Marital Rape: Comparison of India with Foreign Countries
Author: Raj Aryan
Lloyd Law College
Rape being punishable under section 375 of IPC includes essentials in which a person can be convicted of committing rape. Being very broad in its scope, yet it doesn’t include any provisions of raping a woman by his husband during their marriage life, named as Martial rape. Even the country from where IPC has been adopted, i.e. England has criminalized Martial Rape. Sexual intercourse becomes rape if consent is absent. Marriage, if gives license with consent of having sexual intercourse, does even tells that women have to fulfill the sexual desires of his husband at any cost, irrespective of their own consent after their marriage? If this is the case, then what will be the difference between a married woman and a prostitute? There exists none. In countries, like England, Poland, Canada, Australia, and USA consent is given more importance, unlike that in India. Criminalization of Martial Rape was done in these countries by considering it as a crime and offense against human dignity. India focuses more on relationship between man and women and not consent for considering rape a crime, i.e. consent. The legislation and the judiciary need to look deep into this matter considering woman not as prostitute of their husband so that women can at least feel secure in their house. Sometimes punishment plays an important role in controlling the crime, depending upon the implementation of the law and order.
Word ‘Rape’ has been derived from Latin word rapio which means ‘to seize’. Its literal meaning can be said as a forcible seizure. It can also be said as ravishment of women without her consent or will, or consent, or consent obtained under force, fraud, fear, or carnal knowledge of women by force. Marital Rape is not a unique term that has originated just now; it has come into action from the day of the marital relationship of a man with a woman. Earlier, when the society was a male-dominated ones, and women were not having any rights to protect their dignity and integrity, and were regarded as an object to fulfill the sexual desires of man. This theory is even considered and followed in many parts of the country that have not criminalized marital rape because of the relationship between the husband and wife. India comes in the list of those countries that haven’t criminalized it yet. Years after the enactment of the Penal Code in various other countries, who have considered rape as a crime in their country, India is one of them; the concept of marital rape has come into the picture. After realizing that marital rape is covered under the essentials described under rape, few countries like England, Poland, Canada, Australia, and the USA have criminalized it. The same conflict is now arising in India. The conflict is on the two different views about Martial Rape. One side says that marriage itself gives consent to having sexual intercourse, while others say that rape should be considered rape irrespective of the relationship between a man and woman, and consent is and should play a major part in the rape, or marital rape. In the whole paper, the same is discussed as what should be considered fruitful according to the present law and order system in the case of India.
In India, Rape is considered a crime under Section 375 of Indian Penal Code. Under this provision, a man is said to commit rape if he penetrates his penis, inserts any object or part of the body, manipulates any part of the body of a woman to cause penetration, applies his mouth, to any extent, into vagina, mouth, urethra or anus of a woman or makes to do same with him or other person. The acts done by a man discussed above will only amount to rape if those acts fall under the seven categories discussed below:
- The act is done against the will of the woman.
- The act is done without the consent of the woman.
- The act was done with her consent, but under the fear of death or hurt to someone, she is interested in.
- The act was done taking her consent, but she had a wrong belief of the person as considering him the person to whom she was lawfully married, and the man knows that he is not her husband.
- By taking the consent of the woman at the time when she is unable to understand the nature and consequences of the act of which she had given consent. This can be done by intoxicating and bringing her in the state of unsoundness of mind through another by a stupefying or unwholesome substance.
- When the act is done with a girl who is under the age of 18 years, in this case, consent doesn’t matter, it will be considered as rape.
- The act is considered rape when she is not in a condition or is unable to communicate consent.
Marital Rape comes within the scope of Rape. Marital Rape, also known as spousal rape, is said to be committed by a husband with his wife, being tied up in the institution of marriage without the consent of his wife. In other words, it can be said an unwilling sexual intercourse between husband and wife entered into marital relations. Many countries, like England, Poland, Canada, Australia, USA, including various other countries of the world, had criminalized marital rape in their country. India is one of the other thirty-six countries who haven’t criminalized marital rape. In India, it is considered that marriage itself gives consent to have sexual intercourse, but it doesn’t understand that a person can’t have it all the time, consent being the most essentials need to be there. While in other countries, rape is considered rape irrespective of the relationship. The same is discussed below regarding various countries:
India has adopted the Penal Code from England only. Under UK law, marital rape is considered a form of sexual assault contravening the Sexual Offences Act, 2003. Before 1992, marital rape wasn’t considered illegal, and the husband could enforce conjugal rights on his wife without her consent. It was in the year 1991 that the case of R v. R in which the House of Lords consisting of five lords was brought to question whether a man can rape his wife?
