Theory:

This theory considered marital rape in the hands of patriarchy. Men had full control over women.

2. The Social Constructionism Theory: 

This theory observed men dominated society in law making process and politics. Men to retain long reign of power over their wives.

3. The Sex-Role Socialization Theory:

This theory tells that men are the major perpetrators of sexual entertainment. It considered marital rape as expression of traditional perception of sex roles.

IMPACTS ON WOMEN

- Fear and anxiety

- Clinical depression

- Low confidence and esteem

- Self hatred

INTERNATIONAL PERSPECTIVE

India is a party to CEDAW i.e Convention on the elimination of all forms of discrimination against women. Article 2(a) of the convention encompass marital rape as violence against women. Parties to CEDAW are obliged to protect women and combat violence against them. Marital rape is experienced by 10%  to 14% of all married women and 50% of battered woman (person experiencing abuses). In Commonwealth v. Fogarty, it was held that married woman could not be raped and this was accepted by the American legal system in 1857.

In 1985 Finklehor and Yllo divided states into three categories-

1. Absolute exemption- States that don’t have sanctioning laws and thus making marital rape legal. This doesn’t exist in the US now.

2. Partial exemption- states allowing  marital rape in only certain cases.

3. No exemption

INDIA’S PRESENT SCENARIO

Marital rape has been covered by the Domestic Violence Act, 2005 which prohibits any kind of sexual abuse in live-in relationship or marriage. It is still a distant dream in India to criminalize Marital rape. However, Section 376 (B) of Indian Penal Code, 1860 punishes a man for forced sex without the consent of judicially separated wife. In a pending case before Delhi High Court RIT Foundation v. UOI, it was observed that criminalizing marital rape would destabilize the very root of marriage and will become easy tool to harass husbands.

It was disappointing that the Narendra Modi govt. took stand on it. It is disturbing that the Centre could not seemed to have concerned about it but emphasized on other issues. Marital rape is not less brutal than triple talaq or polygamy. Justice Verma Committee in Jyoti Singh Gang rape Case, 2012 strongly recommended to remove exception of marital rape and to strengthen anti-rape laws in India. But these suggestions failed to incorporate in the Criminal Law Amendment Act, 2013.

In 2017 a recent judgment by the Gujrat High Court in Nimesh Bharat Bhai Desai v. State Of Gujrat, stated that making wife rape illegal will remove the destructive attitudes that promote marital rape. In Independent Thought v. UOI and Anr., 2017, criminalized sexual intercourse with a minor wife aged 15-18 years of age but there was not any mention of marital rape of  wife of above 18 years of age.

CONCLUSION

It is time that the Indian jurisprudence should understand the inhumane nature of rape laws. The rights of married and unmarried woman must be of utmost importance. It is well settled that right to sexual privacy envisaged under article 21 is not merely a right to exist. Exception 2 of Section 375 fails to deter husbands from engaging in violent activities like forced sex and it clearly violates Article 14 and 21 of the Indian Constitution.

- Akshima Pandey

New Law College, Bharati Vidyapeeth, Pune