Truth be told, survey[1] reveal that one in three married women have experienced some sort of violence from their spouse. Marriages are not permanent and unconditional consent for sexual relations. While the definition of marital rape can differ place to place, circumstances to circumstances. This serious and prevalent violence can be said as any undesired/unwanted intercourse or penetration which can qualify to be vaginal, anal, or oral committed by force or threat of force when the unwilling party (wife) is not in position to consent for being a party in such an act.
Marital rape when seen as form of violence can be called as grave form of Intimate Partner Violence( IPV )[2]. This felony may be found in any set up of marriage and the only thing which forms base for this act is valid marriage. There is this what we say pervasiveness of such crime. This violence is committed most frequently as a result of obligations arising out of marital relationship between perpetrator and victim.
The reason why I view this offence as ‘covert crime’ is the fact that even though this severe violence has been prevalent in encroaching upon the rights and modesty of wife, it is to say with indignation that there has been relatively less incidence of attention on commission of this grave act from social scientists, practitioners, the criminal justice system and other bodies which someway or other may have more or less influence on how such crime persists. One of the prominent anomaly responsible for bringing in existence the marital rape is that in historical times the husband was master to the wife and had unchecked control over her body. This left unfathomable space for exploitation of wife at hands of her husband. Women were mere regarded as property with ownership resting in the hands of husband and obviously a person could not be identified to violate his own property no matter how gravely the property i.e., wife was treated. It is of paramount importance to see how the said offence is not just confined to be defined as sexual corporal violence. In fact, it robs the victim of their modesty, right, comfort, reputation and trust and thus makes this crime more gruesome. Marital rape is sheer act of violation of the dignity of woman. In case of BODHISATTVA GAUTAM V. SHUBHA CHAKRABORTY[3], the Hon’ble Supreme Court observed such act of rape as deathless shame and gruesome crime doing death to human dignity.
Almost all the rights of wife were subsumed by the husband through the instrument of marriage. The said offence breaches upon several human rights which are regarded as inalienable. It is for these reasons that rape by husband cannot be measured just within the boundaries wherein it is merely held as perpetration of cruelty by way of forced sexual intercourse on wife when wife by any reason denies participating in such an act. It grossly violates not only conjugal rights but also breaches numerable human rights having global recognition and ramifications. There are some well accepted studies[4] showing this violation.
In Indian context, the recommendations[5] of J.S. Verma committee are of vital importance. On December 23, 2012, a three-member committee headed by justice J.S. Verma, former chief justice of the Supreme Court of India, was constituted in aftermath of Nirbhaya rape case to recommend amendments in domain of criminal law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The other members which committee comprised of were justice Leila Seth, former judge of the High Court and Gopal Subramanian, former solicitor general of India. The committee submitted its report on January 23, 2013. It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms. To summarize recommendations of committee here are the following points:
1. A rape crisis cell should be set up. The cell should be immediately notified when an FIR in relation to sexual assault is made. The cell must provide legal assistance to the victim.
2. All police stations should have CCTVs at the entrance and in the questioning room.
3. A complainant should be able to file FIRs online.
4. Police officers should be duty bound to assist victims of sexual offences irrespective of the crime’s jurisdiction.
5. Members of the public who help the victims should not be treated as wrongdoers.
6. The police should be trained to deal with sexual offences appropriately.
7. Number of police personnel should be increased. Community policing should be developed by providing training to volunteers and so on…
INTERPRETING MARITAL RAPE
Those who voice for recognition and criminalization of Marital rape have hefty arguments to contend with. But it is noteworthy to see why someone would not recognize and advocate for criminalization of marital rape. On the one hand some people clearly fail to get in their heads what the offence of marital rape really means and on the other hand some deny to voice for its criminalization as for them probably the fear of possibility of misuse of such law criminalizing marital rape outweighs or perhaps far outweighs the justice which would be served to the victims of such heinous crime and the potential of such law in bringing about reformative changes by discouraging and awarding proportionate punishments to the convicts through retributive justice system.