In the case of R v. R, the appellant got married on 11th August 1984, and due matrimonial disputes wife left the matrimonial home and went on to live with her parents on 21st October 1989. While leaving, she through the letter showed intention to divorce. Later the appellant also had spoken to his wife indicating that he also wants to get a divorce. On 12th November 1989, the appellant entered into the house of his wife and tried to have sexual intercourse with his wife against her will and consent and further assaulted her on her continued denial. So the issue arose before the court was ‘Can a husband rape own wife? Does marriage give implied consent to have sexual intercourse without further consent?
The court held that exemption of marital rape from common law fiction has never valued in English law, and neither has it existed in English law. So he was convicted of the rape of his wife. The husband was sentenced to imprisonment of three years for attempt to rape and further imprisonment of eighteen months for sexual assault.
It was before the judgment of R v. R that the husband was not prosecuted for the offence of marital rape. This judgment is a true example of the evolution of a common law system with the change in developments in the areas of social, cultural, and economic. Before this judgment, the husband keeps his wife to act sexual slavery, just as in the case of a prostitute. Marital Rape is also a kind of domestic violence. Now if a person is found guilty of marital rape, he is likely to get punishment of imprisonment between four to nineteen years, depending upon the facts of the case. The maximum punishment which can be given in this case is life imprisonment.
It was in 1932, the Criminal Code of Poland came into force. At the time of its enforcement, no provision existed for punishing the husband who raped his wife. The authors of that Code argued that sexual relations of spouses cannot be considered opposing the binding morality as it was considered that, it was the only accepted way of having sexual relations at a time when these provisions were created. A definite change came in 1969 within Criminal Code which although repeated the definition of rape given in the Criminal Code of 1932, the offence was placed separately in the chapter of offences against women. The change made in the protected value changed the way of interpretation of features of rapes. Now it was considered obvious that married woman can also be retaining their sexual freedom. So it’s possible that they can become the victims of rape which is to be committed by her husband.
This interpretation was not got opposed, and since 1st January 1970, the sexual freedom of married women is protected in the same way as the sexual freedom the woman has with anybody else. Till then to now, this approach towards rape is retained binding Criminal Code of 1997. Article 197 §1 and Article 197 §2 of the Criminal Code talks about the offence of rape in different forms is committed, when the offender uses illegal threat, force, or deceit and makes the victim have sexual intercourse or other related sexual activities. These kinds of crimes happen due to lack of stability in the relations between husband and wife and forms a ground for divorce and refusal to fulfil sexual marital obligations can never be justified by enforcing the execution of such duty by other spouses. Debitum Carnale which is closely attached to the institutional marriage doesn’t mean to say that each partner agrees to have sexual contacts whenever he wishes to and can demand the same at any time and in all circumstances from his partner. Although it means that each partner is willing to enter into sexual contacts but not without the consent when the same is going to be done. Earlier, the punishment given for this crime was of imprisonment of a minimum two years. After the changes brought to Criminal Code in 2015, punishment for these kinds of offences got reduced by not extending the imprisonment for 1 year.
This law in Poland acts in favour of humanity considering women also a human, and marriage not only a purpose for fulfilling the sexual desires of their partners. In this way, women were given the right to say no to their partner who wants to establish sexual conduct.
In Canada, Martial Rape was criminalized in the year 1983. Before this year, it was legally permissible for a man to rape his wife without any criminal sanctions. In 1983, reforms were brought in the Criminal Code and enacted considering Marital Rape as a criminal offence. After that till now, it is criminalized and the wife can charge her husband for having sexual intercourse without her consent. The revised code which was brought had replaced the term ‘rape’ with ‘sexual assault’ and has broadened the scope of offences which includes any kind of sexual conduct. Marital Rape fulfilling the condition of the same has resulted in the criminalization of marital rape and ensured their freedom from violence before and under the law as thus recognized women as full citizens.
