MARITAL RAPE- LET THE SILENCE SPEAK: SHIVANGI VERMA

ISSN: 2581-8465

Marital Rape: Let the Silence Speak

Author: Shivangi  Verma[1]

UPES, Dehradun

Abstract

This paper constitutes a thorough review of marital rape. There is an emergence of a special law to deal with the concept of marital rape in India, which should not only be taken as a national issue but should be considered an international issue. In the 21^st century where women are touching the sky along with men, they are still treated as the property of the husband. Women, in general, have been provided with strong penal laws to fight for heinous crimes like rape and molestation against them by any person then why to refrain them to have some protection against their own husband just because they entered into a wedlock with them having certain beliefs. There should be no justification for exemption from marital rape looking at the current scenario of married women. Victims who often withstand marital rape avail themselves of verbal means of non-compliance. However, many victims are not even able to hold out against the sexual aggression of their spouse and as a result, they suffer from posttraumatic stress disorder (PTSD), gynecological issues, depression, and anxiety. This paper aims to criminalize such a crime by getting its recognition in law by having a clear discretion between consensual sex and rape irrespective of the relation between the two people. This paper makes it very clear that a woman, irrespective of her relationship status, should have the right to protect herself and no matter what, her body belongs to her and she should have the right to consent or refuse any such action that involves herself or her body into it.

INTRODUCTION

“The day will come when men will recognize woman as his peer, not only at the fireside but in councils of the nation. Then, and not until then, will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race.”                        

– Susan B. Anthony

VIOLENCE IS a coercive mechanism to assert one’s will over another, in order to prove or feel a sense of power. Defined in plain terms – “Violence” is destruction, suffering or death, which is deliberately inflicted for the achievement of a purpose, which is political in nature.[2]

Violence against women is a manifestation of historic power-play struggles between men and women, which has led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.[3]

Section 375 of the Indian Penal code defines rape. It means, rape is unlawful sexual intercourse between a man and a woman without the consent of women or against her will under any of the circumstances enumerated under the section will amount to rape.[4]

Section 375 of the Indian Penal Code, defines what is “Rape” and Section 376 provides for punishment for the offence of “Rape‟. But, married women do not come in the ambit of its definition of rape. Section 375 has an exception[5] which directly pitches the married women of age more than 15 years out of this ambit. Exception 2 thereto exempts a man who rapes his wife if she is not under fifteen years of age. This colonial-era provision stands in stark contrast with other provisions of the IPC, as well as several progressive legislation that has followed since. The exception to Section 375 states that non-consensual sexual intercourse by a man with his own wife if she is over fifteen years, does not amount to rape. It thus keeps outside the ambit of rape a coercive and non-consensual sexual intercourse by a husband with his wife above fifteen years of age and thereby allows a husband to exercise with impunity, his marital right of non-consensual or undesired intercourse with his wife.[6]

MARITAL RAPE-MEANING

Marital rape refers to the sexual intercourse between a couple, who are legally husband and wife, where sexual intercourse took place without the consent of the woman or man. This wedlock gives a right to the husband and wife to have legal consummation in their marriage. Consummation between husband and wife is said to be a necessary imperative after the marriage. Marriage gives legal rights to men and women to have a legal sexual relationship and have children.

Marriage is an impeachable bond in which the man and woman vow each other to live in happiness and pain together and by understanding each other’s weaknesses, flaws, and strengths. This should not permit the man to forcefully have sex with his wife. Any kind of sexual relation whether in the marriage or without marriage, be should solely be based on the consent of the two and not be treated as obligation on either of the spouses. Both the spouse’s husband and wife should have the liberty to refuse to have sex if they don’t feel so and no one should be able to compel them to do so. For this to happen the Indian law system should introduce the law with the concept of marital rape. It has always been a debatable issue and to date hasn’t achieved any conclusion.

RAPE AND MARITAL RAPE

To get the complications of marital rape it is very important to understand the difference between terms rape and marital rape.

