Marriages are forms of intimate partner relationships and in India they occupy a position of sanctity in the social life of people. Even though they are sacred and private, weddings have always been characterized by uneven influence relationships.
There are numerous aspects that feminists from various fields have observed that could have resulted in the rise of such inequality. Most women in our culture, where men predominate, are just objects. We all are aware of how women confront violence within the four walls of their house. Time and again we have recognized the phrase domestic violence as just physical beatings. We never examined the practices that force women to inconvenient sex with their spouse. The act of sexual activity between a husband and wife without the wife's consent is known as marital rape or spousal rape, and it is not always accompanied by bodily harm. The first instance of marital rape was brought to light in Phulmoni Devi Case 1881, when it was evident that the bride's ruptured vagina was the cause of her death. The husband was eventually cleared of the rape allegation since marital rape was fully free from the scope of penal legislation.
What is marital rape?
Marital Rape is a sexual intercourse by the victim's husband is referred to as marital rape.
Rape continues to be defined as engaging in sexual activity or penetrating another person's body without that person's consent. Therefore, establishing the absence of consent is a crucial component in proving the crime of rape. It is frequently the victim's responsibility to demonstrate the absence of consent. When it comes to minors, as example, it is sometimes assumed that consent doesn't exist because the law assumes they are unable to provide their assent for such sexual actions. However, there are also circumstances where consent is accepted as fact. This assumption frequently arises when the victim and the offender are married. In such circumstances, the concept of marital rape turns into taboo[1].
Marital rape in India
Exception 2 of sec.375[2] of the IPC (‘exception clause’) when it comes to minors, the law frequently presumes that consent doesn't exist since it believes they are unable to provide their assent to such sexual acts.
However, there are some situations when consent is taken for granted. When the victim and the offender are married, this presumption commonly appears. In these situations, the idea of marital rape becomes unacceptable.
Reports of the Law Commissions of India
The 42nd Law Commission Report[3] was the first to address this topic. This study offered two crucial recommendations. First, it stated that the exception clause could not be used when a husband and wife were legally separated. Although this was a commendable recommendation, it wasn't apparent why it was made.
In such a circumstance, the marriage officially continues, and if the husband engages in sexual activity with her against her will or her permission, he cannot be charged with the crime of rape," it was said in the report. This doesn't seem to be correct.
When other acts of sexual assault committed by a husband against a woman were made illegal, it was contended, there was no justification for rape to be exempt from the rule of law. This argument was rejected by the Law Commission because it believed that making marital rape illegal would "excessively interfere with the institution of marriage." This study clarifies how marital rape and the sacredness of the marriage institution interact.
In 2012, in a shift from prior conversations, a committee appointed by Justice J.S. Verma[4] argued in favour of making marital rape a crime.
This committee was established in response to the widespread national movement to improve the criminal justice system's ability to handle cases of severe sexual assault against women. The study made the recommendation that marital rape should be made an offense. This was suggested in two different ways. The initial proposal was to simply remove the exception clause. The second idea was that the law should expressly indicate that a married or other like status is not a legitimate defense for the accused, is not important for establishing whether assent was given, and is not a mitigating circumstance when it comes to sentence.
The Parliament Standing Committee on Home Affairs in its 167th Report[5] (‘Standing Committee Report’) revised this Bill, 2012 and also organized public consultations.
Here, it was suggested that Sec. 375 must be suitably amended to delete the exception clause. However, the Standing Committee refused to accept this recommendation. First, according to the Standing Committee Report, doing so would put "the entire family system under greater stress and the committee may perhaps be inflicting more injustice." Second, the Committee reasoned that there were already enough remedies available since the family could handle such matters on its own and because the concept of cruelty as defined by Section 498A of the IPC provided a remedy under criminal law. The Ministry of Home Affairs recently, in 2015[6], reaffirmed its position in response to a Member of Parliament's proposed measure that sought to criminalise marital rape. It was "considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context,"
Latest Legislative Development
A bill titled Women’s Sexual, Reproductive and Menstrual Rights Bill 2018[7]was introduced
in Lower house of Sabha which recommended to make marital rape as a crime and abolishment of exception 2 of Sec. 375 IPC.
