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Marriage – Is It A Licence to Rape in India

The foremost monstrous crime that can be committed against a woman, a criminal offence which can be considered as the most brutal attack that can be inflicted upon virginity, youth, maternity and womanhood itself has been outlined to be “Rape”. However, the larger image to this definition always goes untold.

A wife getting ‘raped’ by her husband is still considered a taboo in India and the Indian Penal Code, 1860 still stands barefacedly chauvinistic in its approach, for it denies to visualize ‘forceful intercourse’ by the husband on his spouse as rape at all. The Personal Laws as well lay no ground for divorce based on ‘marital rape’. In these conditions where the woman has to continue living with her ‘rapist’ husband, she has to undergo the trauma of being abused-physically, mentally, psychologically and in all such ways undermining her dignity she continues to live getting raped, often in ignorance and principally, in helplessness.

This article will deal with the various aspects of this exemption clause and its scope has thus, not been restricted only to the Personal Law aspect- the Constitutional and Criminal Law aspects have been included along with a brief discussion on the Protection of Women from Domestic Violence Act, 2005.

General Overview-

Spousal rape is any unwanted sexual act by a spouse or ex-spouse, committed without consent and/or against a person’s will, obtained by force, or threat of force, intimidation, or when a person is in the state of intoxication, thus, unable to consent. These sexual acts consist of intercourse, anal or oral sex, forced sexual behavior with other individuals, and other sexual activities that are considered by the victim as degrading, undignified, painful, and unwanted.

Rape is an offence that hinges on the absence of consent of the woman. It is vital to realize that the absence of consent does not have to be only in the form of the word ‘no’. It should be presumed from the context of the situation. Within a conjugal relationship, if a woman gives consent to sexual intercourse because of threat of injury to children or herself, depriving the woman of the right to stay in her husband’s house or receive maintenance, it is not valid consent. It still amounts to rape.

TYPES OF MARITAL RAPE[2]:

There are three types of marital rape as identified by legal scholars as generally prevalent in the society, viz:

  • Force Only Rape: The term “force only rape” describes a husband who uses threats and violence only to the degree necessary to coerce sex. This type of rape usually happens in relationships where violence is predominately verbal, and/or in relationships where violence occurs only/primarily in sexual interactions.
  • Battering Rape: When beatings and rape are combined, it’s referred to as “battering rape.” The sexual abuse is part of the general pattern of psychological, verbal, emotional, economic, and physical abuse. Usually the rape happens as a continuation of the physical assault. In certain cases, the physical violence continues during sex, and the sexual act is also violent.
  • Obsessive Rape: The most openly sadistic form of rape is called “obsessive rape.” The abuser seems obsessed with sex, and the act itself is violent. In these relationships, the maltreater may use violence to become aroused.

Historical Background[3]

Historically, a person could not and to this day, cannot be criminally prosecuted for raping his spouse under the Indian legislation. This inability to prosecute a husband, criminally, relies on the common law definition of rape itself. The foundation of this exception can be traced back to the assertion made by Sir Matthew Hale, C.J., in 17th century in England.

According to Hale,

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.” [4]

This established the concept that once married; a woman does not have the right to refuse sexual intercourse with her husband. This allows right of sexual access to the married men over their wives in direct violation of the principles of human rights and provides husbands with an “approval to rape” their wives.

Current Scenario of Marital Rape[5]:

In India, according to the Ministry of Home Affairs, a crime is committed against a woman in every three minutes. The National Crime Records Bureau gives an account of 1, 85,312 crimes that were committed against women in the year 2007 – 75,930 of which were considered to be of cruelty by husband or his relatives. Torture and molestation were the most common forms of malefaction. The actual figure, however, may be ten times higher as many cases go unreported with victims not willing to speak out due to the fear of the shame and disgrace associated with being a divorced or separated woman in the traditional Indian society.

While attitude towards women in educated, urbanized areas have improved, those of rural India still remain unenlightened. Both men and women perceive violence as a part of gender relations. The United Nations Fund for Population Activities  report found that nearly 70 percent of Indian women believed that beating wife was justified under certain circumstances, such as refusal to have physical relationship or for not making food on time. In every six hours, approximately, a young married woman is burnt or beaten to death, or driven to commit suicide due to emotional abuse by her husband.

