MARITAL RAPE: A CRIMINAL OR NON-CRIMINAL OFFENSE?

“Rape by a stranger leads to a crime, rape by the husband is just fine.” This article talks about the concept related to marital rape and the various loopholes in the law governing such an offense.


Introduction

Rape in general parlance means to have sexual contact despite the unwillingness to do so. Marital rape refers to the sexual act performed by the husband with his wife, without her consent. Being a major setback in India, it is deplorable to see that marital rape has not been criminalized as yet. While most countries have changed the status of marital rape by making it a serious offense and criminalizing the same, India tends to prolong its decision and considers it a non-serious offense.


Reports ascertain that marital rape by a husband is likely to cause more damage to the mental and physical state of a woman as compared to those raped by strangers. Such an act leads to post-traumatic stress disorder as the woman has a legal relationship with the man and has to face him daily despite the abuse. The patriarchal system, culture, and traditions relating to matrimony stop most women from raising their voices, and opinions and believing in a term called “marital rape” which is considered normal due to the pressures of society and families even though such women are seethed.

It is made to believe that women have been regarded as the property of their spouse and are compelled to overlook the rape crime attempted by the spouse due to the legal relationship that exists between them.


Rape simply means a lack of consent on the part of the victim to involve in sexual intercourse. ‘Consent’ is commonly assumed when the victim and the person committing the offense are married. It is deemed to be an implied consent that comes with a woman when she is married, to give away her body, mind, and soul permissible to be controlled and dictated on the mood and terms of her “better half”. Our legislatures have also been influenced by such practices and thus the offender, if he is married to the victim, is protected by the rape crime by his spouse’s right to marry.


Historical view

The concept of implied consent comes from the Doctrine of Hale. Chief Justice Sir Mathew Hale’s book The History of the Please of the Crown which was published in 1736 states that “The husband cannot be guilty of raping his legal wife because the wife has given up herself to the husband through marriage and mutual consent.” The British Colonies have adopted this theory and it is inculcated in the British Common Law System as well.

Another principle that supported this is the Doctrine of Coverture. The doctrine held that during the birth of a female, her legal identity depended on her father and after marriage on her husband, and they were considered to be one. Thus no legal identity was given to a woman which implies that her legal identity depended on the male members of the family.


However, in India, the Age of Consent was directly related to the Age of Marriage. Child marriage was a common practice back then and the Indian Social Reformers passed a movement to stop this practice by way of legislation and other reforms. Thus, in the latter half of the nineteenth century, the age of consent rose to 12 years, thus increasing the age of marriage.

Despite the perpetual increase in both age of consent and the age of marriage till 1978, the norms relating to child marriage were not stringent and thus families were allowed to perform the marriage of girls below the age permissible. This brought back the sexual legal right of a husband over an underage girl.

Therefore, sexual intercourse with married as well as unmarried girls irrespective of consent was a normal practice.


Status of Marital rape in India in 2022

India remains amongst the 36 nations which have not criminalized marital rape.

The definition of rape given in Section 375 of the Indian Penal Code, includes sexual assault involving intercourse with a woman without her consent.

However, there is an exception to Section 375 of the Indian Penal code. Exception 2 states that unwilling intercourse between a husband and his wife does not tantamount to “rape” as per the definition given in Section 375. Sexual intercourse with one’s wife who is above the age of 15 won’t constitute rape. As per the Criminal Amendment Act of 2013, the legal age of consent was increased from 15 to 18 years.


This similar law recognizes and has stringent provisions and punishments corresponding to the rape of unmarried women by strangers but it does not recognize the hideousness of rape when it comes to a married woman. As per the current law in force, a wife is presumed to give perpetual consent to a man to have sexual intercourse with her after entering into marital relations.


In today’s scenario, a plethora of petitions have been filed with the Delhi High Court relating to the right of women in this case and challenging the exception to Section 375 in the Indian Penal Code. Such petitions have been filed by various NGOs RIT Foundation and the All India Democratic Women’s Association.


In the recent case of RIT Foundation v Union of India, there was a split judgment and it was decided that the case has to be taken up by the legislature. The legislature has the authority to investigate such cases and the process to be followed after it. It was further said that such cases do not belong to the court and have to be addressed by the higher authorities.


Reasons why Marital rape has not been criminalized in India

There are numerous reasons why India does not fall into the category of nations that have considered rape as rape, be it with a married or unmarried woman.

Taking the step to strike down Exception 2 of Section 375 of the Indian Penal Code would lead to several controversies since the gray areas persist while dealing with this particular issue.


One of the reasons is that such a decision will “destabilize the institution of marriage”, as termed by one of the advocates, marriage in the Indian culture has always been sacred and it depends on family values. Thus, due to the social values followed by the families, this offense cannot be criminalized.

A woman has always been treated as an individual whose whole and sole purpose is to survive at the will and satisfaction of her spouse and the term ‘Kanyadaan’ means giving away the daughter to the husband. It means donating the girl to a different family, which again, is done without her consent.

These practices have made it difficult to believe that when a woman says a ‘NO’ it means an outright ‘NO’ whether it comes from a married woman or unmarried, a divorcee or a minor. Misogyny and prioritizing the needs of the husband have become problematic and lead to the discrimination of men and women which is unconstitutional.


Another reason for not striking down this provision is that many women could use the criminalization of marital rape to falsely accuse their husbands, according to men’s rights activists. The male would have to go through sheer harassment and the victim would not be able to prove his innocence in such a case because the relationship between the husband and wife is sexual and the accusation made by the wife shall stand as the witness of the case.


Violation of the laws

The RIT foundation case of 2015 has led us to believe that Article 14 of the constitution talks about equality of law and equal protection of the law. The exception is simply a contradiction to this article because of the disparity between married women and unmarried, for the same non-consensual acts of sexual intercourse. There is no appropriate reason or connection between this and what the section on rape talks about. Thus, Article 14 is violated.


This injustice has also violated Article 21 which mentions the right to protection of life and personal freedom and liberty by all individuals. The life, freedom, and protection of women have been at stake due to the based on the assumption that marriage entails consent to sexual activity. The woman feels insecure and unsafe due to the brutality and mistreatment and thus disposes herself into the hands of her husband.

In Suchita Srivastava v Chandigarh Administration, the supreme created a nexus between the right to personal freedom, liberty, privacy, and bodily integrity with the right to make choices about sexual activity.


The Protection of Women from Domestic Violence Act, of 2005 recognizes the seriousness of marital rape and is taken as a form of domestic violence. Women often resort to this method of raising their rights and sue their husbands for marital rape through the legal division.

Marital rape is considered irrational leaving the victim unsafe and remorseful. However, this law does not expressly prohibit marital rape and it has several flaws in it. The laws protecting the offender (husband) are inadequate and ineffective and such laws and methods need to be understood with their seriousness of causing harm and mental agony in the mind and body of a woman.


Conclusion

Every one out of three women has been a victim of this offense. Poland was the first country to criminalize marital rape followed by Australia and several other Scandinavian countries. Positive legal reforms have been inculcated in the system and several laws have been passed to protect the rights of women. Due to the undeniable consequences, it is essential to make marital rape a serious offense by all the countries which still recognize this as an unpunishable and non-serious matter. Such matters require government intervention and the legislation must play an active role in making decisions about the same. Marriage does not mean that a woman is readily available to fulfill her husband’s sexual desires. There must be consensus and mutual consent determining such acts.



This article is written by Mehrzin Patel of The Institute of Company Secretaries of India.

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