Marital Rape With Respect To It’s Position In India

INTRODUCTION:

Once widely condoned or ignored by law and society, marital rape is now not tolerated by many societies around the world, repudiated by international conventions and increasingly criminalized. The issues of sexual and domestic violence within marriage and the family unit, and more generally, the issue of violence against women, have come to growing international attention from the second half of the 20th century onwards. Still, in many countries, marital rape either remains outside the law, or is illegal but widely tolerated, with the laws against it being rarely enforced.

The reluctance to criminalize and prosecute marital rape has been attributed to the traditional view of marriage, and of male sexuality and female sexuality, which postulates that women have no or minimal interest in sex compared with men, that a husband has a right to demand sex with his wife, and that a wife must be sexually submissive to her husband in all respects, a view which continues to be common in many parts of the world.

In India, which follows a patriarchal form of living, marital rape is a vice which is slowly creeping in the society through the various homes of the many males present in order to prove their manhood. It is a very delicate issue, and despite various legislations being enacted, Marital Rape isn’t illegal in India. As seen, it is a part of Indian culture to be submissive and docile on every Indian wife’s part towards the husband irrespective of the situation and behavior meted out.

This paper is researched and written keeping in mind the fragile status of marital rape in India and the position of women in what we call as the world’s largest democracy.

HYPOTHESIS:

In a variety of cultures, marriage after a rape of an unmarried woman has been treated historically as a “resolution” to the rape. Citing Biblical injunctions (particularly Exodus 22:16–17 and Deuteronomy 22:25–30), Calvinist Geneva permitted a single woman’s father to consent to her marriage to her rapist, after which the husband would have no right to divorce; the woman had no explicitly stated separate right to refuse. Among ancient cultures virginity was highly prized, and a woman who had been raped had little chance of marrying. These laws forced the rapist to provide for their victim.

Rape per se is an offence against woman, violating her dignity and self-respect and when it occurs within the four-walls of a matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification. Marital rape (also known as spousal rape) is non-consensual sex (i.e., rape) in which the perpetrator is the victim’s spouse. It is a form of partner rape, of domestic violence and of sexual abuse. The woman has been given the right to fight for protection when the violators are outside entities, but when the perpetrator of her bodily integrity is her own husband, who she is married to with all the pomp and show, such protection is withdrawn by the legislators. In light of this, the idea that a woman (wife) has to have sex with her husband irrespective of her will, consent, health, etc, is absolutely unacceptable to a civilized society. Therefore there is no justification or applicability of the notion of marital exemption in the current times. It is true that mere criminalization of Marital Rape in India will not end the problem, but it surely is an important step towards changing women’s experience of sexual violence in a marriage. It is high time that the concept of “rape is rape, irrespective of the relationship between the victim and the perpetrator” is recognized by the law and put strictly to force. There is an immediate need for a distinct law on Marital/Spousal Rape in India, which should be at par with the accepted international norms on this issue.

Criminal prosecution for rape ends with marriage in Algeria, Lebanon (both as of 2010).

Although laws that exonerate the perpetrator if he marries his victim after the rape are often associated with the Middle East, such laws were very common around the world until the second half of the 20th century. For instance, as late as 1997, 14 Latin American countries had such laws, although most of these countries have now abolished them. Such laws were ended in Mexico in 1991, El Salvador in 1996, Colombia in 1997, Peru in 1999, Chile in 1999, Egypt in 1999, Ethiopia in 2005, Brazil in 2005, Uruguay in 2005, Guatemala in 2006, Costa Rica in 2007, Panama in 2008, Nicaragua in 2008, Argentina in 2012, Morocco in 2014, and Ecuador in 2014.

The practice of forcing victims of rape to marry their rapists continues even in many countries where the laws allowing this have been abolished. This is the case, for example, in Ethiopia, where marriage by abduction remains common, despite it being illegal under the new 2004 Criminal Code.

David Finkelhor and Kersti Yllo published a study in 1985 on martial rape that drew on a scientifically-selected area probability sample from the metropolitan Boston area of 323 women who were married or previously married who had a child living with them between the ages of six and fourteen. The study found that of the women who were married the instance of sexual relations through physical force or the threat of physical force was 3%A 1992 survey by the National Victim Center in Arlington, Virginia states that 10% of all sexual assault cases reported by women involved a husband or ex-husband.

In 1994, Patricia Easteal, then Senior Criminologist at the Australian Institute of Criminology, published the results of survey on sexual assault in many settings. The respondents had been victims of numerous forms of sexual assault. Of these, 10.4% had been raped by husbands or de facto spouses, with a further 2.3% raped by estranged husbands de factos.

A 1997 study led by Kathleen C. Basile found that 13% of US married women had experienced rape (defined as unwanted sex obtained through the use or threat of force) by their current husband. In the UK, statistics disseminated by the Rape Crisis Federation yield the information that the most common rapists are husbands, ex-husbands, or partners.

The prevalence of marital rape depends on the particularly legal, national and cultural context. In 1999, the World Health Organization conducted a study on violence against women in Tajikistan, surveying 900 women above the age of 14 in three districts of the country and found that 47% of married women reported having been forced to have sex by their husband. In Turkey 35.6% of women have experienced marital rape.

