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No means No: Discounting Marital Status

Marriage is a commencement of a new family, more than being a physical union it is an emotional union of the spouses. Marriage is contemplated as a union of two souls who promise to enter into an everlasting bond with each other. Whether it is consensual or contractual marriage, marriage is a state of remaining united to a person thereby granting the status of husband and wife. The act of marriage capacitates the parties to all the rights and obligations available to them under law. Sexual intercourse is also considered as a right of the spouses. Howbeit, it is here that one of the major loopholes of law also creeps into. The major dubiety present is whether marriage entitles the husband to have sexual intercourse with their wife against her wish? The question is why women are not protected against such acts of their husband.

Marital Rape
The offence of rape is “exploitation of a woman, without her consent or obtaining of consent by inducing some fear, threat, by a forceful sexual intercourse”. Rape or raptus is when a man has a carnal intercourse with a lady without her consent or knowledge. It is the “ultimate violation of self”. It is the crime against humanity.

Marital Rape, a horrendous crime, is not a concept which can be easily be perceived by anyone. The word “marital” means related to marriage and “rape” means sexual intercourse against the other person’s wish. Comprehending the duo, “marital rape” stands for the sexual intercourse under the veil of marriage but without other person’s consent. It is a very common crime and yet is unreported. Marital Rape is one of the extreme forms of institutionalized violence against married woman. The major reason being non- criminalization of this crime, law assumes that a man has complete right to impose his wishes on his wife whenever he wishes to, irrespective of her consent or will. ‘Sex’ is not an implied right in the marriage. In Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Singapore, Sri Lanka, and Tanzania, marital rape is legal.

Under the Indian Penal Code, Section 375 defines rape but the exception to this section excludes the forcible sexual intercourse by a husband with his wife, thus not amounting to rape. The reason for the same being “to preserve the institution of marriage”. The major controversy that arises here is that is there any point of preserving such a marriage, which is itself being driven by sexual desires, irrespective of other person’s desires. It is a debatable issue. This issue deserves much more attention by law courts and our law making bodies rather than the activists. There is an urgent need for some legal provision to protect the interests of the wives. It is one of the insidious forms of violence against women. Marital Rape is so destructive that it can destroy the marital relationship.

A sexual intercourse against the will of the wife causes not only the physical injuries but also indelibly leaves a scar on the most cherished possession of a woman i.e., her dignity. Law should be developed in such a way that all the victims of non- consensual sexual intercourse be treated and protected at par rather than discriminating on the basis of their marital status. Sex- crimes arise out of physiological necessity of human beings to satisfy their sexual urge.

Historical Background
The viewpoint regarding rape that it cannot take place within wedlock can be traced back to the 17th century when Sir Mathew Hales stated that “husband cannot be guilty of rape committed upon his lawful wife”. R v R , was the first case where marital law exemption reached the House of Lords and it was held that marital law exemption does not exist in the English law. The reason regarding the same was that marriage was taken as “implied consent” for sex and was deemed as a irrevocable consent for having sex with her at any time he wishes to. The Model Penal Code of United States in 1962 specifically stated that man is guilty of rape only when committed with a lady who is not his wife. The process of making it a crime had started in U.S in the 1970 and by 1993, 50 states had criminalized it. In 1993, Declaration of elimination of violence against Women was published which makes marital rape a violation of human rights. Now the present position is that India is one of those 36 countries where marital rape is legal.

Causes For Commission of Marital Rape

Gender Inequality: The main widespread reason for the commission of this offence is the existence of Gender Inequality. Man and woman are the two pillars of the social structure; both deserve to be treated equally. Man shouldn’t exploit woman yet it is happening. Although woman constitutes a major portion of every society, yet in no society the woman enjoy equal status. A woman may be rich or poor, illiterate or literate, modern or conservative yet she is always exploited by her counterpart ‘the man’. Indian society is a male dominated one, and it will remain so, if nothing happens to change it. Women play a crucial role in every aspect of the family affairs. She is entitled to receive protection and support and should be respected equally like men. Recognition should be given for the role that is played by woman.

