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ABSTRACT

This Paper is dealing with the topic “Marital rape” especially in India, discussing about in which all cases do marital rape becomes an offense. Marital rape is also known as spousal rape which is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Marriage is not a right for a male who have sex with his partner. If the sex is without consent, then it will lead to rape which was defined under section 375 IPC and the punishment was provided in section 376 IPC. If the sex without consent is after marriage, it will lead to marital rape. This paper states about the situation where marital rape is offended and at last it states about the ways to look forward against this brutality.

INTRODUCTION

“Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces.”

- F. H. Batacan

Rape is an unlawful sex without assent of a man because of physical drive or dangers, or due to deceitful demonstration of perpetuator without consent. In India rape by an outsider is a penal offense under section 375 and 376 of IPC wherein section 376 IPC provides Punishment Shockingly, it unequivocally avoids marital rape from ambit of conviction. Marital rape is sex by spouse with his better half without her assent or consent or by compel or danger.(1) 

Patriarchal framework that administers Indian families has constantly considered ladies as unimportant property of her significant other or guardian. So, rape was considered as theft of ladies and wrong against spouse or guardian. This belief system has impacted our legislatures in disregarding offense of spouse rape by giving it shield of wedding right of the spouse and by this they are noiselessly tolerating that ladies are only a protest of sexual satisfaction of her better half with no will of her own over her sexuality. This discernment has laid down ladies' entitlement to uniformity and equity.

Rape is not only savagery against ladies but rather a grave infringement of a person's basic ideal to life and individual freedom. Connection amongst casualty and culprit does not transform it. In this manner it isn't right to trust that sex with spouse is husband's privilege given to him by marriage. Social disgrace associated with marital rape as smothered women's voice against her husband, who uses his preferable position over break her trust and individual dependability. It has been demonstrated that, marital rape is more traumatic with longstanding results: physical and mental. Subsequently marital resistance to spouse has been pulled back in a few nations. By decriminalizing spouse rape our state is failing in its obligation to guarantee sex equity that includes security from wrong doing and manhandle.(2)

Today numerous nations have either established marital rape laws, revoked marital rape special cases or have laws that do not recognize marital rape and ordinary rape. This demonstrates marital rape is currently perceived as an infringement of human rights. In 2006, it was assessed that marital rape is an offense rebuffed under the criminal law in no less than 100 nations and India is not one of them. Despite the fact that there have been a lot of enactments and institutions gone in India as to brutality against lady in her own particular house, similar to laws against female child murder and abusive behaviour at home, marital rape has neglected to pick up acknowledgment as a wrongdoing according to strategy producers. Marital rape, in India, is holed up behind the hallowed drapes of marriage. (3)

MARITAL RAPE STATUS IN INDIA

  • The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
  • Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
  • However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution.
  • As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
  • The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise.(4)

MARITAL RAPE AND LAWS IN INDIA

Marital rape is not an offense in India. Enactments in regards to marital rape in India are either non-existent or esoteric and dependant on the understanding by Courts. Section 375, the provision of rape in the Indian Penal Code (IPC), mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” As per section 376 of IPC, which provides punishment for rape, the rapist ought to be rebuffed with detainment of either portrayal for a term which might not be under 7 years but rather which may stretch out to life or for a term reaching out up to 10 years and should likewise be at risk to fine unless the lady raped is his own particular spouse, and is not under 12 years old, in which case, he might be rebuffed with detainment of either depiction for a term which may reach out to 2 years with fine or with both.(5) 

Hence marital rape is viewed as a rape just if the spouse is under 15 years old, and the seriousness of punishment is milder. There is no lawful security agreed to the spouse after the age of 15, which is against human rights directions. A similar law that accommodates the lawful period of agree for marriage to be 18, shields from sexual mishandle just those up to the age of 15. According to the Indian Penal Code, the cases wherein the spouse can be criminally arraigned for an offense of marital rape are as under:

When the wife is between 12 – 15 years of age, offence punishable with imprisonment upto 2 years or fine, or both;

When the spouse is underneath 12 years old, offense culpable with detainment of either portrayal for a term which might not be under 7 years but rather which may reach out to life or for a term stretching out up to 10 years and should likewise be subject to fine;

Rape of a judicially isolated spouse, offense culpable with detainment upto 2 years and fine; Rape of wife of above 15 years in age is not punishable.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which considers marital rape as a type of local violence. Under this Act, a lady can go to the court and get legal partition from her husband for marital rape (6). Marital rape is unreasonable: is a lady's body raped, as well as her affection and trust are damaged in this way throwing her it might be said of instability and dread. Her human rights are relinquished at the holy place of marriage.

However, the laws to secure the interests of the casualties of marital rape are lacking and deficient, and the means taken are unacceptable.

