Criminalisation Of Marital Rape In India
"'No ka matlab , No hota hai. Use bolne wali ladki koi parichit ho, friend ho,
girlfriend ho, koi sex worker ho ya apki apni biwi hi kyuna ho. 'No' means 'No'.
And when someone says so you STOP!"- A monologue from the movie "PINK".
The Indian legislation doesn't criminalize marital rape and doesn't accept it as a crime by a husband to rape his wife, and the reasons differ from safeguarding the sanctity of the institution of marriage to supplementary prevailing alternative remedies in law. But it does violate women's fundamental rights such as the right to privacy, equality, freedom of speech and expression, and above all, the right to life and personal liberty. And this article will discuss marital rape and why it should be criminalized in India.
Introduction
Rape is an offence against women. The dictionary definition of rape is "Crime of sexual intercourse without the victim's consent, often involving the use of force." Section 375 of the Indian Penal Code defines rape and considers it as an offence. Whereas marital rape is "rape committed by the person to whom the victim is married, without her consent" and exception of section 375 of the IPC, 1860 states that sexual intercourse or sexual act by a man with his wife, the wife not being under fifteen years of age, is not rape. And Section 198 (6) of the Code of Criminal Procedure states that there should be no offence taken under section 376 of the IPC,1860 where such offence comprises of sexual intercourse by a man with his wife, the wife NOT being under fifteen years of age and if more than one year has elapsed from the date of commission of the offence
currently merely 52 countries have comprehended marital rape as a crime. India is one of those countries that have still not criminalized marital rape. However, there are several petitions in the Supreme court and High Court challenging the constitutionality of this exception of section 375 of the Indian Penal Code.
While the law doesn't criminalize marital rape, a specific form of marital rape is criminalized, that is non-consensual sexual intercourse when the wife and husband are living separately on account of judicial separation or otherwise. Section 376 B of the IPC states: Whoever has sexual intercourse with his wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than 2 years but may extend to 7 years, and shall also be liable to fine.
The doctrine of merging women's identity with husbands is the base idea of exception 2 of Section 375 IPC. The roots of this doctrine are found in British colonial rule in India. The exception to section 375 of IPC was drafted based on English law that did not recognize men and women as equal. But times have changed and now Indian law treats husband and wife as separate and independent legal entities. And to safeguard women from sexual harassment and violence "The Protection of women from Domestic Violence Act 2005 "and " the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act 2013" passed by the Parliament.
Exception 2 disregards Article 14 by differentiating against married women by withholding them equal protection from rape and harassment. It also differentiates between married and unmarried women. In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwer Ali Sarkar, the Hon'ble Supreme Court held that any classification under Article 14 of the Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective.
Exception 2 excuses the husband from such is contradictory to the objective. It is tougher for a married woman than an unmarried woman to escape from vicious conditions because they are bound, financially and legally providing an opportunity to the husband to enter into a violent sexual relationship
Article 21 of the Constitution furnishes the Right to Life and Personal Liberty. It states, no person shall be deprived of his life and personal liberty except according to procedure established by law. Which is interpreted in a wider understanding. The Hon'ble Supreme Court in various cases like Maneka Gandhi v. Union of India, A.K. Gopalan v. Union of India, Kharak Singh v. the State of U.P., etc. has expanded the scope of Article 21.
The Supreme Court has held that life under Article 21 is restricted to mere animal existence but it is more to that. In the case of justice K.S. Puttuswamy (Red.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right to all citizens and held, the right to privacy encompasses descriptions of privacy reflected by a capacity to make intimate decisions primarily consisting of one's sexual or procreative nature and decision in respect of intimate relations.
The courts in recent years have acknowledged the right to abstain from forceful sexual intercourse and undesirable sexual activity by the husband under the right to life. The Punjab and Haryana High Court in Surjit Singh Thind v. Kanwaljit Kaur held that allowing medical examination of a woman for her virginity would amount to a violation of her right to privacy and personal liberty enshrined under Article 21. In the case of State of Karnataka v. Krishnappa, the Hon'ble Supreme Court held that sexual violence intrusion the right to privacy and sanctity of a female. It also held that non-consensual sexual intercourse amounts to physical and sexual violence. But in another judgment, the scope of article 21 expanded.