Economic Dependence on Husband: Another reason for the same is Economic Dependence on Husband. In India, the women are by and large economically backward. This backwardness of the women has been noticed by the judiciary in a number of its pronouncements. The Supreme Court in a number of cases held that right to economic empowerment of women is a human right of women. Lack of economic independence forces many women to stay in violent relationships.

Marriage is viewed as a contract between the parties rendering implied consent for sexual intercourse: The notion prevalent is that marriage is considered as an agreement between the parties to have sexual intercourse without any impediment. According to this rationale, a husband can never rape his own wife and hence there can be no marital rape. A woman has to surrender to the wishes of her husband just because of the marital relationship irrespective of her consent for the same.

Women are considered as mere chattels or property: It is also one of the major foundations for the existence of the marital rape exemption. Women should be treated as a person and it is her right whether to indulge in a sexual intercourse or not.

Social Alienation: Women also do possess fear of social alienation. They carry fear within themselves that if they raise voice against the cruelty being inflicted by their husbands they will be abandoned in the society and there will be none to support them. Also the position of the society is such that none would consider this as an offence or any wrong. People find it difficult to digest that women can be raped by their husbands too. Such attitude of the people is the reason that women fear disclosing the fact of their husband’s violence.

Position In Indian
In India, “Martial Rape” is not given deserved and required attention. No protection is available to women who are forced for sexual intercourse by their husband. The present scenario in India is that the husband need not ask for wife’s permission and is free to impose his will for sex on his wife. It is based upon marital exemption doctrine which provides that a man cannot be criminally made liable for raping his wife. The rape by the so called better halves is not considered problematic as it is considered not to harm reputation of anyone.

The absence of law on the crime of marital rape is an evidence of existence of primitive thinking that a woman is subordinate to her husband and is a property of her husband.

Indian Penal Code And Marital Rape
Section 375 of the Indian Penal Code, 1860 defines the offence of rape, which includes within it a comprehensive definition of the offence and furthermore some explanations and exception. The major flaw in the definition is the “Exception 2” which specifically mentions that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. So clearly, this section excludes from its purview the offence of marital rape. There may have been many justifications for this exclusion but none of it can outweigh the mental agony and physical pain a wife has to undergo. It is an undisputed fact that the non- criminalization of this offence, is one of the major reasons that this offence is committed. So under this exception forceful sexual intercourse can take place with the wife, and the husbands can lawfully escape the punishment.

Moreover until recently, before the coming of a remarkable judgment i.e., Independent Thought v Union of India which has now increased the age under this exception from 15 to 18 years. This has been a welcoming judgment because it is aimed at protecting the interests of a girl child. Previously, a blanket protection was available to a husband who married a girl within the age of 15-18 years from the offence of rape under Sec. 375, Indian Penal Code. But now that has been taken away and such husbands can’t now escape the punishment. The offence of rape is said to be committed irrespective of her consent with a girl who is below 18 years of age because this is age of consent considered in India. In the light of this provision, previous provision was very much violation of Article 14 of the Constitution because it made distinction between married and unmarried girls and also totally failed to protect the interests of the girl child between 15-18 years who is married and with whom rape took place without consent. If in the present scenario, age of Consent is 18 years, there was no reason or justification for not protecting the interests of a girl aged 15- 18 years. The age of consent is the age where one is said to have attained enough maturity to give consent for sexual intercourse and a girl child would not have attained maturity simply on getting married. Such a provision was a mere abuse for a girl child and this judgment of the Apex Court is laudable.

Moreover, the provision legalizing the sex with a girl child was inconsistent with various other laws and the provision under Indian Penal Code was in conflict with Protection of Children from Sexual Offences Act, 2012 and also Prohibition of Child Marriages Act, 2006. Under the PCMA, child marriage is defined as marriage between male below the age of 21 years and female below the age of 18 years and POSCO, child is defined as any person below the age of 18 years. Eventually, a child remains a child no matter married or unmarried. But now this analogy has been removed and it is a hope that soon this provision be amended by the Legislature as well.