The fundamental commence of these "laws" is that agree to wed includes an agree to draw in into sexual action. However, does consenting to participate in sexual action mean agree to being exacted with sexual viciousness? Brutality makes a feeling of dread and instability making the lady submit to sex. It is not the same as consenting to sex. The refinement amongst assent and non-assent in contradistinction is central to criminal law.

It is unexpected that a lady can ensure her entitlement to life and freedom, however not her body inside her marriage. The very meaning of rape (section 375 of IPC) should be changed. The main resort for ladies so far is section 498-A of the IPC, managing remorselessness, to ensure themselves against "unreasonable sexual direct by the spouse". In any case, there is no standard of measure or translation for the courts, of ‘perversion’ or ‘unnatural’ within imply spousal relations. Is unreasonable interest for sex unreasonable? Isn't assent a sine qua non? Is marriage a permit to rape? There is no answer, on the grounds that the judiciary and the legislatures are quiet.

RIGHT TO LIVE WITH HUMAN DIGNITY

In Francis Corallie Muin v. Union Territory of Delhi (7) case, the idea of right to life under Article 21 of the Constitution was highlighted. As per this case Article 21 incorporates the right to live with human dignity and all that accompanies it, to be specific, the minimum essentials of life, for example, adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. The right to live with human dignity is a standout amongst the most fundamental component of the right to life which perceives the independence of a person.

The Supreme Court has held in a catena of cases that the offense of rape abuses the right to life and the right to live with human dignity of the victim of the crime of rape (8). One such example is The Chairman, Railway Board v. Chandrima Das (9). The Supreme Court has observed that rape is not merely an offence under the Indian Penal Code, but is a crime against the society as whole. In Bodhisattwa Gautam v. Subhra Chakraborty (10) court held that rape is to a lesser degree a sexual offense than a demonstration of hostility gone for corrupting and mortifying the ladies. In this manner the marital exception principle is violative of spouse's entitlement to live with human dignity. Any law which damages ladies' entitlement to live with dignity and gives spouse appropriate to drive wife to have sexual intersourse without her will is along these lines unlawful.

RIGHT TO SEXUAL PRIVACY

Right to privacy is not mentioned in the Indian Constitution. Nevertheless, in a series of cases like Kharak Singh v. State of U. P. (11); Govind v. State of Madhya Pradesh (12); Neera Mathur v. LIC (13) etc., the Supreme Court has perceived that a right to privacy is intrinsically ensured under extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. Any type of intense sex damages the right of protection, sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded lady's entitlement to protection by driving her to go into a sexual relationship without wanting to.

In the case of State of Maharashtra v. Madhkar Narayan (14), the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished. In the landmark case of Vishakha v. State of Rajasthan (15) the Supreme Court extended this right of privacy in working environments also. Further, along a similar line we can translate that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital exception teaching damages this right of privacy of a wedded lady and is consequently is illegal.

RIGHT TO BODILY SELF- DETERMINATION

The privilege to substantial self-assurance can likewise go under the ambit of Article 21 in spite of the fact that the Constitution does not explicitly remember it, such a correct exists in the bigger system of the right to life and personal liberty. The idea of right of self-assurance depends on the conviction that the individual is a definitive chief in matters intently connected with her/his body or prosperity and the more private the decision, the more vigorous is the privilege of the person. They will be the main creators of his own destiny which decides his reality. Sexual relationship is a standout amongst the most individual decision that a lady holds for herself. Decisions identified with sex is a type of self-expression and self-assurance. On the off chance that the law tries to take away the privilege of communicating and repudiating such assent certainly denies a lady her protected right of real self-assurance. In this way, it is presented that the marital exclusion principle successfully denies a wedded lady her entitlement to substantial to self-assurance and meddles in her most individual decision making.

MARITAL RAPE: AGAINST LEGAL AND CONSTITUTIONAL RIGHTS

  • Doctrine of Coverture: Non-Criminalised nature of Marital rape emanates from the British era. The Marital rape largely influenced by and derived from this doctrine of merging the woman’s identity with that of her husband.
    • At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity.
    • The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
  • Violative of Article 14: Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution (16).
    • The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives.
    • In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
  • Defeats the Spirit of Section 375 of IPC: The purpose of Section 375 of IPC is to protect women and punish those who engage in the inhumane activity of rape.

    • However, exempting husbands from punishment is entirely contradictory to that objective, as the consequences of rape are the same whether a woman is married or unmarried.