Some of arguments that stand in way of criminalization of marital rape:
1. The union government argued before Delhi high Court in its submission that criminalizing rape can thwart the marriage institution and become an easier tool for harassing spouses and dragging them to Court.
2. Justice Deepak Mishra, the former chief justice of India said that “in my opinion marital rape should not be regarded as a crime in India, as it will create anarchy in families and our country relies on its family platform for its success of upholding family values.”
3. Some say that a man’s sexual acts with his wife cannot be recorded as evidence in Court, as in such cases there is no lasting evidence.
4. It was in year 2016, when an Indian official told the Rajya Sabha that the concept of marital rape is international and could not be applied in Indian contexts due to factors such as poverty, illiteracy, social customs, faiths, and sanctity of marriages. So, there is sort of subjectivity also about marital rape about where it fits and where does not.
5. In cases of marital rape, there may be paucity of evidence as often when there is question of husband raping his wife, the wife’s testimony is only evidence of the rape.
6. DNA or semen samples would be immaterial to case as there may have been consensual sexual activity between the spouses before the happening of rape.
7. Some people can also be found of belief that wife gives an irrevocable consent in perpetuity, once she gets married based on the notion that upon marriage a wife is obligated to perform certain duties. They assume that wife carries no right to say “no” to husband.
Nevertheless, none of these arguments can stand to compensate the injury and trauma which victim spouse suffers.
In STATE OF KARNATAKA V. KRISHNAPPA (1993)[6], Hon’ble supreme Court held that, “sexual violence, as well as being humiliated, is an unlawful intrusion into the privacy and sanctity of a woman” likewise, the Court ruled that “non-consensual sexual interaction amounts to physical and sexual violence.”
Undoubtedly, there is imperative question of whether a woman or a man loses sexual autonomy-(autonomy/authority to decide if she/he wants to involve in sexual activity) or authority to consent when they marry. In this regard there is an important case titled JOSEPH SHINE V. UNION OF INDIA (2018)[7], wherein justice D.Y. chandrachud answering aforementioned question said, “I think no” meaning a woman or man do not lose their sexual autonomy when they marry. By criminalizing marital rape spouse would get the right to say “no” if and whenever they do not wish/want to indulge in sexual intercourse with their partner.
TYPES
Women experience a wide range of violence and there is not any single way through which marital rape can be committed. Marital rape is not well put when it is depicted as just tiff and tussle between husband and wife. In fact, it goes way beyond and deeper and often involves grievous elements of severe physical violence, threats of violence and even use of weapons by men in most cases against their partner. So, in one way or the other marital rape can cover all those alarming causes which may havoc the institution of marriage.
In some cases, the violence can even escalate to murder. While marital rape can take several forms, here is broad classification:
• FORCE-ONLY RAPE: As the name speaks, this form of rape involves exerting power and domination over the victim. In incident of this type of rape, the husband employees the degree of physical force required to succeed in raping the victim. The use of force for attacks typically occurs owing to the refusal of wife for engaging in sexual intercourse. Something which incites this kind of sex crime is lust to dominate and control victim in sex. This form of rape is more common in marriages which sort of lacks in other occurrences of INTIMATE PARTNER VIOLENCE(IPV)
• BATTERING RAPE: This form of rape involves sexual and physical violence. The victim may be battered by her husband prior to or during rape. The use of physical force may exceed what is required to rape the victim. Unfortunately, most reported marital rapes fall in this category. There may also be involvement of lots of verbal abuse and corporal battering alcohol or drug abuse habits may be factors triggering such violence.
• OBSESSIVE/SADISTIC RAPE: In set-up of marriage this form of rape comprises torturing of wife by husband and doing of acts of sexual perversion against victim. When we talk of physical violence which more and less forms the core of all forms of rape, this form of marital rape is no exception but what makes it different and even unpredictable and weird is involvement of bizarre sexual obsessions which provide surface to husband to commit such heinous and sadistic act. Extreme consumption of pornography and fetishes are triggering elements which influence the husband so much so that he employes blatant force on his wife to perform deviant and/or painful sexual acts and there are many other ways through which marital rape can take place and perhaps go unaddressed.