The word “rape” is derived from the Latin term rapio, which means “to seize”. Rape literally means a forcible seizure. It means the ravishment of women against her will or without her consent or with her consent obtained by force, fear or fraud or the carnal knowledge of women by force against her will.[7]

According to Morton Hunt, “The typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing; if she isn’t, he has the right to force her. But in forcing her he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject”.[8]

Marital rape is when a spouse rapes the other spouse. The court in a case said “Defense counsel rightly argued that IPC does not recognize the concept of marital rape. If the complainant was a legally wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes”.[9]

TYPES OF MARITAL RAPE

The following three kinds of marital rape are identified by legal scholars as generally prevalent in society[10] :-

• Battering rape: In battering rapes, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.
• Force-only rape: In what is called force-only rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.
• Obsessive rape: Other women experience what has been labeled sadistic or obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

THE PRESENT LEGAL POSITION IN INDIA

The amendment in 2013[11] has done away with this clause but at the same time has not recognized the concept of marital rape and has chosen to continue with the earlier legal approach. It would be pertinent to point out that the Justice Verma Committee Report[12] has recommended that the marital rape exemption in the IPC should be withdrawn.

The peculiarity of Indian law is the adoption of the principle of primacy and supremacy of husband’s right over that of the wife, even when she is well below the legal age of marriage.[13]

The court held in Haree Mohan Mythee’s case[14] that the husband does not have the absolute right to enjoy the person of his wife without regard to the question of safety of her. As per this decision, the only circumstances where the law recognizes the encroachment upon husband’s absolute right to sexual intercourse is when it becomes extremely dangerous to women due to some physical illness, etc. and grave consequences like death may follow.[15]

In the Kerala High Court, Sree Kumar v. Pearly Karun[16], it was observed that the wife does not live separately with the husband under the Judicial separation and being subject to sexual intercourse without her will the act does not amount to rape. Hence, it was said that the husband was not found to be guilty of raping his wife though he was de facto guilty of doing or committing the act.

Thus, under Indian law, no effort has been made to give even a veneer of protection to the right of a married woman to her physical or sexual autonomy.[17] In the existing scenario, there is hardly any feeble hope of future changes as far as recognition of marital rape of adult women is concerned and even in the case of minor wives between 15 – 18 years of age, the offence is treated for less seriously.[18]

In Saretha V. T. Venkata Subbaih[19] case, it was held that rights and duties in a marriage, is like creation and dissolution and not the term of private contract between two individuals. The right to privacy is not lost by the marital Association.

In 156th Law Commission Report, the Commission expressed its reluctance to raise the age for wife from 15 years to 18 years in the Exception to S-375 IPC[20], without assigning any reasons in particular. In the 172nd Law Commission Report, the Commission found the deletion of the exception to Section 375 IPC, unnecessary as it may amount to excessive interference with the marital relationship.[21]

FOREIGN LAWS ON MARITAL RAPE

The United Nations population fund states that more than 2/3rd of the married women in India, who are aged from 15 to 50, have been beaten, raped or forced to provide sex with him. In the year 2005, nearly more than 6500 cases were recorded where women were murdered by their husbands or by their husband’s family.[22]

Marital rape in the United States, in the year 2006 United Nations Secretary-General analyzed in-depth study on all forms of violence against women which is marital rape. It stated that in at least 53 countries rape by husband is not considered to be an offence. In the United States, Marital rape has become much more criminalized. In many countries the marital rape laws are ambiguous and they are not clear that the person can be prosecuted for a marital rape or not. Where in the absence of the law it may be possible to bring a prosecution for acts of forced sexual intercourse. In countries where the laws on rape exclude husband where the countries have inherited the Penal Code which states that the sexual intercourse by a man with his own wife is not rape.[23]

WHY IS MARITAL RAPE STILL NOT RECOGNIZED AS A CRIME

The government today says the cause for marital rape in India is poverty, religious beliefs, social customs and the mindset of Indian society, among other things. As per the latest parliamentary discussions, it seems like the current government led by India’s Bharatiya Janata Party-government, headed by Prime Minister Narendra Modi does not settle to introduce any plans relating to punishments or penalties for marital rape. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context,” Haribhai Parathibhai Chaudhary, a minister in India’s Ministry of Home Affairs, said in a written statement to India’s upper house of Parliament. He attributed this to “various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament, etc.”[24]

But contradictory to such statements, the Indian society is drastically changing, a marriage that supports violence should no longer be considered to be sacrosanct. The argument that Indian society is too traditional to criminalize marital rape is baseless and unreasonable; such propaganda should not be taken up by the government. The government should be clear on the agenda they want to promote, on one hand the officials and ministers rant on about gender equality, elimination of gender stereotypes and women empowerment by giving women an opportunity to stand equal to men in all aspects, while on the other hand, they do not give women even the basic rights they deserve. At a time when the world’s most powerful democracies are legalizing same-sex marriage, the world’s largest democracy is doing nothing to help women getting raped by their husbands, hiding behind the veil of tradition. If tradition is the only barometer then Dalits would still be untouchable, temples and high-end jobs would remain out of bounds for many castes. Tradition cannot be used to defend the indefensible. On issues related to human rights, we cannot discriminate against women on the basis of marital status.[25]