In Suchitra Srivastava v. Chandigarh Administration, the Supreme Court held that personal liberty in Article 21 includes the right to make a reproductive choice that is to produce a child or not. The rulings of the cases didn't differentiate between married or unmarried women. it is not associated with their marital status. In view, women's right to privacy, dignity, and bodily integrity should be respected. Thus, it is a fundamental right of a woman to have sexual relations with her husband and forced cohabitation is a violation of her fundamental right.
Exception 2 of Section 375 violates Article 21. It violates the right to live with human dignity, right to privacy, right to a healthy life, right to choice of making sexual relations or to participate in sexual activity. Due to the existence of exception 2, the law weakens to prevent the husband from making forceful sexual relations.
WHY MARITAL RAPE SHOULD BE CRIMINALIZED?
It may be contended that the court judgments defining the parameters of rape, can also be used to facilitate the debate to criminalize marital rape. the 2 major reasons for not criminalizing are, proving that rape has happened would be problematic and it affects the divine institution of marriage. As to the former point, several court judgments in the late 20th century have reduced the burden on rape victims to prove their assault. As that is the case, there is no reason why similar liberty should not be applied to marital rape, making the crime easier to prove.
The aspect of marital sanctity in the 21st century has evolved and the application of it as a reason to not criminalize marital rape should be challenged. The major question analysed by the courts in cases of rape is whether the woman agreed to have sex. In the case of Kernel Singh v. the State of Madhya Pradesh, the Court held, the woman should not be considered an associate of the crime, rather a victim. As a victim, her testimony should not be contemplated with the same amount of suspicion as you would the offenders.
At present, rape is one of the few crimes in which the burden of proof lies with the defendant to prove the woman did, in fact, consent to the sexual act. As this burden has shifted from all unmarried rape victims, It is just that the same be applied to married victims as well. As far as proving rape, the burden should now fall on her husband. One of the problems that would still exist for all rape victims, even when the burden of proof falls on the husband, is that of believing the woman's testimony over that of her husband.
The principle that judges may use a woman's past sexual history or her moral character in determining the veracity of her testimony was overruled in Haryana V Prem Chand. As this is the case for rape victims, the same should be allowed for marital rape victims. Based on this principle, the idea that married women cannot be raped because they have had a sexual history with their husbands is no longer valid. Regardless of a woman's past or her character, rape must be determined based on the particular facts of the incident.
Additionally, the argument that a married woman's testimony cannot be relied upon because it may be contaminated with malice is wholly unreasonable. The rape trial procedure, harsh cross-examination, and the shame of publically confessing to having been raped is an ordeal that most women wouldn't willingly put themselves through. The second issue faced by marital rape victims is that they generally do not have injuries showing their resistance. The reason for this is that they feel overpowered by their husband and submit to his will without restraining. In the past, courts had sanctioned that injuries were a significant part of determining whether or not the woman had consented.
In fact, in the Mathura case, the fact that she didn't have any injuries was regarded as one of the explicit pieces of evidence that she did not put up a fight and therefore consented to sex. However, the Supreme Court has changed its opinion and has held that injuries are not mandatory signs of resistance (The Mathura Rape Case) It was ruled that in the case of the accused being a person in uniform, a lack of resistance could not be constituted sexual consent by the woman.
Though this case was specifically dealing with police officers, the reasoning used was that the officer had so much authority over the woman as to make her physical resistance not necessary. The same principle can be used to argue that in Indian society, the dominance of the husband in marriage is so overwhelming as to make the wife's physical resistance.
Lastly, though the formerly prohibitive issues of testimonial veracity and a lack of injury may have changed little in the favour of marital rape victims, the underlying issue of proving non-consensual sex remains difficult. However, this issue is not limited only to married women. It is often the case even in rape, the presence of consent is difficult to prove one way or another. It is somewhat more of an issue with married women because some tend to "consent" or not resist due to socio-economic conditions. Precisely, they submit to the will of their husbands because the women are not only physically weaker but feel themselves to be weaker in a general sense. This thought is perpetuated by the social circumstances in most rural villages in India.
Like rape victims, married women also submitted to protect themselves from physical violence. However, this is found to be even more relevant in the case of married women because they have usually been subjected to domestic violence in the past, and know what their husbands are capable of doing. Lastly, there is an inclination for married women to "consent" to having sex because they feel that they deserve it. They feel accountable for whatever ill-temper or marital conflict that may have instigated the rape. They also feel that it is their responsibility to have sex with their husbands even when they do not want to.