The main difference between rape and rape in marriage, i.e. marital rape is that in the case of marital rape, the wife suffers additional feelings of isolation, betrayal, inability to trust, and feels like a prostitute or a kind of sex worker. Rape in all contexts should be legally prohibited, or it forms an exception in which the state and judiciary can’t do anything and remain silent just like they are feeding the violence. Changes made in amendments in 1983 ensured consent must be interpreted and should be applied in marital rape cases so that the rights of women can be protected. In 1982, the introduction of the Canadian Charter of Rights and Freedom led the impetus for the criminalization of marital rape in Canada.
The punishment given for offences related to sexual assault, like in the case of marital rape was liable to be punished with a maximum of 10 years of imprisonment, while sexual assault with the use of a weapon or which can cause bodily harm can be punished with 14 years of imprisonment, and lastly, sexual assault causing disfigurement or wounding will be punished with life imprisonment. It was also stated that marriage neither is and nor should be considered or acts as a shield for sexual assault. With the provision, women got the right to ‘say no’ whenever this wish to, without any person, as they are a human with an independent identity.
During the 1970s many Australian states introduced many reforms and have analyzed the law relating to that of rape including other sexual offences. In 1975, Mitchell Committee was formed seeking changes on laws relating to sexual offences and rape. The report stated that “Consent is given for sexual intercourse at the time of marriage, it cannot be revoked during the subsistence of the marriage, and then it doesn’t follow up the modern thinking. In today’s world, it’s not right to say that ‘wife is bound to have intercourse with her husband whenever he wishes to, irrespective of her own wish and consent’. The wife who becomes the victim of the husband’s desires of sexual intercourse needs, protection of family law gives her the right to leave her husband and live in peace. In this condition, when she had left him and living apart from him, and if he forcefully does sexual intercourse with her, without her consent, then there exists no reason for holding him liable to be prosecuted under rape.
It was in the year 1976, that Mr. Peter Duncan introduced legislation in October 1976. This legislation has removed the exemption from husband for not prosecuting him for raping his wife and thus has moved further with the recommendation given by Mitchell Committee. It was argued that the law which treats wife as the property of husband should be abolished. Further, every adult person must be given the right to consent for sexual intercourse, be within or outside the marriage. Now the rape cases involving violence, the threat of violence, acts including gross indecency are various others are now considered within the scope of the law of rape. Though in starting it was only criminalized in South Australia but in the end, it was criminalized within all the jurisdiction of Australia.
Australia is divided into 7 different federal states which have their federal laws. Due to this, they all have different punishments for different kinds of criminal activities happen in their state. Marital Rape, fulfilling all the conditions of rape is punished with different degrees which depends on how brutal the crime is and follows maximum imprisonment of 15 years, unless the victim is below 15 years if so then 20 years of imprisonment. People who commit these crimes resulting in the death of victims suffer a punishment of imprisonment for up to 30 years.
Before the 1970s, Marital Rape was exempted from the rape laws available in different states of the country. The USA has fifty different federal states in which every state has its federal laws. In the seventeenth century, Chief Justice Matthew Hale of that time said about the impossibility of rape in a marriage legally, establishing irrevocable consent. Here irrevocable consent means men had an absolute right over his wife for sexual relations within marriage and founded an exception for marital rape.
A case of 1857 in Massachusetts became the first in the USA to recognize and considered Marital Rape an exception to rape. It was said that ‘it’s very difficult to even imagine how a husband could be prosecuted with the violent crime of rape. It is even more disruptive than the act itself’. The women’s movement which took place in the 1970s had led to change the law in their favor. It was a goal that was to be achieved in the male-dominated legislatures. The movement started with some other prospective, like consequences of the unwanted marital intercourse that produces a child. This movement brought its support from a moral and legal perspective. Later the motive changed to the natural rights of ownership and control over their own body.
It was in 1976, when Nebraska, became first among the fifty states to criminalize Marital Rape. By 1993, Marital Rape had become a crime in all 50 states of the United States of America. In which many of the states draw no distinction, which neither should be, between marital and non-marital rape, like irrespective of the relationship between the accused and the victim. After Nebraska has criminalized marital rape, other states started doing so, some through the bill passed in favor of criminalizing marital rape considering women independent women, and other states will the help of cases of marital rape which come before the court. The court gave judgment in favor of the women. And it acted as a precedent for all the upcoming cases of marital rape.
