The most heinous crime against women is Rape, rape is defined in section 375 of IPC in
which it says that rape is against her will and her assent, so the main concern for punishing
the accused for rape is "without the assent" Then what about marital rape which is a untold
story in the Indian household, As per data published by the National Family Health Survey
2015-2016 which receives technical guidance from the Ministry of Health and Family
Welfare, Government of India, 83% of married women between the ages of 15 and 49 who
have suffered sexual abuse cite their current spouses as the perpetrators.
The hard truth that
emerges from this figure is that a large number of crimes against women in India take place
in their respective homes. The issue of marital rape in India is one example of violence
against women where the victim suffers both physically and psychologically at the hands of
somebody close to them. But unfortunately, marital rape is not recognized as a crime under
Indian law, neither has it been criminalized.
Even though IPC doesn't speak about marital
rape explicitly, it mentions that sexual intercourse by a man with his wife is an offense if only
when the wife is below 15 years, what about other categories of married women, why the
marital rape is still taboo? the reason which is said by scholars is because of the notion that
a husband can't be guilty of raping his lawful wife, because a woman has given herself in the
contract of marriage and she can't retract back ( Sir Matthew Hale consent theory).
They
often cite cultural and traditional beliefs, societal norms, and the sanctity of marriage as
reasons to maintain marital rape's non-criminal status. This research paper delves into the
socio-legal dimensions of the criminalization of marital rape in India. It examines the
historical context, legal framework, societal attitudes, and implications of the ongoing
discourse surrounding this contentious issue.
"Just because she said 'I do' doesn't mean you don't have to ask her again"
- Daniel Fernandez
Rape is a serious felony that disregards a person's most essential privileges, including the
right to life and individual freedom. It is a brutal act and a flagrant violation of fundamental
human rights that must be condemned.1 Nuptial assault is a type of assault that is like some
other kind of assault, as it includes undesirable and constrained sexual contact. The only
difference is that it takes place between married people.2 The victim's rights have been
violated, which is a serious crime. Battering rape, sadistic/obsessive rape, or simply using
force are all examples of it.
It is a significant wrongdoing and an infringement of the
casualty's privileges.3 Even though some people may view marriage as socially acceptable
sex, it is not acceptable for one partner to coerce the other into having sex. The expression
"marital assault" is used to portray what happens when one partner is compelled to take part
in a sexual movement despite their desire to the contrary. Although the term may be
contentious among some, it is essential to acknowledge that sexual assault can occur in any
relationship, including marriage.4
This has been cited in several Law Commission reports, debates in Parliament, and judicial
decisions. These reasons range from protecting the sacredness of marriage to the existence of
legal alternatives. The issue of marital rape has also been somewhat ignored by Indian society
and the legislature. However, several landmark judgments show that the Indian judiciary has
been in favour of eliminating marital rape from the country. Many countries have prohibited
and made Marital rape a criminal offence, however, this is not the situation in India yet.5
The
problem of marital rape is not adequately addressed by India's laws. There are no specific
laws in place to deal with marital rape because the IPC does not consider it an offense. Many
activists and organizations have pressed for legal reforms to criminalize marital rape and provide victims with justice because of this.6
It is essential to scrutinize the rape provisions in
the IPC to understand the problem of marital rape in India.
Rape is described in IPC under
section 375 as a man having physical relations with any woman in six different situations.
These include having sex against her will, without her assent, with her assent gained out of
dread, with her consent when the man has reason to believe that he isn't her spouse, with her
assent while intoxicated or intellectually disabled, and without her consent when she is under
the age of sixteen. The section additionally makes sense that entrance is adequate to comprise
the sex important to comprise the offence of assault. Be that as it may, the special case for the
part leaves out marital assault by and large if the spouse isn't under fifteen years old.7
Historical Background
The concept of marital rape is not new but is a viciousness that has been inflicted upon
women since very long time. The exemption of marital rape is a vestige of English common
law.
8 The central theorist of this doctrine of exemption was Sir Matthew Hale, a former Chief
Justice of the Court of King's Bench in England and a Seventeenth century English Jurist,
who propounded that, 'the husband cannot be guilty of rape committed by himself upon his
lawful wife, for by their mutual matrimonial consent and contract the wife hath given up
herself in this kind unto her husband which she cannot retract'9
.