Are not a valid explanation from the legal authority to not criminalise marital rape
Conclusion
"I measure the progress of a community by the degree of progress which women have achieved."-- Dr Br. Ambedkar
The criminalization of marital rape is the necessity of the hour. We are a tremendously cultured and conventional society. This ceases the want to talk about the taboo. Turning a blind eye towards these taboos won't solve the problem. Marital rape cannot be put in force until the citizens of the nation are familiar with the same. Awareness of marital rape would have to be made to attain the apex of justice.
Several organizations have been committed towards the same but until the citizens do not bring the attention of the judiciary to how grave the issue already is, no big steps will be taken. Studies show that 70 per cent of women have experienced physical and sexual violence from their partner in their lifetime. This goes against what our forefathers fought for, which is Fundamental Rights. India needs to decide on the furtherance of marital rape.
In a land where goddesses are worshipped, India can certainly not afford to stay silent on this issue any further. Doing so would be a gross miscarriage of justice.
End Notes:
The Indian legislation doesn't criminalize marital rape and doesn't accept it as a crime by a husband to rape his wife, and the reasons differ from safeguarding the sanctity of the institution of marriage to supplementary prevailing alternative remedies in law. But it does violate women's fundamental rights such as the right to privacy, equality, freedom of speech and expression, and above all, the right to life and personal liberty. And this article will discuss marital rape and why it should be criminalized in India.
Introduction
Rape is an offence against women. The dictionary definition of rape is "Crime of sexual intercourse without the victim's consent, often involving the use of force." Section 375 of the Indian Penal Code defines rape and considers it as an offence. Whereas marital rape is "rape committed by the person to whom the victim is married, without her consent" and exception of section 375 of the IPC, 1860 states that sexual intercourse or sexual act by a man with his wife, the wife not being under fifteen years of age, is not rape. And Section 198 (6) of the Code of Criminal Procedure states that there should be no offence taken under section 376 of the IPC,1860 where such offence comprises of sexual intercourse by a man with his wife, the wife NOT being under fifteen years of age and if more than one year has elapsed from the date of commission of the offence
currently merely 52 countries have comprehended marital rape as a crime. India is one of those countries that have still not criminalized marital rape. However, there are several petitions in the Supreme court and High Court challenging the constitutionality of this exception of section 375 of the Indian Penal Code.
The Difference Between Rape And Marital Rape:
- Rape is a form of sexual assault that implicates sexual intercourse or other forms of sexual penetration carried out against a woman without consent.
- Marital rape/spousal rape is the act of sexual intercourse with one's wife without consent.
While the law doesn't criminalize marital rape, a specific form of marital rape is criminalized, that is non-consensual sexual intercourse when the wife and husband are living separately on account of judicial separation or otherwise. Section 376 B of the IPC states: Whoever has sexual intercourse with his wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than 2 years but may extend to 7 years, and shall also be liable to fine.
Types Of Marital Rape:
3 kinds of marital rape are recognized by legal scholars as generally prevailing in society:- Battering rape – occurs when physical and sexual violence occurs together. Victims undergo physical and sexual violence at the exact time or one may occur after another. This rape may happen after physical violence as an attempt to "make up."
- Force-only rape – this rape happens when physical violence is not utilized. As with all rape, this type of rape is provoked by a desire to put out strength and control over another person. This longing manifests in performing sex as an entitlement to one party over another.
- Obsessive/Sadistic rape – rape that involves torment or perverse sexual acts. This sort of marital rape tends to be harsh and result in physical damage.
Aftermaths Of Marital Rape:
It is a myth that marital rape is less critical than other aspects of sexual violence. Numerous physical and emotional effects may accompany marital rape such as:- Physical impacts comprise damages to the vagina and anal, injuries, soreness, bruising, torn muscle, etc.
- Women who are beaten and raped oftentimes suffer from broken bones, black eyes, bloody nose, and knife scars.
- Gynaecological consequences comprise vaginal elongation, pelvic inflammation, unwanted pregnancies, miscarriage, stillbirth, bladder afflictions, sexually transmitted diseases, HIV, and infertility.
- Short period psychological impacts comprise PTSD, anxiety, intense fear, depression, and suicidal thoughts.
- Long term psychological impacts comprise disarrayed sleeping, messed eating, depression, intimacy dilemmas, adverse self-images, and sexual dysfunction.