At present, studies imply that between 10% and 14% of married females are raped by their husbands. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Those women who attempted to flee became main targets for marital rape.

The scenario remains unchanged as even after the implementation of Protection of Women from Domestic Violence Act, 2005, spousal rape continues to go largely unreported and usually comes out as figures in covert polls conducted by agencies like the one carried out by AC-NIELSEN ORG-MARG for India Today’s annual sex-survey which reports that 46% of Indian women have, at some point of married life, gone through some form of sexual abuse- including marital rape.

LEGAL POSITION IN INDIA[6]

Under Personal Law:

Marriage has invariably been thought of as a social institution, and thus there has always been a social interest in protecting and preserving it, it cannot be dissolved like any ordinary contract. There are specific theories that govern the grounds on which divorce may be sought, and unless the ground is appropriated under these theories and expressly enumerated under the various Personal Laws governing the Mohammedans, Hindus, Christians and Parsis, the Court cannot pass a decree for marriage. The grounds on which the divorce can be granted are typically classified into the following theories:

  • Offence/Guilt or Fault Theory: If either of the parties is guilty of committing any matrimonial offence, the aggrieved party is entitled for divorce. The other party is supposed to be innocent. For example- if one of the parties committed adultery or treated the other party with cruelty or deserted the other party, the other party is entitled for divorce.
  • Consent Theory: This theory is based upon the view that the contract of marriage is entered into by the parties out of their free consent and volition and hence they must also be free to put an end to the marriage if both of them agree.
  • Breakdown Theory: This theory states that if the marriage is irreformably broken down and became a wreck, leaving no substance in the marriage except the form, the parties must be free to put an end to the marriage.

Marital rape is not included in any of the Personal Laws under the provisions provided for granting divorce. Though, the grounds for divorce include cruelty, however, marital rape surprisingly doesn’t come under the ambit of cruelty.

Under Constitutional Law and Criminal Law :

Rape is defined under section 375 of the IPC as:

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 wife, the wife not being under fifteen years of age, is not rape].

After scrutinizing the above definition, we come across the following facts:

Under section 375 only two groups of married women are covered by the rape legislation-

  1. those being under 15 years of age; and
  2. those who are separated from their husbands.

While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim.

However, under Section 376-A added in 1983 in the Indian Penal Code, 1860, rape of a judicially separated wife was criminalized. Thus, a husband can now be charged with and imprisoned up to 2 years, if the following elements are present-

  • there is a sexual intercourse with his wife;
  • without her consent; and
  • she is living separately from her husband, whether under a decree or custom or any usage.

Otherwise, a man is not liable for any sexual act that he forcefully performs on his spouse (except buggery), unless they are living separately under a decree of separation –despite the fact that the wife may be subjected to much sexual humiliation.

Thus, rape in India is a grievous offence, but it is an offence that is recognized only outside the boundaries of marriage.

Criticism

In India marital rape exists in practice but not legally. The following criticisms can be drawn based upon the exception clause under sec. 375 of IPC.

In Bodhisattwa Gautam v. Subhra Chakraborty[7], the Supreme Court said that,

“rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution.” Yet it negates this very pronouncement by not recognizing marital rape

The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by “right to live with human dignity” is thus, within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is seen that the exception provided under Section 375 of the Indian Penal Code, 1860 is in violation of Article 21 of the Constitution.

The Constitution under Article 14 guarantees the Fundamental Right that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”, hence protecting a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it is about her protection from rape. The exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.

According to the Indian Penal Code, 1860, it is rape, if there is a non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both, which is quite less in comparison to the punishment provided for rape outside the marriage.

The Protection of Women from Domestic Violence Act, 2005

In India, the Protection of Women from Domestic Violence Act 2005 (passed September 13 2005; entered into force October 26, 2006)[8] criminalizes marital rape as a form of domestic violence, and hence attracts much lesser jail term than non marital rape. This is the only form of penalizing marital rape in India, and it is a civil remedy and not a criminal action.

Justification to Marital Rape Exemption[9]

Traditional Justification-

  • Implied Consent and Contract Theory- A marriage constitutes a contract. The terms of this contract include a wife’s irrevocable consent to have sexual intercourse with her husband, whenever he wishes. This has fostered the belief that a husband has a “nuptial right” to sexual intercourse. According to the implied consent theory, spousal rape can never occur because all sexual contact within a marriage is assumed to be consensual.