CONCLUSION

It has been concluded that Indian laws have miserably failed to provide protection to adults (age of above 15 years) married women. In the era of 21^st century where women are touching the sky with men, they are still treated as the property of the husband. By just entering into wedlock with a man she doesn’t consent him to exploit her in whichever way he may want to. This prima facie violates Article 14 and Article 15 of the Indian Constitution. It is the moral duty of the judiciary to protect women against such crime by criminalizing marital rape. The domestic abuser interventions typically focus on the committing of physical abuse and sexual offence goes completely unnoticeable and also they are medically neglected. An aspect which is least bothered in such cases is what impact do these situations leave on their children, they may suffer from depression and trauma too. Children should not be exposed to such marital and sexual violence. Finally, research is also needed on female to male rape because this is also an untouched topic that needs to be discussed.

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[1]Studying in 4^th year B-Tech in Computer Science & LL.B. (Hons.) specialization in Cyber law at ‘UPES(university of petroleum and energy studies), Dehradun’;

email- [email protected];

Mobile no.- 7060131242

[2] Vandana, Sexual Violence Against Women-Penal Law and Human Rights Perspectives, 3 (2009). Lexis Nexis Butterworths Wadhwa Publishers, Delhi.

[3]The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993.

[4] Aman Kumar V. State of Haryana AIR 2004 SC 1497, (2004) 4 SCC 379

[5] 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

[6] KI Vibhute, “Rape within Marriage” in India: Revised‟, Indian Bar Review, 2000, Vol 27, P. 167.

[7] Bhupinder Sharma V. State of Himachal Pradesh AIR 2003 SC 4684, (2003) 8 SCC 551

[8]Morton Hunt, “Legal Rape,” Family Circle (January 9, 1979), p. 38.

[9]The Life and Times of an Indian Homemaker, available at : https://indianhomemaker.wordpress.com/2012/12/04/why-is-forcible-sex-or-lack-of-consent-not-rape/

[10]Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000).

[11] The Criminal Law (Amendment) Act no. 13 of 2013.

[12] Justice Verma Committee Report, (2013).

[13] Hindu Marriage Act, 1955, s.5 (iii), prescribes 18 years and 21 years as the legal age for females and males respectively.

[14] (1890) 18 Cal. 49.

[15] Id. at 62. In this case, when eleven years old wife was subjected to forcible sexual intercourse by the husband, she died of vaginal ruptures and profuse bleeding.

[16] 1999 (2) ALT Cri 77, II (1999) DMC 174

[17] 4 Another peculiarity of Indian law is the provision for decree of restitution of conjugal right’s embodied in s. 9, Hindu Marriage Act, 1955. In T. Sareethav. VenkataSubbiah (AIR 1983 AP 356), the Andhra Pradesh High Court declared it unconstitutional and violative of the fundamental right of personal liberty and privacy. But the Apex Court upheld the validity of s. 9, Hindu Marriage Act, 1955 in Saroj Rani v. Sudarshan Kumar (AIR 1984 SC 1562) and totally ignored the effect such a decree can have on an Indian woman, who under the threat of judicial and social pressure and financial dependence may well be forced to go back to the matrimonial house and because of her vulnerable position in it, be forced to have sex and live a life of misery in an atmosphere she obviously abhors.

[18] S. 375, IPC,exception 2: reads as – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The NCW had recommended that the age limit in the Exception to S-375, IPC be raised from 15 years to 18 years

[19]AIR 1983 AP 356

[20] Law Commission of India – 156th Report on The Indian Penal Code, Ministry of Law and Justice, Government of India,161 (August, 1997).

[21] Law Commission of India – 172nd Report on Review of Rape Laws, Ministry of Law and Justice, Government of India, (2000), para 3.1.2.1. However, it was recommended by Sakhi and other women organisations that the exception be deleted. Their reasoning was – where husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault, where wife happens to be above 15/16 years.

[22] A Study on Marital Rape in the Indian Legal Scenario-G.V. Akshaya and M. Kannappan of Saveetha School of Law.

[23] Supra note 21

[24] Marital Rape: A Crime Undefined available at- https://www.lawctopus.com/academike/marital-rape-a-crime-undefined/

[25] Ibid.