Marital Rape And Violation Of The Constitutional Provisions:
Noncriminal marital rape leads to the violation of the Right to Equality (Article 14) which ensures the state shall not deny to any person equality before the law and equal protection of the law. But the criminal law of India discriminates against female victims who have been raped by their husbands which violates this Constitutional provision. When IPC was drafted, married women weren't deemed to be independent entities; rather, she was considered to be chattel of her husband. Therefore, she didn't have many rights as an independent entity.The doctrine of merging women's identity with husbands is the base idea of exception 2 of Section 375 IPC. The roots of this doctrine are found in British colonial rule in India. The exception to section 375 of IPC was drafted based on English law that did not recognize men and women as equal. But times have changed and now Indian law treats husband and wife as separate and independent legal entities. And to safeguard women from sexual harassment and violence "The Protection of women from Domestic Violence Act 2005 "and " the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act 2013" passed by the Parliament.
Exception 2 disregards Article 14 by differentiating against married women by withholding them equal protection from rape and harassment. It also differentiates between married and unmarried women. In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwer Ali Sarkar, the Hon'ble Supreme Court held that any classification under Article 14 of the Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective.
Exception 2 excuses the husband from such is contradictory to the objective. It is tougher for a married woman than an unmarried woman to escape from vicious conditions because they are bound, financially and legally providing an opportunity to the husband to enter into a violent sexual relationship
Article 21 of the Constitution furnishes the Right to Life and Personal Liberty. It states, no person shall be deprived of his life and personal liberty except according to procedure established by law. Which is interpreted in a wider understanding. The Hon'ble Supreme Court in various cases like Maneka Gandhi v. Union of India, A.K. Gopalan v. Union of India, Kharak Singh v. the State of U.P., etc. has expanded the scope of Article 21.
The Supreme Court has held that life under Article 21 is restricted to mere animal existence but it is more to that. In the case of justice K.S. Puttuswamy (Red.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right to all citizens and held, the right to privacy encompasses descriptions of privacy reflected by a capacity to make intimate decisions primarily consisting of one's sexual or procreative nature and decision in respect of intimate relations.
The courts in recent years have acknowledged the right to abstain from forceful sexual intercourse and undesirable sexual activity by the husband under the right to life. The Punjab and Haryana High Court in Surjit Singh Thind v. Kanwaljit Kaur held that allowing medical examination of a woman for her virginity would amount to a violation of her right to privacy and personal liberty enshrined under Article 21. In the case of State of Karnataka v. Krishnappa, the Hon'ble Supreme Court held that sexual violence intrusion the right to privacy and sanctity of a female. It also held that non-consensual sexual intercourse amounts to physical and sexual violence. But in another judgment, the scope of article 21 expanded.
In Suchitra Srivastava v. Chandigarh Administration, the Supreme Court held that personal liberty in Article 21 includes the right to make a reproductive choice that is to produce a child or not. The rulings of the cases didn't differentiate between married or unmarried women. it is not associated with their marital status. In view, women's right to privacy, dignity, and bodily integrity should be respected. Thus, it is a fundamental right of a woman to have sexual relations with her husband and forced cohabitation is a violation of her fundamental right.
Exception 2 of Section 375 violates Article 21. It violates the right to live with human dignity, right to privacy, right to a healthy life, right to choice of making sexual relations or to participate in sexual activity. Due to the existence of exception 2, the law weakens to prevent the husband from making forceful sexual relations.
WHY MARITAL RAPE SHOULD BE CRIMINALIZED?
It may be contended that the court judgments defining the parameters of rape, can also be used to facilitate the debate to criminalize marital rape. the 2 major reasons for not criminalizing are, proving that rape has happened would be problematic and it affects the divine institution of marriage. As to the former point, several court judgments in the late 20th century have reduced the burden on rape victims to prove their assault. As that is the case, there is no reason why similar liberty should not be applied to marital rape, making the crime easier to prove.
The aspect of marital sanctity in the 21st century has evolved and the application of it as a reason to not criminalize marital rape should be challenged. The major question analysed by the courts in cases of rape is whether the woman agreed to have sex. In the case of Kernel Singh v. the State of Madhya Pradesh, the Court held, the woman should not be considered an associate of the crime, rather a victim. As a victim, her testimony should not be contemplated with the same amount of suspicion as you would the offenders.
