• The Law Gazette

Marital Rape – An Evil Truth

As every coin has two sides, the arguments regarding the issue of marital rape are on one side demanding the criminalization of the act of marital rape and on the obverse side some are arguing that marital rape is not an offence and should not be criminalized. Marital rape is serious societal issue which has to be pronounced by the judiciary as soon as possible so as to stop such offences in the society against women.


UNDERSTANDING THE MEANING OF MARITAL RAPE

Marital rape can be defined as the sexual intercourse of a spouse with another without her will or consent or both. In our society, many people think that wives are the property of husband and he can behave the way he wants to and he is the sole possessor of the woman after marriage. They think that marriage is the ‘license to rape’ [i] a woman. They believe that under the curtain of marriage husband can exercise their power on their wife.


Though marital rape is most common and repugnant form of masochism in Indian society, it is hidden under the iron curtain of marriage. Due to the notions of the society of treating marriage sacrament, seven lifetimes together and the notion of ‘pativrata’, the woman keeps on suffering the heinous crime like being raped by her husband and if any woman try to show the courage to speak against this crime, she does not get justice because of the lack of provisions regarding this crime in Indian laws. Social practices and legal codes in India mutually enforce the denial of women’s sexual agency and bodily integrity, which lies in the heart of the women’s human rights.


IS MARITAL RAPE A NEWLY OBSERVED CRIME?

When we look into the history, we can see that woman was never given the right to take decisions for herself. Many a times, we can see that a woman is said to be the property of father before marriage and property of husband after marriage, she is restricted from giving her opinion or taking decisions on her own, etc. in movies based typically on the history or casting a historical aspects or traditional mindset of the society related to women. This doesn’t mean that everyone in the society believed that women should stick to the household chores, children, etc.


There have been few examples like Gopalrao Joshi who supported his wife to pursue education and complete her dream to become a Doctor. But many women suffered a lot. Early rape laws defined the assault as a crime against the husband or father whose wife or daughter was defiled. Under this framework, marital rape became an oxymoron as the wife was legally treated as husband’s sexual property. Women were afraid to raise voice against the exploitation and crime due to societal notions and were afraid of non-acceptance of the society.


THE WORLD EYE ON MARITAL RAPE

In United States, researchers gave an estimate that about 10% - 14% women face rape under the institution of marriage [ii].This problem received less attention by the legal system, social practitioners, etc. despite of its ubiquity in the society. People didn’t acknowledge that rape can occur even under the institution of marriage until 1970s. The general rule was followed that a husband cannot be convicted for the crime of marital rape as he is entitled to have sexual intercourse which was the implied right under the contract of marriage. The existence of the exemptions show that the marital rape is treated crime of lesser intensity than other forms of rape. This also shows the acceptance of the archaic understanding of wife being the property of husband and one of the examples is R v. R case dealt before the House of Lords.


In the R v. R case [iii], R married his wife in August 1984 but marriage became strained and she went back to her parent’s house in October 1989 and left a letter expressing her reason to seek divorce. R broke in his wife’s parent’s house in November 1989 when they were not there and assaulted his wife and also attempted to force her to have sexual intercourse. He was arrested by police and the petition was filed against him in House of Lords. House of Lords delivered a judgment stating that under English Criminal Law, it is possible for husband to rape his wife. The case was appealed in Court of Appeal in 1991. The court of appeal and the House of Lords upheld the conviction of rape and declared that marital rape exemptions do not exist. But, today many countries which have enacted a law dealing especially with the issue of marital rape and some have distinguished between marital rape and rape. Few names of the countries which have done either of them are viz. Taiwan, the United States of America, the United kingdom, Philippines, Canada, Denmark, Belgium, Australia, Italy, Ireland, Indonesia, etc. the criminalization of marital rape in some Asian countries and in other countries show that now marital rape is recognized as violation of human rights. But, India is not among the country to have recognized marital rape as crime.


Even though, marital rape is prevalent in Indian society, it is hidden behind the sacred curtain of marriage. The three crucial trends that brought this change in the perspectives of the countries towards marital rape are:

1. The recognition of the violation of rights due to abuse in private sphere by International Human rights organization

2. The global HIV/AIDS pandemic situations brings marital rape at forefront and while the entire world is battling with the pandemic of COVID-19 , there is sense of fear of death due to other global pandemics

3. Transformation in the marriage of institutions


LEGAL POSITION OF MARITAL RAPE IN INDIAN SCENARIO AND THE LACUNAE IN INDIAN LAWS

In India marital rape has de facto (by fact) existence but not de jure(by law).[iv] In some cases Supreme Court has given a judgment saying that rape is crime against the basic human rights of women and violation of fundamental right enshrined in Article 21 of constitution i.e. Right to Life. Though there have been some improvements in legislation by enforcing the Domestic Violence Act, but it has main focus on physical abuse and less about sexual abuse. Only two groups of woman are included under the section of rape in Indian Penal code, i.e., those being under 15 years of age and the wives separated from their husbands.


