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Marital Rape Laws: An International overview

The debate over Marital Rape has been a topic of heated discussion over the last few years. The controversial exception 2 of Article 375 of the Indian Penal Code is currently being debated over in the Delhi High Court. The exception has been challenged by RIT Foundation, All India Democratic Women Association and two individuals. Opposing the striking down of this exception are the Delhi government, NGO Hridaya Foundation and Amit Lakhani and Ritwik Bisaria of Men Welfare Trust.

Exception 2 of section 375 of the Indian Penal Code states that "Sexual intercourse or sexual acts by a man with his own wife not being under fifteen years of age, is not rape" *
This exception explicitly makes rape on one's wife, above the age of fifteen permissible.

The primary argument for the criminalization of marital rape is that rape committed on a woman is rape, an offence red in teeth and claw. Discrimination between a married woman and an unmarried one does not stand any reasonable nexus and violates the fundamental rights granted to the citizens under Article 14 (Right to Equality) and Article 21 ( Right to Life) of the Indian Constitution

Men's rights activists opine that the criminalization of marital rape may serve as a ground for many women to maliciously lodge a false complaint against their husbands. They argue that marital rape should not be criminalised as it will serve as a tool for the wife to harass her husband. The male victim will not have enough evidence to prove his innocence as the relation between a wife and her husband is essentially sexual in nature and the prime testimony of the crime will be the wife's complaint.

However it has been rightly pointed out by those in favour of the criminalization of marital rape that every law has the scope of being misused, and if the legislature were to stop making laws fearing their misuse then no law would have been enacted to protect the liberty of the citizen. India already has existing laws against perjury that can be invoked to prevent the law from becoming a tool in the hands of miscreants.

As per reports, Marital Rape is not a crime in only 32 countries of the world. This list includes names like the Republic of Congo, Bangladesh, Pakistan and India. Despite being a progressive country, India has still retained archaic colonial laws. Interestingly England criminalised Marital Rape in 1994.

In this article, we shall analyse the international laws that govern marital rape in various countries and international convention

International Background and Origin

The Implied Consent Theory of Sir Hale was laid in Chief Justice Sir Mathew Hale's The History of the Pleas of the Crown published in 1736. It said, "The husband cannot be guilty of a 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." This theory paved its way not just into the common law system of Britain but also into the legal system of all its colonies.

The Doctrine of Coverture is another principle found in the common law system that provided support to the Implied Consent Theory. According to this doctrine, the legal rights of a woman were subsumed by her husband's upon marriage. This doctrine arise from the legal fiction that the wife and husband were the same people.

A married woman's legal status was feme covert while an unmarried woman's status was feme sole. While an unmarried woman had the right to make contracts on her property, a married woman didn't.

The Doctrine of Coverture was dominant in England until it received backlash in the mid-19th century by the wave of the feminist movement. It was regarded as oppressive, hindering a woman from exercising her legal and financial rights

Marital rape was not considered to be a crime in Britain until the landmark judgement in 1991 of R vs R. After multiple appeals the House of Lords finally ruled against marital rape unanimously, stating that "Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances."

Criminalisation of Marital Rape in Other Countries

Poland was the first country to explicitly criminalise marital rape in 1932. Australia, under the influence of the second wave of feminism in 1976 was the first common law country to pass reforms and criminalise marital rape.

Since the 1980's several common law countries have criminalised marital rape like South Africa, Ireland, Israel, Ghana etc. Over the past two decades, several Scandinavian countries and the Communist bloc have followed the suit.

In New York, the Court of Appeal struck down the exception of marital immunity from the Code in 1984. All 50 states of the United States have made marital rape a crime
In 2002 Nepal criminalised marital rape. The Supreme Court held that the exception of marital rape went against the constitutional right of equal protection before the law and the right to privacy of an individual.

International Convention regarding Marital Rape

In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested that India should end marital impunity. Article 1 of CEDAW defines "Discrimination of Women" as "any distinction...made based on sex which has the effect of impairing...the exercise by women, irrespective of their marital status...of human rights and fundamental freedoms in, cultural, civil or any other field".

The marital impunity conferred under the Indian Penal code also contravenes General Recommendation 19, which deemed mental and sexual harm upon women discriminatory in nature. It notes that sexual and mental harm deprives the woman of equal exercise of human and fundamental rights. General Recommendation 35 adds to General Recommendation 19 and states that marital rape is rated based on lack of free consent and the presence of coercive measures.

Although India has not signed the optional protocol of CEDAW, it is still obliged to protect women irrespective of their marital status under Article 2(f). Noncompliance to the said provision may attract sanctions from the organisation.

By conferring marital immunity, India also violates the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. According to Article 26 o the International Covenant on Civil and Political Rights, the domestic law of the member state should provide equal protection of status and dignity to all citizens irrespective of their status or race. Marital rape discriminates between married and n unmarried women.

As a member state, India should not derogate from any fundamental right mentioned as per Article 5. India also violates Article 1 of the Universal Declaration of Human Rights because of the discriminatory nature of exception 2 to article 376.

India's law is also in contravention with the Fourth World Conference on Women held in Beijing. The Beijing Action Platform encourages countries to enforce the provision of CEDAW, including the Optional Protocol and to amend or remove the discriminatory provision in the law of the country.

The 59th session of the Commission of Human Rights in 2003 observed that violence against women constitutes a breach of their fundamental and human rights.

The United Nation has raised flags time and often about the perilous legislation that allow marital rape. UN Women in its flagship annual Progress of the World's Women report urged the member countries to criminalise marital rape. It also deeply criticised the "marry your rapist" law prevalent in various countries.

Punishment for Marital Rape across nations

Marital Rape is punishable for a lifetime of the convict., especially if the victim is killed in Liechtenstein, Mongolia, Rwanda. In Guatemala, the Philippines, Serbia, Grenada marital rape can be punished for up to 30-50 years. Marital rape is punishable with up to 10-30 years of imprisonment in Mozambique, Ecuador, Luxembourg, New Zealand, Greece, Argentina and Monaco.

5.4% of married Indian women say they have experienced marital rape. 4.4% of them say they have experienced marital rape in just the last 12 months before this survey. The figure recorded by NFHS-3 for 2005-6 was 9.5%.

The figures are bolt in the face of a nation that promises to ensure dignity of life to its individuals under all circumstances. A person's house should be his/her safe abode. When a women is under constant threat and terror in her home, her right to life stands violated.

Marital Rape is a clear violation of human rights. Countries across the world have recognized this form of violence and have taken adequate steps to criminalise the inhumane treatment. India should follow the footsteps that lead towards the progress of the country.

  • The Impunity of Marital- Indian Express
  • UN Urges Countries to End Marital Rape and Close Legal Loopholes-Globalcitizen
  • When did Marital Rape become a Crime- The Week Up
  • Punishment for Marital Rape in these Countries, you didn't know about!- Lexforti
  • Marital Rape in India: An International Human Rights Law Violation-Berkeley Journal of International Law
  • Marital Rape- a non-criminalised offence in India -Harvard Human Right Journal
  • Marital Rape Law: The misuse that has already begun- Bar and Bench
  • Marital rape a crime in many countries, an exception in many more- The Indian Express

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