The contract theory, is inter-twisted with the implied consent theory. Under this theory, Hale stated that when a woman marries, she waives her rights to her body because she has formed a contract with her husband that cannot be retracted and this ‘contract’ justifies any forceful demand of sexual intercourse from the husband.

  • Women as Property- Another common law origin which was a vital element in the foundation for the spousal rape exemption was the idea that a husband owned his wife as chattel. Since women were regarded as property, the common law treated rape not as a crime against women, but rather as a violation of a man’s property interest. The rape laws were concerned with protecting a husband’s property interest in his wife’s fidelity, and a father’s interest in his daughter’s virginity.
  • Marital Unity – The final common law rationale for the spousal rape exemption was that, upon marriage, the wife’s identity merged into the existence of her husband. In 1765, it was stated by Blackstone that, “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything….”[10]

This provided that a woman could not own property, make contracts, or take part in litigation. This doctrine made the rape of a woman by her husband a legal impossibility since a man could not rape ‘himself’’.

Modern Justifications

  • Not as Serious as Non-Marital Rape – Marital-rape is not considered as serious a crime as non-marital rape and is believed to be not common. But, in a survey conducted by the Joint Women Programme, it was found that, one out of seven married women had been raped by their husband at least once, and hence the frequency points out otherwise.
  • Impossible to Prove- Defendants of the exemption to marital-rape have also pointed out that marital-rape would be a crime so personal in nature that it would be difficult to prove. However, crimes such as treason and incest also require a great degree of proof, and this does not mean that the law should overlook their criminality. And also, The Protection of Women from Domestic Violence Act, 2005 lists out crimes, otherwise personal in nature, as punishable.
  • Possible Abuse for Ulterior Purpose – It is provided as a justification to the exemption to marital rape is that women would incriminate their husbands for ulterior purposes. Though it is a comparatively reasonable justification as has been witnessed in the cases relating to Dowry, where misuse of section 498 A of the Indian Penal Code, 1860, but the legal framework is designed to identify false claims, and therefore, abuse cannot be speculated unless legislation for marital rape is put into force
  • Sacred Institution of Marriage – The opinion that law should not involve itself in the sacred institution of marriage is a bad justification. At present, when divorce and separation are approachable through the court of law, this justification stands null. Also, the interference of law is less injurious to a marriage where non-consensual sex is already causing damage- as the guardian of the right to life, the law has a valid interest in taking into account violent sexual acts, and therefore, its ‘interference’ in dealing with marital rape is entirely justified.

Conclusion

The society is changing and is empowering the women around the globe. Only because a woman is married it does not mean that she lost her dignity and chastity. She is not a property or a chattel in hands of her husband. Rape the most heinous crime against the women irrespective of whether married or not. The absurdity in law that a woman can protect her Right to life and personal liberty but not her own body while in the marriage should be taken into consideration as it is violative of our constitutional guarantee. The exception clause should be removed from the Indian Penal Code 1860, and the punishment for Rape under section 376 of the Indian Penal Code should be extended to marital rape as well. There should be judicial stimulation as well.

[1] student of 5th Semester LL.B (3 Years), University Law College, Gauhati University, Guwahati (Assam), debarpita95@gmail.com.

[2] https://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Issues/Marital_Rape.pdf

[3] https://www.lawteacher.net/free-law-essays/family-law/marital-rape-should-it-be-grounds-for-divorce-law-essays.php#ftn3

[4] R v. R [1991] 4 All ER 481

[5] ibid

[6] https://www.lawteacher.net/free-law-essays/family-law/marital-rape-should-it-be-grounds-for-divorce-law-essays.php#ftn3

[7] 1996 AIR 922, 1996 SCC (1) 490 – Supreme Court of India

[8] https://indiacode.nic.in/handle/123456789/2021?locale=en

[9] https://www.lawteacher.net/free-law-essays/family-law/marital-rape-should-it-be-grounds-for-divorce-law-essays.php#ftn3

[10] the doctrine of spousal unity;

This article is authored by Arpita Deb, Student of Bachelor of Laws (LL.B) at University Law College, Gauhati University.

Also Read – Haan Ya Na – Story of Marital Rape in India

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