Such an interpretation of
matrimonial consent is extremely mistaken. It implies that a woman who gives her consent to
marriage has no right to live with dignity and no right over her own body. The marital rape
exemption was introduced in our judicial system primarily on account of the 'impossibility' of
a husband raping his lawfully wedded wife.10
Law Commission Reports:
The first report to deal with this issue was the 42nd Law Commission Report. Since the law has been amended at various intervals subsequent to this report, its importance is restricted to understanding the prism through which the Law Commission examined marital rape.
This report made two important suggestions:
First, it noted that in instances where the husband and wife were judicially separated, the exception clause must not apply. Although this was a worthy suggestion, the reasoning given for this was unclear. It stated that "in such a case, the marriage technically exists, and if the husband has sexual intercourse with her against her will or her consent, he cannot be charged with the offense of rape. This does not appear to be right." However, it does not discuss why this is not right. It implies that consent is presumed in situations where the husband and wife live together and cannot be implied when they do not live together.
The second suggestion made in this report was regarding non-consensual sexual intercourse between women aged between twelve and fifteen. It stated that the punishment for such offenses must be put into a separate section and preferably not be termed rape. This was because, before the recent amendments in the IPC, there was a different punishment for rape committed by the husband when the wife was between twelve and fifteen. The defining feature of this suggestion is the hesitancy to classify marital rape as rape, but at best as a lower form of sexual misconduct.
In summary, this report highlighted the presumption of consent that operates when a husband and wife live together and the differentiation between marital rape and other rape, where the former is viewed as less serious.
The Law Commission was directly faced with the validity of the exception clause in the 172nd Law Commission Report. During the consultation rounds, arguments were advanced regarding the validity of the exception clause itself.
It was argued that when other instances of violence by a husband toward a wife were criminalized, there was no reason for rape alone to be shielded from the operation of the law.
The Law Commission disallowed this argument since it feared that criminalization of marital rape would lead to "excessive interference with the institution of marriage."
This article sheds light on the interplay between marital rape and the sanctity of the institution of marriage.
Conclusion
Should marital rape be criminalized? Undeniably, yes. Rape remains rape, regardless of
whether it occurs within a marriage or outside it. Marriage does not imply perpetual consent.
Can such a law be implemented effectively without being misused by wives to harass their
husbands? Unfortunately, no. Indian law has numerous instances where protections for
vulnerable groups (such as the POCSO Act, Prevention of Atrocities Act, Section 498A, etc.)
have been exploited, not as a shield for the weak, but as a weapon for harassment.
The
implementation of a law criminalizing marital rape would likely face similar challenges.
However, it is a vital principle in legal systems worldwide that the potential for
misappropriation should not be a reason to refrain from enacting laws designed to protect ndividuals. I generally adhere to this ideology, and this situation is no exception. Therefore,
I decisively believe that marital rape should be criminalized.
References:
Observation of Supreme Court in Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490.
Anonym, "Marital Rape", retrieved from http://rationalwiki.org/wiki/Marital-rape on March 2nd, 2012 at 15:51.
Anonym, "Marital Rape", retrieved from http://Conservapedia.com/Marital-rape on March 2nd, 2012 at 14:00.
Ibid
Ibid
X, "Violence and the Law in Contemporary India" 29(81) Australian Feminist Studies 255 (2014).
Indian Penal Code, 1860, s. 375.
Martin D. Schwartz, "The Spousal Exemption For Criminal Rape Prosecution", 7 VT. L. Rev. 33 (1982).
Sir Matthew Hale, Historia Placitorum Coronae: The History Of The Pleas Of The Crown.
Saptarshi Mandal, "The Impossibility of Marital Rape: Contestations Around Marriage, Sex, Violence and the Law in Contemporary India" 29(81)
Australian Feminist Studies 255 (2014).
Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at
http://lawcommissionofindia.nic.in/1-50/report42.pdf (last visited on December 15, 2017).
Ibid
Ibid
Ibid
Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at
http://www.lawcommissionofindia.nic.in/rapelaws.htm (last visited on February 6, 2016).
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