In South Carolina, those who have done first-degree crime of rape, including those of marital rape, carried a punishment of imprisonment of a maximum thirty-year sentence. While those who assault and battery in the first degree are given a punishment of a maximum ten-year imprisonment. The punishment for rape and marital rape has been kept the same, i.e. irrespective of the relationship among the man and women.
In India, Marital Rape is not considered a crime and everyone is allowed to do forced sexual intercourse with his wife, and the law itself says this. It’s so ironic to say that people talk about keeping women safe within the country in streets, malls, and all other places except home. They don’t consider it necessary to talk about it. But the crimes happening with women inside their home can’t and should not be ignored. Although Domestic Violence Act, 2005 has brought about provisions to protect women in their house and also acted as good remedy for the various women victims, it wasn’t able to add Marital Rape in its scope. United Nation population fund has reported that more than two-thirds of married women, belonging to 15 to 20 years of age, is being subjected to crimes like forced sex, torture, beaten along with the demand for dowry. Many countries, as discussed above, have criminalized marital rape keeping aside the relationship between men and women. But in India, it is not so. In India, it is said that marriage itself gives consent to sexual intercourse after marriage, and the most important thing which makes rape different from sexual intercourse is the consent itself.
The point which needs to be focused upon is that ‘Marriage gives consent of having sexual intercourse, but it doesn’t snatch away the right from women to ‘say no’ to it. Denial of this right protects the husband from exercise his marital right of non-consensual and undesired intercourse with his wife. In the Indian context, sexual intercourse by a man with his wife, wife not below 15 years of age is not rape under Section 375 of IPC. Marital Rape is an exception of the Domestic Violence Act, 2005, so women don’t get any remedy on this basis. One of the most alarming facts is that number of victims of marital rape is increasing day by day, and the legislature acting as ignorant, by not criminalizing such offence.
There exists a misconception that ‘women put false allegation of rape, a monstrous brutal crime which kills dignity of themselves, to the accused which humiliates, causes great stress, damage to him’. As if this is the only concern then adultery should also be not decriminalized. As in general no women will want to kill their dignity, prosecuting a victim also affects their reputation. In the case of Saretha v. T. Venkata Subbaih, it was held that right and duties in marriage are not the terms of any private contract between two individuals, else it is like creation and dissolution. Privacy is not lost by Marital Association. As for this reason, there constitutes no punishment for marital rape, and so no remedies lie with her. Women were considered chattel to their husbands and that they don’t have any rights in the marriage except fulfilling the husband’s sexual desires.
The behavior of sexual intercourse itself is not sufficient to specify whether the act involving sexual intercourse is a kind of sexual violence or not. Consent alone is the element to prove the same. Women in India believe that they don’t have the right to refuse sex, and sex on demand is must and is an unwritten part of the marriage contract. This illusion and laws not making marital rape a crime, considers wives property of the husband, as like bringing a prostitute in the home for fulfilling sexual needs and desires. Criminal Law (Amendment) Act (13 of 2013) added section 376B of IPC making husband liable for punishment with imprisonment between 2-7 years, along with fine, if a husband had intercourse with his wife during the period of separation without her consent. Here, the legislature and judiciary had acted in the favor of women, but only during the period of separation between husband and wife.
For the criminalization of Marital Rape in India, a bill was proposed in 2015 in which the Ministry of Home Affairs said that the family is sufficient enough to deal with these problems within the family itself. The problem in India lies with the mindset of the society which treats marriage as a sacrament. That’s the reason it is considered that marital rape as understood in other countries cannot be applied in the Indian context. One thing needs attention over here is that if women are suffering from this, the law needs to act to criminalize marital rape, so that the scenario can change within a few years. So that in the coming years, women can at least feels safe inside their house. As currently, the condition of women is not up to the mark as needed as compared to that of men.