At present, rape is one of the few crimes in which the burden of proof lies with the defendant to prove the woman did, in fact, consent to the sexual act. As this burden has shifted from all unmarried rape victims, It is just that the same be applied to married victims as well. As far as proving rape, the burden should now fall on her husband. One of the problems that would still exist for all rape victims, even when the burden of proof falls on the husband, is that of believing the woman's testimony over that of her husband.
The principle that judges may use a woman's past sexual history or her moral character in determining the veracity of her testimony was overruled in Haryana V Prem Chand. As this is the case for rape victims, the same should be allowed for marital rape victims. Based on this principle, the idea that married women cannot be raped because they have had a sexual history with their husbands is no longer valid. Regardless of a woman's past or her character, rape must be determined based on the particular facts of the incident.
Additionally, the argument that a married woman's testimony cannot be relied upon because it may be contaminated with malice is wholly unreasonable. The rape trial procedure, harsh cross-examination, and the shame of publically confessing to having been raped is an ordeal that most women wouldn't willingly put themselves through. The second issue faced by marital rape victims is that they generally do not have injuries showing their resistance. The reason for this is that they feel overpowered by their husband and submit to his will without restraining. In the past, courts had sanctioned that injuries were a significant part of determining whether or not the woman had consented.
In fact, in the Mathura case, the fact that she didn't have any injuries was regarded as one of the explicit pieces of evidence that she did not put up a fight and therefore consented to sex. However, the Supreme Court has changed its opinion and has held that injuries are not mandatory signs of resistance (The Mathura Rape Case) It was ruled that in the case of the accused being a person in uniform, a lack of resistance could not be constituted sexual consent by the woman.
Though this case was specifically dealing with police officers, the reasoning used was that the officer had so much authority over the woman as to make her physical resistance not necessary. The same principle can be used to argue that in Indian society, the dominance of the husband in marriage is so overwhelming as to make the wife's physical resistance.
Lastly, though the formerly prohibitive issues of testimonial veracity and a lack of injury may have changed little in the favour of marital rape victims, the underlying issue of proving non-consensual sex remains difficult. However, this issue is not limited only to married women. It is often the case even in rape, the presence of consent is difficult to prove one way or another. It is somewhat more of an issue with married women because some tend to "consent" or not resist due to socio-economic conditions. Precisely, they submit to the will of their husbands because the women are not only physically weaker but feel themselves to be weaker in a general sense. This thought is perpetuated by the social circumstances in most rural villages in India.
Like rape victims, married women also submitted to protect themselves from physical violence. However, this is found to be even more relevant in the case of married women because they have usually been subjected to domestic violence in the past, and know what their husbands are capable of doing. Lastly, there is an inclination for married women to "consent" to having sex because they feel that they deserve it. They feel accountable for whatever ill-temper or marital conflict that may have instigated the rape. They also feel that it is their responsibility to have sex with their husbands even when they do not want to.
Are not a valid explanation from the legal authority to not criminalise marital rape
Conclusion
"I measure the progress of a community by the degree of progress which women have achieved."-- Dr Br. Ambedkar
The criminalization of marital rape is the necessity of the hour. We are a tremendously cultured and conventional society. This ceases the want to talk about the taboo. Turning a blind eye towards these taboos won't solve the problem. Marital rape cannot be put in force until the citizens of the nation are familiar with the same. Awareness of marital rape would have to be made to attain the apex of justice.
Several organizations have been committed towards the same but until the citizens do not bring the attention of the judiciary to how grave the issue already is, no big steps will be taken. Studies show that 70 per cent of women have experienced physical and sexual violence from their partner in their lifetime. This goes against what our forefathers fought for, which is Fundamental Rights. India needs to decide on the furtherance of marital rape.
In a land where goddesses are worshipped, India can certainly not afford to stay silent on this issue any further. Doing so would be a gross miscarriage of justice.
End Notes:
- https://www.scconline.com/blog/post/tag/marital-rape/
- http://nujslawreview.org/wp-content/uploads/2018/01/11-Raveena-and-Pradyumna.pdf
- https://martinslibrary.blogspot.com/2014/09/rape-marital-rape-types-of-marital-rape.html
- https://en.wikipedia.org/wiki/Marital_rape
- https://www.legalserviceindia.com/legal/article-2872-criminalization-of-marital-rape-in-india.html
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