Author: Ananya Tyagi, Student at Amity Law School, Noida.
Co-Author: Shikha Baisoya, Student at Amity Law School, Noida.
This research paper analyses and scrutinize the offence of marital rape which has not been recognized by Indian legal system. This paper put emphasis on the requisites of criminalising marital rape. There is a visible rise related to the filing of cases but absence of a particular law or non-recognition of the crime disorganises the legal system. Further, this paper provides for a comparative analysis of how neighbouring countries have recognised the urge of criminalising marital rape. And in the end, it consists of suggestions as to how the process of criminalising marital rape could take place in India.
Marital rape, has been an alien concept in Indian society as it simply rejects the concepts such as patriarchy and misogyny. Irrespective of the relationship between the victim and the offender rape cannot be described as something ‘legal’ for the fact that sexual intercourse without consent does not become justiciable or legal if practised within a marriage. Marital rape in social scenario seems as a non-existing crime. Presently, there is some awareness whereas, rural areas are still left at the ignorance of the fact that something like this exists. The lack of awareness regarding marital rape makes it far worst to deal with, women not having the knowledge that something like this is unacceptable, and this is not the only problem, Non recognition of marital rape in the eyes of law leaves the situation more unfavourable as women who recognise that it is wrong, they have no ground or law under which they could take action. WHO defines sexual violence as “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work”
An article by THE HINDU states that 60% women reports sexual assault by spouse. Now the fact is that if more than half of the women in India are reporting sexual assault by their spouse then what is so difficult to understand that it is illegal and unacceptable. The report also affirms that in almost all the cases police deny to lodge the FIR, and almost all the FIRs are lodged under section 498A (domestic violence) and section 377 (unnatural offences). The reason behind it is that even police lacks the knowledge as to under which section the crime has to be reported.
There are enormous cases which are not even being reported by the reason that women lack the knowledge that marital rape is illegal and unacceptable. Rural areas, where women are not even provided with equal rights and status equal to men, for such situations the non-recognition of marital as a law makes the situations worst.
India is one of the 36 countries which have not criminalised marital rape. However, there are various writ petitions which have been filed before high courts and supreme court related to the exception 2 of section 375 of IPC. The exception states that forced sexual intercourse by a husband on her wife is considered as rape only if the wife is under the age of fifteen. However, in a recent judgement of supreme court in the case of Independent thoughts VS. Union of India, held that the age of criminalisation of forced sexual intercourse within a marriage is 15 – 18 years.
The non- existing law on marital rape is very much associated with the social scenario where rights of women are still being infringed and there are still stereotypical duties which every Indian woman ‘must’ obey, the well-established example is marriage. Marriage has been considered as a sacramental tie between a man and a woman from past decades, to legalise the sexual activities, to perform the religious duties, to give birth to children, etc. however the basic concept has started evolving by now, but is it enough?
The Hindu Marriage Act of 1955, defines marriage as something which is essential or mandatory for a Hindu man or woman to perform. It states that once the relationship of marriage is established, even death cannot break it. The objective of marriage under Hindu law is to regulate or enable the spouses to perform the religious activities. It nowhere states the need of consent to marry. It can be said that the laws are completely originated religiously. On the other hand, Muslim personal law defines marriage as a matrimonial relationship to legalise sexual activities. The one basic difference between Hindu and Muslim marriage is that Muslim marriage states the concept of consent before marriage whereas, Hindu law does not.
Thus, both the laws establish the concept of consent before marriage, here the question arises regarding the need of consent before starting the sexual relationship, is it not necessary? The question brings so many other questions and facts into consideration, will it be amount to ‘RAPE’? If the question is to be taken into the general scenario, it is believed that a woman when becomes a wife it is her duty to fulfil the needs of her husband, then it leads to another question, does it have to be forceful?
Indian laws cover almost every aspect of crimes against women for instance, rape, domestic violence, cruelty, child marriage, sati tradition, etc. now, the most important question arises, ‘why not marital rape?’