CONSENT
The institution of marriage cannot be allowed to sanction force and violence. It is indeed important to know what consent means as it builds foundation for better understanding of the said offence. To put simply, consent means giving permission for something to happen without threat, force, coercion, intoxication. As discussed in previous parts women do not loose autonomy and privacy after they are married and hence it is up to her whether she wants to involve in any sexual activity or not. There should not be any intrusion into that autonomy. Because men’s rea is necessary element to be proved to constitute a crime, therefore it proves the man is aware that woman is not consenting for getting involved in sexual activity. Section 5(i)(b) of HINDU MARRIAGE ACT, 1955[8] specifies consent during the time of marriage.
GLOBAL OVERVIEW
We as a nation need to learn global implications of both criminalizing and not criminalizing marital rape and message it conveys to whole globe. Concomitantly, we also have to learn from countries where this offence is not given immunity and awarded with severe punishments depending upon the gravity of rape between spouses. We live in well-connected world where news of happening of an event is just a click away from any corner of globe, it is for this reason that we cannot afford to miss what contemporary laws on Marital rape in several nations have to say. It is in no doubt that the perpetration can stretch its presence from anywhere to everywhere, but due to several varying factors different nations deal accordingly. So, it is important to have an international overview on Marital rape laws across the nations so as to get a macro idea on why and how to fight this serious offence. Immunity against Marital rape is common to a lot of common law countries, which derive it’s origins from the English legal system . The Marital rape exception which was brought into existence when the IPC was enacted, has been struck down by the House of Lords in year 1991. Canada brought in a law in year 1983 and South Africa did so in 1993. Australia criminalized the said offence in 1981. Laws on Marital rape differ country to country while many developed and some developing nations have already criminalized it, some still are not in state where the such gruesome delinquent act stands criminalized. Perusal of Laws on marital rape[9] in different nations is truly imperative.
URGENCY
It is high time to define the law on marital rape and bring in force the same to prevent further offences, compensate the victims of such grave violence by awarding appropriate punishment to culprits and discourage potential offenders and to uphold the values of mutual trust and compassion within the institution of marriage. The approach of judiciary and the government is divided and not integrated. The judiciary has passed on the responsibility to legislature for sake of separation of power and legislature has not played any active role on this issue. In fact, we have seen government defending its stand against criminalization of marital rape and
the contention of the government for such stand is witty and can easily be defeated . In history we have passed laws to end certain anti-women customs-sati and female infanticide to name a few. Why can’t we fight this issue?
With passing of every single day this issue is getting more pressing and decisive of India’s understanding of grave issues often involving women as victim. Recent surge in domestic and sexual violence cases against women due to pandemic-induced conditions are bringing wider picture and lay stress on why marital rape must be criminalized. Protecting the status quo of marriage and exception 2 of section 375 of IPC[10] is not in consonance with idea of we as constitutional democracy where we claim ourselves to be determined to safeguard and uphold values of liberty, privacy, modesty, dignity, freedom to name a few which are core to the Constitution of India.
CONCLUSION
Despite the fact that marital rape receives little public and scholarly attention, it is one of the most serious forms of violence between intimates. It is clear violation of Article 14 and Article 21 of the Constitution and thus it is high time that we criminalize such an act and we do have to identify all the loopholes and fix them so as to make sure no woman is helpless to let their dignity and modesty go in vain and they get exploited by their own spouse. We have seen in last few years how Hon’ble Supreme Court of India passed slew of judgements making the balance tilt in favor of women. Government should know that though there are some chances that criminalizing an act will attract false cases and unreliable claims, however, this should not be a reason that a woman loses her sexual autonomy after marriage.
- https://www.who.int/news/item/09-03-2021-devastatingly-pervasive-1-in-3-women-globally-experience-violence
- https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation
- Though capable of giving a valid consent, wife has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children (https://indiankanoon.org/doc/635068/)
- https://en.m.wikipedia.org/wiki/Marital_rape_laws_by_country#:~:text=Marital%20rape%20is%20illegal%20in,part%20of%20the%20marriage%20contract
- Exception – [Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape]
Author: Shashi Shekhar
Juris Centre 