    • Moreover, married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands.
  • Violative of Article 21: According to creative interpretation by the Supreme Court, rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others (17).
    • In the State of Karnataka v. Krishnappa (18), the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.
    • In the Suchita Srivastava v. Chandigarh Administration (19), the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
    • In Justice K.S. Puttuswamy (Retd.) v. Union of India (20), the Supreme Court recognized the right to privacy as a fundamental right of all citizens. The right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.
    • In all these judgements the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.
    • Therefore, forced sexual cohabitation is a violation of the fundamental right under article 21.

JUDICIAL STAND

The Supreme Court, in State of Maharashtra vs. Madhukar Narayan Mandikar (21) has alluded to one side of security over one's body. What is tragic here is to watch how court has advantageously put spouse out and has yet not given her protection over her own body while ladies who have been subjected to rape by stranger have that perfectly fine is criminalized however not marital rape. For this situation it was chosen that a prostitute has the right to deny sex on the off chance that she was unwilling.

In Sree Kumar vs. Pearly Karun (22), the Kerala High Court watched that the offense under Section 376A, IPC won't be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. For this situation, the spouse was subjected to sex without her will by her husband when she went to live respectively with her husband for 2 days as result of settlement of separation procedures which was going ahead between the two parties. Subsequently the spouse was held not liable of raping his wife however he had done as such.

The judiciary appears to have totally consigned to its benefit rape inside marriage is impractical or that the disgrace of assault of a lady can be rescued by getting her hitched to the attacker.

The judiciary appears to have totally consigned to its benefit rape inside marriage is impractical or that the disgrace of assault of a lady can be rescued by getting her hitched to the attacker.

WAY FORWARD

The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”

In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.

The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the same (23).

By removing this law, women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.

 CONCLUSION

Marital rape is not completely criminalized in India. It certainly is a genuine type of wrongdoing against ladies and deserving of government's consideration. Women who are raped by their spouses are more inclined to various attacks and frequently endure long haul physical and enthusiastic issues. In this specific circumstance, marital rape is significantly more horrendous for a lady since she needs to remain with her aggressor ordinary. As the results of marital rape are truly high, there is obviously a dire requirement for criminalization of the offense of marital rape. Positive legitimate change for ladies by and large is going on in India, yet additionally steps are fundamental so that both lawful and social change happens, which would finish in criminalizing marital rape and changing the attitude about ladies in marriage. There are many loopholes in Protection of Women from Domestic Violence Act, as the Act does not straightforwardly talk against marital rape. On the brighter side sanctioning of a particular enactment against abusive behavior at home has opened the entryway for an enactment criminalizing marital rape. This unmistakably demonstrates move in mentality of state which prior put stock in non-intercession in family circle. Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women. Therefore, it is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.

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References:

  1. Vandana, Sexual Violence against Women- Penal law and human Rights Perspectives, 3 (2009), Lexis Nexis, Butterworths, Wadhwa Publishers, Delhi.
  2. Ann Wolbert Burgess and Lynda Lytle Holmstrom Rape: Victims of Crisis, 197 (1974) quoted in Dianne Herman, “The Rape Culture” in Women- A feminist perspective, ed. By Jo Freeman, 3rd ed., 20 (1984) at 22.
  3. Ibid.
  4. Sec. 375, IPC, exception 2: read as- sexual intercourse by a man with his own wife, the wife being under fifteen years of age, is not rape.
  5. Section 376 (1) IPC- In other rape cases, the minimum mandatory punishment is 7 years which extend upto 10 years or for life.
  6. The protection of Women from Domestic Violence Act, 2005
  7. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, 1981 A.I.R. 746.
  8. Supra n1.
  9. The Chairman, Railway Board v. Chandrima Das, 2000 2 S.C.C.465.
  10. Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 1996 SC 922.
  11. Kharak Singh v. State of U.P, A.I.R. 1963 SC 1295.
  12. Govind v. State of Madhya Pradesh, 1975 A.I.R. 1378.
  13. Neera Mathur v. LIC 1992 A.I.R. 392.
  14. State of Maharashtra v. Madhkar Narayan, A.I.R. 1991 S.C. 207.
  15. Vishakha v. State of Rajasthan, 1997 6 S.C.C. 241.
  16. Article 14 of the Constitution of India: read as- The state shall not deny to any person equality before the law or equal protection of law within the territory of India.
  17. Article 21 of the Constitution of India which read as: no person shall be deprived of his life and personal liberty except according to a procedure established by law.
  18. State of Karnataka v. Krishnappa, 2000 CriLJ 1793.
  19. Suchita Srivastava v. Chandigarh Administration, 2009 (3) GLH 468.
  20. Justice K.S. Puttuswamy (Retd.) v. Union of India, WP (C)494/2012.
  21. State of Maharashtra vs. Madhukar Narayan Mandikar, A.I.R. 1991 SC 207.
  22. Sree Kumar vs. Pearly Karun, 1999 KHC 112.
  23. Justice Verma Committee report, (2013).

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