Bill recommended that after the proviso to explanation 2, the following proviso shall be inserted-“Provided that the women's ethnicity, religion, caste, education, profession, clothing preference, entertainment preference, social circle, personal opinion, past sexual conduct or any other related grounds shall not be a reason to presume her consent to the sexual activity
Why not criminalise Marital Rape
There are three broad arguments against criminalisation of marital rape.
The first is with relation to the intention of safeguarding the institution of marriage and, thus, refraining from tampering with it in order to maintain the institution's sacredness. Both the IPC and the Law Commission studies indicate this. The second deals with the another remedies that already in its existence for a woman to seek remedy within the family and in the law itself such as sec.498A of the IPC[8], the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA, 2005’) and various other personal laws dealing with marriage and divorce. The third is concerned with Indian cultural norms and emphasises how these values should prevent us from making marital rape a crime.
The Legal Remedies available to Marital Rape vicims
Criminal law
The most pertinent law, Section 498A of the IPC, is frequently suggested as a suitable option for genuine criminalization.
The IPC's 498A amendment was added particularly to address situations of cruelty to women. We contend that this is insufficient for two reasons, though. Our first argument is that there is a clear distinction between cruelty and rape. Rape can be distinguished from a cruelty offence by its nature and deed. The second reason is that incidents of rape cannot be adequately addressed in this section.
Civil Law
In arguments about gender-based violence, the civil law remedies occupy an unpleasant space. Restitution of conjugal rights is still in use in India. Men typically use this to coerce their spouses into beginning loving relationships again.
The term "cruelty" is recognised as a basis for divorce in all personal religious laws. However, "sexual violence" is not specifically included as a reason for divorce.
Under Section 13 of the Hindu Marriage Act of 1955[9]women have the right to apply for divorce or judicial separation on the grounds of cruelty.
Independent Thought v. Union of India (‘Independent Thought’)[10], the Court partly struck down a part of the exception clause in sec.375 of IPC. Under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), it is illegal to have sexual intercourse with a child under the age of eighteen. However, the exception clause allows for this in the event a girl is married and is between the ages of fifteen to eighteen.
The Court noted that this differential treatment to the girl on the basis of marriage was wholly unconstitutional. This was because marriage did not serve as a reasonable classification. Although the Court was keen on noting that the judgment was not for adult marital rape, it is encouraging that the Court has recognised that women’s rights cannot be subsumed on the basis of marriage.
Conclusion
It might be inferred that there is a need for a legislation to punish marital rapes after examining several social, legal, constitutional, or judicial aspects of marital rape.
Women have historically and continue to be regarded as though they are objects or pieces of property. The right to privacy, which is one of the fundamental liberties guaranteed by our constitution, does not make a distinction between married and single women. Legislation or the law should thus not make a distinction between them. Another aspect is that it will be challenging to execute properly. However, lawmakers must find a middle ground and create laws that can both penalise those who are suspected of raping a spouse and help those who have been the victim of a rape.
-- [1] VIDHU VERMA, NON DISCRIMINATION AND EQUALITY IN INDIA: CONSTESTING BOUNDARIES OF SOCIAL JUSTICE 525; Saptarishi Mandal, ‘Right to Privacy’ in Naz Foundation: A Counter-Heteronormative Critique, NUJS L. REV. [2]The Indian Penal Code, 1860 [3] Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http://lawcommissionofindia.nic.in/1-50/report42.pdf. [4] JUSTICE J.S. VERMA COMMITTEE, Report of Committee on Amendments to Criminal Law [5] LOK SABHA DEBATES, Question on Marital Rape, 2016, , available at http://164.100.47.190/loksabhaquestions/annex/7/AU2872.pdf. [6] Ronald J. Berger, Patricia Searles & W. Lawrence Neuman, The Dimensions of Rape Reform Legislation, 22 LAW & SOCIETY REVIEW 329 (1988). [7]Margaret Thornton, The Public/Private Dichotomy: Gendered and Discriminatory, 18 JOURNAL OF LAW AND SOCIETY 448 (1991). [8] LOK SABHA DEBATES, Question on Marital Rape, 2016, Question No. 2872, March 15, 2016, available at http://164.100.47.190/loksabhaquestions/annex/7/AU2872.pdf. [9] Sec. 13 of Hindu Marriage Act. [10] Independent Thought v. Union of India,AIR 2017 SC 4904.
This article is written by Aanchal dhuria of Panjab University.