Marital Rape Vs. Fundamental Rights
The fundamental rights which are guaranteed to every citizen by the Indian Constitution, 1950 are violated by this provision of law. The fundamental rights that are violated are the rights enriched in the Articles 14, 15 and 21. This section makes a distinction between the rape victims on the basis of marital status i.e., Married and Unmarried Females. The irony of the law is being exposed here, that is the same offence is punishable if committed against an unmarried girl or some third woman but law completely overlooks if the offence is being committed against his wife.

Marital Rape And Equality
Article 14 of the Constitution which provides for equality and equal protection of law justifies classification, if such classification has reasonable nexus with the object sought to be achieved. But now the question that arises is, if Article 14 protects a person against discrimination then why it is being sanctioned under the provisions of Section 375. The equality of status guaranteed by the Constitution of India is only a myth to millions of women for whom life is stalked by various kinds of violence within their homes. Dignity of every woman is alike and should be so preserved by the law. An offence is an offence; the victim ought not to be denied justice based on her marital status and her relationship with the accused. The sole basis for providing punishment should be whether it was consenting act or not. The object of laying down a law on rape is but obvious to protect the women against non-consensual sexual intercourse with them and to punish the offender and by making such a classification, the object sought to be achieved is not being fulfilled in its true sense.
Marriage is a sort of license used by some men to use the wife’s body and escape the punishment imposed for the similar offence if committed on a woman other than a wife. Law should protect the dignity of every woman in such a way that she is not treated as a property. All acts of sex forced on unwilling victims deserved to be treated equally as grave offences deserve same treatment in the eyes of law.

Marital Rape And Privacy
Articles 21 provide the fundamental right to life and personal liberty. This right includes within itself the right to live with human dignity. Also in a recent landmark judgment , the Apex Court has held Right to Privacy is protected by the Article 21 of the Constitution. Privacy is an essential core of the human dignity and even right to be left alone is included within privacy. From this vantage point, it can be inferred that the right to privacy is intruded upon by forceful intercourse against woman and should be protected by the state. The dignity and honor of every female ought to be protected against this harmful crime, so that she may also live her life peacefully. Right to life under Article 21 does not merely include physical existence but has a much wider meaning including within it the right to live with dignity, right to health, livelihood etc. and the marital rape exemption clearly violates the Article 21. Right to life, would, therefore, include all those aspects of life that go on to make life meaningful, complete and worth living.

Marital Rape And Personal Liberty
The meaning of personal liberty was first considered in the case of A.K. Gopalan v State of Madras and was held to mean “nothing more than liberty of physical body.” While in the case of Kharak Singh v State of U.P. , the court held that “Personal Liberty is a compendious term to include within itself all the varieties of rights which go to make up the personal liberty of a man other than those dealt with in the several clauses of article 19(1).” Now the horizon of the term “Personal Liberty” has been expanded to include within its ambit the “personal dignity”. Article 21 ensures the right of the women to be treated with decency and proper dignity.

The concept of dignity is covered under the fundamental right under Article 21 and also article 1 of the Universal Declaration of Human Rights specifies “All human beings are born free and equal in dignity and rights. In case of The Chairman, Railway Board v Chandrima Das Supreme Court again held that the offence of rape with any women violates her right to life and her right to live with human dignity as she is the victim of rape.

Protection of Women From Domestic Violence Act, 2005
This act defined domestic violence for the first time. It obtains its rational from the Article 15(3) which allows laws to be made in favor of women. This law was enacted in view of the rights under Article 14, 15 and 21 of the Constitution so as to provide civil remedy to women from acts of domestic violence against them and also to prevent their occurrence. The definition of “domestic violence” under the act is very wide and includes within its scope verbal, emotional, verbal, physical and sexual abuse. The orders which can be passed under the act include Protection orders (to stop violence), Residence orders, Compensation Orders, Monetary reliefs and Custody orders. So the act merely provides a civil remedy and no magistrate has the power to criminalize the offender husband under this law.

A mere civil remedy would not suffice in this case, what is required is that the acts of such husbands be criminalized but under Indian Penal Code as well as under this act, nowhere has this act been made a crime. It is very unreasonable to treat marital rape as a civil wrong and not as a crime.