Comparison of Marital Rape- Criminalized v. Non Criminalized:
What were the reasons discussing marital rape with the other countries in comparison to India? It all was done just to make one thing clear, i.e. other countries focus more on crime other than that of a relationship whereas, in India, the relationship is giving much more importance than that of crime. India is a democratic country where laws not are made by people, but it’s made for people. A country with the longest Constitution and vast laws is not able to help women in the matter of rape by their husbands only, while they are living together. In India, women are considered the property of the husband and can’t reject their husband’s excitement of having sex with her. But in other countries, it is not so. They stick to their point that rape is rape, if consent is not present, the accused will be prosecuted no matter what relation he establishes with his wife. They consider that although marriage gives consent to have sexual intercourse, it doesn’t mean women don’t have the right to say no whenever she doesn’t wish to. In India, it’s not the case. Women here in our country are treated as a property which a man has bought and brought is his house by marrying her. Women have to fulfill their husband’s desires, just like a prostitute. It’s like a man is taking services from women by keeping her in his house. That exactly matches with that of prostitutes. People then find marriage the only way to have pleasures of sex is by marrying where consent of women is not required. In India, marriage has got a compact meaning. A place where crimes with women are increasing day by day in which plenty of women get justice, there is another situation where women can’t even get right to prosecute her husband.
Condition of Women in India:
Discrimination along with violence against women starts from the mother’s womb. Discrimination differs from molestation, rape, kidnapping, sexual harassment at different places from home to the workplace; they aren’t safe anywhere because of people around them. They are expected to provide sexual services according to the desires and needs of their men. Each year more than 15,000 cases belonging to forced sex are reported to criminal justice agencies. Most of these are committed by their family members, relatives, friends, or so. The report says that one in three women is coerced into sex, beaten, abused by their partner in the lifetime. Women usually get controlled by someone or the other in their whole life, like father, husband, or son, and lack in establishing their own identity and stamp. No society can progress with men alone, and such a society can be laid down stunted or arrested developments. India, a tradition bound society where women have been physically, socially, economically, and sexually exploited for centuries. These things are done in extreme situations, sometimes results in death.
Now, the concern is growing about the equal rights of men and women, and that feminism cannot be delinked from the national developmental schemes. Among all, the most heinous crime against women is rape, be it inside the home or outside home i.e. rape or marital rape. It is regarded as the gravest crime by all societies throughout the globe. It causes emotional as well as physical harm throughout the victim’s life span. Rape reflects the blueprint of evolving social values, practices, understanding, and the most important development. In 2015, 34,651 cases of rape were reported under Section 376 of IPC, excluding those under POSCO Act, 2012. The number of cases registered under rape is increasing year by year, like in 2012 24,923 cases, in 2013 33,707, in 2014 36, 737 rapes were reported. These numbers don’t ever cover cases of Marital Rape or the POSCO Act, 2012, and many cases are not reported because of different reasons like fear of losing life or reputation, exposing their own rape incident to everyone, and it goes like this way. Apart from this, 10,000 cases on dowry are reported every year. Cases of Sexual Harassment have been increased to 1 lakh per year. Cases registered of cruelty by relatives or husband is approximately about 1.4 lakh per year. 2500 cases of trafficking of women were registered in 2015.
Marital Rape- Need for Criminalization:
Every year lakhs of cases are registered by women against different crimes of which they become the victim unknowingly, and without any fault on their part. From the stats shared above, it can be easily understood that most of the crime of which women become a victim is performed by their relatives or the one connected to their relatives along with their relatives. In this case, even rape done inside the house is not counted at all. The most alarming and growing concern here is that women are not safe anywhere. Though there are some chances of getting justice of crime such as rape done by a stranger on streets, they can’t even think of prosecuting her husband, as laws don’t support them. Due to this, women justify and consider themselves as subservient to her husband. This violates their fundamental rights as well, which has been discussed below.
Lack of criminalization of Marital Rape is a violation of the fundamental rights of a woman, especially under Article 14 and 21 of the Indian Constitution.
Article 14 of the Constitution of India states that “the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India”. Though equal treatment is given according to law, it acts as discrimination against female victims who is raped by her husband. Marital Rape occurs within the private sphere of marriage, but its state responsibility to enter into it and solve the issues it arose. Consent, the most important part of differentiating rape from sexual intercourse as every intercourse is not rape, in case of marital rape can be treated in three ways. Firstly, it will be presumed that the victim had given consent, and leave it on the victim to rebut that consent. Secondly, it will be presumed that the victim hadn’t given consent, and leave it on the accused to prove that consent. Third and last, to bring a system will be required to review existing principles provided in evidence law, especially in cases of marital rape. At a time when IPC was drafted women were not considered an independent legal entity. But that’s not the case now. In modern times, women are and considered an independent legal entity. Supreme Court in the case of State of Kansas v. Derek Schmidt held that ‘women have the right to control her body’. If we see from this perspective then she has the right to have intercourse or deny it.