‘Marital rape’ has been the most least considered issue in the eyes of law. Does sexual intercourse without consent becomes legal if it is done within a marriage or does it become justiciable straight from ‘rape’ to “duty of a woman”. All the questions remain unanswerable when it comes to declare marital rape as a criminal offence. There is equal need to not only make laws against it but, impose strict penalties and imprisonment.
It can be said that the legalisation of the concept of marital rape still does not exists in India is somehow a result of the concept of patriarchy, misogyny and male domination which are deeply rooted in Indian society. There is no doubt that patriarchy has been existed in society for a very long period now, as a result it has created a society where rights of women are the least serious issues. The non-existing law against marital rape indicates that the body of woman is still considered as a sexual property of her husband and to fulfil the sexual desire of her husband is her duty. The concept of marriage has been designed in a way that it signifies that the objectives of marriage is to legalise the sexual behaviour between a man and a woman, whereas there is no need to legalise the sexual behaviour, the real need is to demolish the legalised concept of marital rape.
There is a simple concept behind the need to declare marital rape as a punishable offence, which is the urge to understand that ‘sexual intercourse without consent’ amounts to rape, even if it is done within a marriage. Hence, marital rape is nothing but a non-criminalized crime which is not getting enough recognition in the eyes of law.
RAPE LAWS IN INDIA
The concept of rape in India is much more complicated as compared to other countries the reason behind it is a rigid social structure which is governed by the stereotypical activities.
The 84th report of the law commission of India referred rape as ‘ultimate violation’. Section 375 of Indian penal code defines rape as a punishable offence. It defines rape as sexual intercourse by a man with woman:
- Against her will
- Without her consent
- With her consent, when the consent has been obtained by putting her or any person in threat to hurt or putting them in fear of death
- With her consent when the man knows that he is not her husband, and she gives the consent believing the person to be her husband or believes that she is lawfully married to him
- With her consent, when the consent is given by a person of unsound mind, or in intoxication
- With or without consent when she is under the age of sixteen
Section 375, gives a clear definition of rape, but fails to include marital rape as a criminal offence. The section states that sexual intercourse with the wife who is above the age of fifteen is not rape. The definition creates many questions, as to why the age has been set to fifteen?
The section also states that forceful sexual intercourse with wife whose age is 12-15 years is rape. If it can be considered as rape so, considering the forceful sex on the wives who are above the age of fifteen is no difficult concept to be understood. The section also states that sexual intercourse with no consent with a wife who is living separate under a decree of judicial separation is punishable with maximum two years of imprisonment. This particular provision indirectly states that sexual intercourse with no consent with a wife who has been living in the same roof or who is legally married to the person is justiciable.
The punishment for rape with wife not living with the husband under the decree of judicial separation is punishable minimum for seven years which may extend up to ten years. Whereas, rape of a minor who is under the age of twelve, including a wife, gang rape, custodial rape, has been considered as much serious offences and the punishment for these is minimum ten years of imprisonment which may extend to life imprisonment. Section 376 of IPC states the provisions related to the punishment of rape, the section states that fine shall be imposed on the offender. Explanation 2 of section 375 states that the offender of rape shall not be punished if the victim of the rape is the wife of the offender who is above the age of fifteen. Section 375 and 376 both have a wide description of what is rape, and what would be the punishment for it. Even the sections are wide enough to include ‘consensual rape’ in the definition of rape. Consensual rape is, rape committed under the promise to marry. Still both sections fail to provide any provision for marital rape.
Mathura rape case initiated the focus of Indian judiciary and the criminal administration of India towards the injustice and crime taking place against women. But the question is that after all these elaborated laws for the protection of women, has Indian laws succeeded in forming a completely safe criminal administration for women? The question is failed to be answered not only in the aspect of its implementation but also it fails miserably in theoretical aspect, the main reason is no codified laws against marital rape. The worst part is marital has not even considered as an offence. Mathura was a 17-year-old girl who ran away with her lover, following that her brother lodged a FIR for her kidnapping. In the name of investigation, the constables and police officer raped her. On the basis of further facts district court held that Mathura had sexual intercourse with her permission and she was habituated to sex and it will not be considered as rape. Supreme court held that consent to have sexual intercourse under threat would not vitiate the consent. It can be held with the further view that the meaning of “consent” had got a wider scope but even after this it fails to include the concept that no consent within a marriage leads to rape.