Justification For Non Criminalization of Marital Rape
Not as serious as Non-Marital Rape: It is a general view among all that marital rape is not much grave as the non-marital rape. But according to a recent National Family Health survey by Union Health Ministry, among married women (15-49 age) who were victims of sexual violence, over 83% reported their current husband and 9% report a former husband as the perpetrators. As reported by women, was that their husband used physical force to have sexual intercourse when they did not want to (5.4%). About 4% reported that their husband forced them with threats or in other ways to perform sexual acts they did not want to, and 3% reported that their husband forced them to perform other sexual acts they did not want to,” said the survey report on the basis of interviews with over 628,900 households.

More chances of being Misused : It is a general justification provided in most of cases that the legal provisions on marital rape if laid down would be misused and it would be inappropriate to lay down a law on this point. But merely because a provision can be misused can’t be a defence for non-criminalization of marital rape. Although there are chances of getting false complaints on the matter and innocent husbands can be booked and put to jail, but this should not be an argument whether this offence should be criminalized or not.

Marriage is a sacred institution: Marriage is considered sacred and eternal. It is considered that sexual intercourse is a major need in wedlock and many reasons due to which marital rape is not criminalized is to protect the institution of marriage. But it is also an admitted fact, that when a husband rapes his wife the marriage is already destroyed. The law cannot enforce forced cohabitation.

Difficult to Prove: Marital Rape is considered as very onerous to prove. Indeed, a woman will have to prove that sexual intercourse took place with her without her consent under such and such circumstances. Although all this would be very difficult and depressing for a woman to put forward in the court premises yet the same is the procedure in non-marital rape cases. So such justifications should be clearly being avoided.

Marital Rape Should Be Criminalized:

Focusing upon this horrendous crime, one question that strikes the mind is that why marital rape is yet not considered a crime in a country, the Constitution of which specifically provides for gender equality. Each violence act in the marriage should be recognized and penalized so as to create a fear among the offenders for the consequences of their acts. Primary attention should be given to the fact whether the violence was committed or not rather than on the fact of the relationship between the parties. India is still struck in old age traditions and it is hard for it to admit that marital rape can take place. There is a dire need of a law which not only recognizes marital rape as an offence but also provides a strict punishment for the same. There is no duty bound relationship between a husband and wife where the wife needs to surrender for the wishes of her husband and there should be some legal provisions protecting the interests of such women. It is also admitted that law alone cannot change the position but can somehow contribute to reduce such violent acts. But unfortunately, marital rape is legal. It is behind those closed doors that she is raped, when rape is itself considered an offence against humanity then why such females are prevented from knocking the doors of court. The way forward is to awaken the judiciary through writs under Art.32 or by public interests litigation to recognize this as a crime.

The recommendations were given by the Justice Verma Committee which was formed to give suggestions for the quicker trial and enhanced punishment for offenders of sexual assault against women. It was suggested by the committee that the any non- consensual act of sexual intercourse should be covered under the definition of rape and also the marital rape exception should be removed. It was contended that there should be no distinction and differentiation on the basis of that whether crime was committed within the marriage or outside it. Also it was recommended that death penalty should be inflicted upon the rapists.

Punishment Should Be Prescribed:
The sole basis of classifying an offence as rape should be “whether it is done without consent or not” rather than making distinctions on the basis of “marital status”. So what would serve the purpose is that same punishment should be provided under the law for the offence of rape whether committed by the husband or the stranger. “Victim is victim, no matter her marital status.” So the law should not fail on this point. In addition to criminalizing the offence, similar punishment should be provided to the offender. This would be very much beneficial to such victims as it would have the deterring effect.

It Should Be Made A Ground For Divorce:
The offence of marital rape should be specifically made a ground for divorce. Women are the victim when spousal rape takes place against her, and there should be some recourse made available to her to protect her interests. The pressing need is to amend the divorce laws so as to widen its scope to include forceful sexual intercourse as a ground for separating from the spouse.

“When a lady is raped by stranger, she has to forcibly with those bad memories but when a lady is raped by her husband; she has to forcibly live with the rapist.”

Although, it is an admitted fact that such act on the part of husband could be covered under the ground of “cruelty” but still there is a need that marital rape should be made a separate ground and also it would beneficial for the victims to obtain compensation for all the physical injuries and mental stress they have faced and also to make the legal position clear.

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