Exception 2 of Section 375 of IPC differentiates between married and unmarried women, violating Article 14 of the Constitution. In the case of Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, it was held that classification under Article 14 is subject to a reasonableness test to be only passed with the objective that the provision or the Act seeks to achieve. But non-criminalization of rape by the husband of his wife destroys the basic purpose of protecting women from such an inhuman crime of rape. Exception 2 of Section 375 encourages the husband to establish sexual intercourse relationship with their wives forcefully.
Article 21 of the Indian Constitution states that ‘no person shall be denied of his life and personal liberty except according to the procedure established by law’. Supreme Court in its various judgments extended the right to life in broader aspects like the right to health, dignity, privacy, safe environment, safe living condition, and many others as well. In the case of State of Karnataka v. Krishnappa, SC held that ‘sexual violence alone with being a dehumanizing act is also an unlawful intrusion of right to privacy and sanctity of a female. Further, it was said that non-consensual sexual intercourse amounts to physical along with sexual violence. In the case of Suchita v. Chandigarh Administration, it was held that right to make choices regarding sexual activity with that of personal liberty, bodily integrity, dignity, privacy comes under Article 21 of the Indian Constitution.
Further, supporting the argument for criminalizing marital rape, the case of Justice K.S. Puttuswamy v. Union of India plays an important role in which the right to privacy was considered as a fundamental right which includes decisional privacy to make decisions consisting of one’s sexual or procreative nature and intimate relations. In the case of Govind v. State of M.P. and Kharak Singh v. State of U.P., forced sexual cohabitation was considered as a violation of fundamental right as the right to abstain from intercourse is a recognized principle of Indian Constitutional Jurisprudence.
All these above discussed cases don’t discriminate against the rights of a married woman with unmarried women, neither there is any contrary ruling that an individual’s right to privacy is lost by marital association. Other than this, all the judgments held didn’t exclude married women within its scope. Courts in the many of the cases, like C.E.S.C. Ltd. v. Subhash Chandra it was held that the right to life includes the right to live with human dignity. What more can snatch the dignity of women than forcibly having intercourse or raping her? It is a shame for whole the human civilization, which is not even able to criminalize in India.
In countries where marital rape has been criminalized is only of the basis of the definition of rape. But in India, marital rape even satisfies the condition of rape and along with that, it violates the fundamental rights of women, still not criminalized in India. It’s time for the Indian Jurisprudence to understand the inhuman and brutal nature of this crime and of the exception of rape, and strike it down.
Marital Rape is the most brutal crime against the women, in which the body of women is considered as property by their husband and is exploited as per their husband’s choice. It has already been criminalized in many countries of the world by ignoring the current relationship among husband and wife, and focusing on the most important aspect which makes rape different from sexual intercourse, i.e. consent. In other countries like Poland, the USA, England this mere fact is enough to make the husband guilty of raping her. But that’s not the case with India. In India, marriage is considered as a sacrament and likewise embedded within the mindset of people living in society. Marital Rape though having all essential conditions couldn’t be regarded as a crime as here the relationship is given more value than human dignity, inhuman nature, and even laws. As no law exists in India which could deny marital rape being a crime legally. Except like the present case where it is counted as an exception even being violative of fundamental rights given under Article 14 and 21 of the Indian Constitution. The Condition of women is degrading day by day along with the increase in the number of cases of crime done against them. In these crimes, there is no record of crimes such as marital rape on which any women can’t even ask for a remedy. Just what she can do is to tolerate and get used by their husband. Even not a single judgment was given on privacy, dignity, or so exempts married women from it. But crimes such as marital rape violate every one of those. Now it’s high time that marriage should be given a broader meaning, and meaning of marriage as understood by husbands should change. For this, Indian Jurisprudence needs to understand and analyze the situation with a broader scope and strike such crime which goes against the Indian Constitutional Jurisprudence.
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