OFFENCES RELATED TO MARRIAGE
The offences related to marriage is limited to mainly, bigamy, dowry, dowry death, cruelty but never marital rape. The reason behind this is marital rape sounds so abnormal to stereotypes that it is impossible for them to accept the fact that women would have a problem with establishing sexual relationship with her husband. the main offences related to marriage would be cruelty and dowry which are explained in various sections. Cruelty to married women is defined under section 498A of IPC which states for imprisonment which may extend to three years and person shall also be liable for fine.
Another main offence related to marriage is dowry death which is defined under section 304B of IPC. The section states that if the wife dies with any burns or injury or dies in any unnatural circumstances within 7 years by any demand of dowry by husband or any relative of the husband shall be called dowry death. The imprisonment stated is not less than seven years which may extend to life imprisonment.
The co-relation here of these provisions with marital rape is that rape within marriage is a form of mental abuse which can be defined as mental cruelty which is an offence under section 498A. However, the section fails to include marital rape as an offence as a result no recognition of marital rape here as well. The fact is that the only changed aspect between cruelty and marital rape is that it is mental cruelty as well as sexual cruelty. In fact, the data analysis says that every third women in India experiences physical and sexual cruelty. If the data of the crimes which are well established by legislation and provided severe punishments for these offences are being committed as if it is not even illegal then, marital rape which is not even considered as a crime, which has no punishment, which is not even considered illegal must have more victims but since it is not illegal in India the incidents are not even reported.
Most of the cases of marital rape are reported under domestic violence, however the definition of domestic violence fails to provide any definition regarding marital rape. The offence of domestic violence got a wider recognition after the passing of PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005. The act includes sister, daughter, wife, women in living relationships, basically it provided for the remedies for unmarried women who are living in a domestic relationship. The act includes physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. Therefore, the provisions within the act nowhere affirms that marital rape is a criminal offence however, it is the basic social recognition of the act that it is a kind of domestic violence. The law covers each and every aspect of a possible impact on a woman of domestic violence thus, it included emotional violence as part of it. Here, the fact arises that marital rape results in a severe mental and emotional trauma as there is no help that a woman could reach. The act also includes sexual abuse as part of domestic violence whereas, it nowhere states that marital rape is a criminal offence.
Earlier, Marital rape, also known as spousal rape in US was not included in the definition of rape. The definition stated that forced sexual intercourse by a male with a female who is not his wife is rape. It somehow matches the current situation of Indian response on marital rape. The criminalisation of marital rape began in 1970s however, the evolved definition just stated that forced sexual intercourse by man with his wife only be considered rape if the wife is not living with the husband, which is also considered illegal in India. The complete criminalisation of marital rape transpired after the judgment of Oregon vs. Rideout. In this case John Rideout’s wife filed a case against him of raping her. Before this case came into existence marital rape was no offence therefore, the jury held Rideout accountable for the crime of marital rape and held that “a woman who is still in a marriage is presumably consenting to sex…. maybe this is the risk of being married”. After the judgment in 1993 marital rape was declared a criminal offence in all 50 states.
If compared to India, it is believed that if a woman has married to a man, she has given an implied consent to have sexual intercourse whereas, in India the concept of consent has been interpreted various times, and it nowhere affirms that implied consent is a part of consent. As stated in the above judgment that being married is a risk this way it somehow defines the whole situation and the condition of women in marriage who has been a victim of marital rape and those who are still facing it.
Like every other country UK had not held marital rape illegal, it overturned in judgment of R VS R by houses of lord. By the judgment the basic and stereotype opinion that a husband cannot rape his wife, was changed. The defendant claimed that it is mot possible that a wife can be raped by her husband as by marrying wife gives and irrevocable consent, which she could not revoke or withdraw. It was held that “Now days it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances”, “in modern times the suppressed marital exemption in rape forms no part”. As result marital rape was criminalised in 1991 in UK.