If a girl below the age of 15 years is raped then the rapist is punished with rigorous imprisonment but if the rapist promises to marry the rape victim, the punishment given is less. Does this promise to marry reduce the intensity of the crime? Does it decrease the suffering of the victim which she has to go through while the proceedings are carried out? The other group of women included in the definition of rape is of married wives who are separated from their husband. There is nothing mentioned about the woman who are still living with their husbands in their matrimonial house and are the victims of marital rape. Isn’t the married wife who is victim of marital rape entitled to fundamental rights? Doesn’t she have the right to raise voice against the crime of marital rape just because she is married to the person? Just being married doesn’t make a woman husband’s sexual property.


In India, people argue against the criminalization of marital by saying that another law or provisions for marital rape will increase unnecessary burden on the legal system, the laws may be misused by woman if she prosecutes her husband by false allegation of marital rape, etc. The counter argument to this raised many a times is about the misuse of other laws formed. Though other laws are misused they are enforce by the legislation. Then, why not the laws or provisions related to marital rape? The Article 21 of constitution states about the right to life with which is a fundamental right and this right is clearly violated in the case of marital rape.


NEED TO CRIMINALIZE THE ACT OF MARITAL RAPE

Sexual autonomy i.e. to engage oneself in physical relationship with another is a basic human right but it comes with the right to privacy which is also a fundamental right. There should be some punishment for violation of rights. Marital rape clearly violates Article 14(right to equality before law and equal protection of law) as there is no protection and provision for the victim of marital rape, Article 15 (right against discrimination on the grounds of gender, etc.)the woman is denied justice by saying that she has given implied consent for sexual intercourse by marry the person and protects the husband from his evil act and Article 21 (right to life) as the right of woman to live with dignity is violated. The right to sexual intercourse is not the inherent right of husband in marriage, as it defeats the very right of equality and human dignity. Thus, it is the need of the hour to criminalize the evil present in the society.


FEW JUDGEMENTS WHICH SHOULD ALSO BE APPLIED IN CASES OF MARITAL RAPE

1. Francis Coralie vs. UOI [v]

In this case the article 21 was highlighted and Supreme Court stated that offence of rape abuses the right to life with dignity and privacy.


On the basis of above judgment, it can be said that, the marital exemption is against the entitlement of the spouse’s right to life with dignity and privacy. Along the same lines, sexual intercourse without the consent of wife is unlawful as it violates her fundamental right to privacy and harms her dignity.


2. State of Maharashtra vs. Madhukar Narayan [vi]

In this case Supreme Court held that the woman is entitled to sexual privacy and it is not open to anyone and no person can violate this right whenever and wherever he wishes.


On the basis of the above judgment, it can be said that right to privacy to go into sexual relationship is also present in marriage. Subsequently, decriminalizing rape in marriage by marital exemption damages this right to privacy of woman which is consequently illegal.


CONCLUSION

The most basic thing is that both, the male and female, child should be taught that they are equal and have equal rights and no one is superior or inferior. Women should be supported, morally as well as legally, to raise voice against the atrocities. The unnecessary notions in the society should be removed by imbibing the awareness among the people that marring a person doesn’t give him the ‘license to rape’ his wife. Wife has rights to live her life with dignity and respect. She has her right to sexual privacy and no one can violate that right, then may it be a stranger or her husband. Her consent should be taken before involving her in a physical relationship. The criminals defending themselves through the sacred curtains of marriage should be punished. The rape laws in India should be made clearer and should introduce the provisions protecting the women from marital rape.


ENDNOTES

[i] Need for criminalization of marital rape by Liza Arora

[ii] Marital Rape — Myth, Reality and Need for Criminalization by Saurabh Mishra & Sarvesh Singh

[iii] R v RC case , House of Lords, WESTLAW

[iv] de facto means that there is existence of marital existence in society but there is absence of law regarding the marital rape which means absence of de jure

[v] Supreme Court of India(1981) , MANUPATRA

[vi] Supreme Court(1990) , MANUPATRA


ABOUT THE AUTHOR

This blog has been authored by Bhagyashree Ravindra Kathavi who is a 1st Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.


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