LIMITATIONS:

People are mentally conditioned to look at marriage as a free pass to have sex. And there rises a sense of entitlement.
The notion of the wife being an “asset” is deep seated.
Personally, all the humdrum about reverse victimization of the husband is baseless. We are scared of blowing the lid over the ugly truth of Indian marriages.
The first step towards penalizing marital rape is to accept that it happens. We are too parochial to accept that. We feel that it is woman at fault if she refuses the husband. It is her duty to obey her husband.
Marriage is an institution that hides a lot of ugliness of our patriarchal society – forced abortions, extortion, torture (mental and physical). We are squeamish of dissecting marriage. Arranged Marriage is a barter. An exchange of promises. Sex is one of them. Marital right to sexual intercourse is a firmly held belief.
Marriage is a solution to rape in many parts of India. Its like you walk into a store and damage any product, you need to buy it / pay the price of it. A raped woman is damaged goods. Marry her and rid the family of a liable asset, you are redeemed of your crime. Such a society is incapable of understanding marital rape.
Improper usage of Sec 375 of IPC which states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

REVIEW OF LITERATURE:

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.

Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.

Historically, “Raptus”, the generic term of rape was to imply violent theft, applied to both property and person. It was synonymous with abduction and a woman’s abduction or sexual molestation, was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “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 herself in kind unto the husband, whom she cannot retract.”
Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.

Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

ANALYSIS:

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount top excessive interference wit the marital relationship.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice or equity. Even international law now says that rape may be accepted a s the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behavior.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

‘Rape’ should be replaced by the term ‘sexual assault’.
‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

VERIFICATION OF HYPOTHESIS:

A judge in India has officially confirmed that rape laws do not apply to married couples — once you’re legally wed, forced sex is no longer a crime.

What’s especially chilling is that the judge, Virender Bhat, was hearing a case in which a woman alleged she had been drugged, then forced to marry, and then raped — in other words, she hadn’t consented to the marriage or the sex. Bhat said there was no evidence that the accuser had been drugged, but he also said that if the woman’s husband (identified only as Vikash) had forced

himself on her, that wouldn’t qualify as rape under Indian law. This isn’t the first time marital rape has been an issue in India. Recently, after a student was raped and murdered in Delhi, a committee headed by former Indian Supreme Court chief justice J.S. Verma made a number of recommendations for improving India’s rape laws, including doing away with the marital rape exemption. According to the Verma Committee’s report:

Under the Indian Penal Code sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.

The country strengthened its sexual assault laws based on the committee’s recommendations, but the marital rape law remained unchanged — and this new ruling just reconfirms it.

In early 2000, for instance, two-thirds of married Indian women surveyed by the United Nations Population Fund claimed to have been forced into sex by their husbands.

In 2011, a similar study released by the International Center for Research on Women, a Washington-based non-profit, said one in every five Indian men surveyed admitted to forcing their wives into sex.

Some legal experts believe the government is reluctant to criminalize marital rape because it would require them to tweak laws based on religious practices, including the Hindu Marriage Act 1955, which says a wife is duty-bound to have sex with her husband.

Denying sex, according to traditional Hindu beliefs, goes against the duties of an ideal wife.

It is common for courts to grant a divorce on the grounds that a wife denies her husband sexual intercourse.

“The wife is unwilling to share the bed and discharge her duties,” the Karnataka High Court said in a judgment last year, adding that this violated sections of the Hindu Marriage Act.

Another petition filed in the Delhi High Court last year, showed a lower court had granted a man divorce after his wife “caused mental cruelty” by denying him sex, including on the night of their wedding.

“One cannot criminalize marital rape unless supplemented with amendments in the Hindu Marriage Act,” notes Mihira Sood, a lawyer focusing on women’s rights.

But amending laws related to Hinduism, she believes, is “near to impossible given the frail religious sentiments” in the country. “Religion is a volatile topic in India. The government certainly doesn’t want to meddle with it,” Ms. Sood says.

Many countries criminalized marital rape in recent years. For instance: Malaysia changed its laws to that effect in 2007; Turkey in 2005; and Bolivia earlier in this year. The United States began criminalizing marital rape in 1970s and most European countries in the 1990s.

CONCLUSIONS AND RECOMMENDATIONS:

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil remedies to what the provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., … mental, physical, or sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It is about the fundamental design of the marital institution that despite being married, she retains and individual status, where she doesn’t need to concede to every physical overture even though it is only be her husband. Honour and dignity remains with an individual, irrespective of marital status.

Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for n offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive n mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

As a final piece of argument to show the pressing need for protection of woman, here are some effects a rape victim may have to live with,-

Physical injuries to vaginal and anal areas, lacerations, bruising.
Anxiety, shock, depression and suicidal thoughts.
Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and infertility.
Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and negative self image.

Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.

By Prof Dr Nasreen Taj BMS LAW COLLEGE

BIBLIOGRAPHY:

Ratanlal and Dhirajlal-Women and Child Law