If it is compared to the situation of India, the same opinion follows till now that a husband cannot rape his own wife and by marrying women enters into a contract where she submits herself to her husband and that contract is irrevocable. The only difference is that UK has taken the issue mare seriously and realised that this does not matches the situation of modern times, why it is difficult for the India it still needs to be figured out.
Marital rape was criminalised in 1997 with the offence of rape, with heavy penalties and imprisonment for up to 12-14 years. Like every other country marital rape was not a criminal offence in Philippines, it was criminalised by the ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT, 2004. The act showed concern not only towards the condition of women in marriage but it made sure that cruelty towards their children shall also be abolished. The matter of marital rape got more strengthened after the case of People of Philippines vs. Edgar Jumawan, in this case the defendant argued by the statement that marital rape is not equivalent to rape. The matter reached supreme court, supreme court cancelled the plea of defendant and held that the ‘implied consent’ of wife would not be any ground for not convicting the husband.
As compared to the Indian response towards marital rape, enormous writ petitions have been filed before supreme court and high courts but, there are no relevant responses towards it. Marital rape in India is either included in sexual domestic violence or cruelty but they do not prescribe any punishment for the offence of marital rape.
Singapore has recently criminalised marital rape. It was criminalised on 1st January, 2020. Before marital rape was criminalised in Singapore husbands were prosecuted for forced sexual intercourse with wife under the offence of assault and others. Marital rape was a criminal offence only when the couple was separated.
The act of criminalisation of marital rape is the most recent one, and similarly like Singapore, the cases of marital rape are treated under assault, domestic violence, etc. there is a clearly a need to make a separate law as the topic is much more complicated and includes enormous numbers of victim.
As stated above, there are many countries which have been successfully criminalised marital rape. The social structure and the customs of India do differ from these countries, but irrespective of this fact, the concept of marital rape can be criminalised in the manner as follows:
The lack of awareness regarding the concept of marital rape is one of the core hurdles in criminalising it. Rural areas lack the knowledge that women are born with equal rights as men and that the body of women is not the personal property of a man. There is a need to spread knowledge and aware the people not only in rural area but in urban areas too. In order to do that various awareness programmes can be organised where people would gain knowledge about the concept as for many people marital rape is not even wrong for the customs or rituals. There is a need to understand that customs which infringes rights are not to be followed. The reason that mare than half of the cases does not even get registered is the lack of awareness that marital rape is wrong and women followed by the helplessness women decide to suffer.
- COLLECTING THE ACTUAL DATA OF VICTIMS
Once people will be aware of the concept of marital rape, there would be more cases which would be registered and women will come up with their issues. Then the actual data of the victims could be collected, as half of the cases are not even lodged, and the ratios are a lot bigger than provided now. Once the actual data could be collected it would help the legislation in getting attention towards the topic and criminalise it.
- LAWS OF OTHER COUNTRIES
In the above chapter the details were discussed as to how the countries like UK and US have criminalised marital rape, irrespective of the fact that the social aspect of India is very much different from other countries, but in countries like UK and US marital rape was criminalised by judicial precedents. Similarly, in India there are many cases which have been filed and marital rape has been the matter of issue for a very long time now, so criminalising marital rape in India is a possible task. Including important as every other aspect of marital rape.
The reason behind the non existence of any law on marital rape is associated with a rigid social structure which exists in India. In other words, no matter how developed and modern the Indian societies have become patriarchy still exists and is one of the biggest issues for the problems related to women. A married woman is supposed to satisfy the sexual desires of her husband and it is considered to be a part of her duty. The social structure which is very much influenced by patriarchy is the core reason why women are still suffering helplessly from the issues like marital. After various writ petitions have been filed, and getting no outcome of it indirectly points towards the ‘seriousness’ of the court towards the issue. Introducing a law against marital rape is not a difficult task, it needs to be started from the bottom as for some areas (especially rural area) there is no existence of the concept of marital rape and the rights of women.
- Theories of patriarchy, by Lindsey German
- Offences against women, by Ved Kumari