Rape is rape irrespective of whether it is committed within or without the structure of marriage

UNDERSTANDING MARITAL RAPE: 

According to Hindu law, marriage is considered a sacred bond between two people and the relationship established through marriage is a sacrosanct relationship. As per this law, the institution of marriage is pious and sacred but unlike the sacred concept and belief, it allows for an evil to be committed under the shade provided by this supposedly sacred structure. Marital rape is a phenomenon wherein the husband forces himself on his wife for sexual pleasure disregarding the wife’s consent to it. It is the most common and repugnant form of masochism in Indian society which is hidden behind the curtain of marriage. Considering the situation of a woman in a marriage being raped by her husband makes the preached sanctity a hypocritical and insensitive stance. Turning a blind eye towards the suffering,  a victim of marital rape faces the well-hidden physical as well as psychological impact of this otherwise heinous and socially abhorred act.  The effects include physical pains such as injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue whereas the psychological impact includes suicidal ideation, intense fear, anxiety, depression, eating disorders, low self- esteem.

The violence of any form, within the institution of marriage, goes against everything this structure of trust aims to build. Sexual violence, being one of the most extreme and effective forms of control in a male-dominated society, has the effect of silencing a victim and thus perpetuating patriarchy with little to no opposition. Thereby, helping to maintain the status- quo of gender inequality, the subjugation of women and the control of their existence. This form of violence is the most effective way of entrenching this vice as it allows new generations to pick it up. 

The family is considered as a retreat, where individuals are able to find security and shelter, private heaven where peace and harmony prevails. The fundamental structure of it is gravely affected if any member of the family faces abuse of this sort as it affects the whole family and not just the individual. It allows the inculcation of this vice in a direct and indirect form. Directly, it allows this vice to be picked up and considered as acceptable behaviour and indirectly, it may lead a child to resign to the evil that her life is. 

MARITAL RAPE: A MYTH OR REALITY?

A 2011 study conducted by the UN on the conditions of women, stated that one in every ten women has suffered sexual assault by their husband and at least one in three has faced physical violence from the husband or an intimate partner. According to a new study which reasserts these frightening numbers, stated that the number of women sexually assaulted by their husbands is 40 times the number of women who suffer such violence from others. 

Yet the Indian Legislatures have eschewed on these appalling aspects and have so far found marital rape as not violating any laws, thus giving license to the husbands or intimate partners to have forceful sexual intercourse with their wives or partners, whatever the case may be. The very institution of marriage is inclined towards a patriarchal mindset as it has since time immemorial, provided a platform to commit sexual assault, dowry, bride burning and other forms of brutality in the household and marital rape is one such brutality which is no lesser appalling. This patriarchy  can be seen  in the wordings of the provision of the Criminal Amendment Act, 2013 which purports that “ Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This very amendment has given feathers to the men of our society to perpetuate women and still remain unanswerable this blatant violation of the inner-sanctity of a woman. Sexual assault in India is grossly “under-reported” with only an estimated 1% reporting of instances of marital rape and 6% of rape by other persons. This shows how prevalent the problem is and how conveniently it is excused.

Section 375 of Indian Penal Code 1860 defines rape as unlawful sexual intercourse between a man and a woman without the consent of the woman or against her will under any of the circumstances enumerated under the section. The public outrage after the infamous 2012 December case of Nirbhaya made Law Commission form a committee called J S Verma to make amendments to criminal law for ensuring quicker trial of and harsher punishment to the person accused of committing a sexual assault of an extreme nature on women.

The committee was mandated to submit its report within thirty days from the date of notification. The committee in Report proposed revision or substitution of Section 375, 376, 376 A to 376 D of the Indian penal code for making the law relating to sexual assault on women and underage females more effective and provide a strong deterrent. Most of these recommendations were given legislative effect. But the abovementioned Sections miserably fails to protect married women from the offence of rape inside a marriage. 

MARITAL RAPE: AN INFRINGNMENT TO RIGHTS OF WOMEN

The initial rationale for the marital exemption clause is based on Sir Matthew Hale’s statement made in 1678 that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” The premise of the statement was based upon the common law notion of marital unity that husband and wife were one and a married man could not be held liable for raping himself. The archaic notion is still persisting in most parts of the world as the majority of the countries provide “criminal immunity” to the husbands if they commit the act of rape to their wives. In the majority of countries with available data, less than 40% of the women who experience violence seek the help of any sort.

The legal reluctance is the product of the social notion that the wives are the properties of their husbands and that is the product of the inbuilt patriarchal mindset that we are born with and the society that we are a part of. Considering wives a sexual property of their husbands is the heritage given by patriarchy. Sexual assault within marriage is arguably the most mystified of abuses perpetrated within the crime of rape.

The legislative development in case of marital rape and the age of consent: For thirty years, after the enactment of IPC, 1860, rape law remained the same. The later change was owing to a number of cases in Bengal in which the child-wife died due to consummation of the marriage. Out of these, the most notable was Queen Empress v. Haree Mohan Mythee. This case was a pathetic story of Phulmonee Dassee, who was eleven years and three months old when she died as a result of rape committed on her by her husband. The medical evidence showed that Phulmonee had died of bleeding caused by the rupturing of the vagina. In this case, the rape of a child-wife was severely condemned and it was held that the husband did not have the right to consummation without regard to the question of safety.

In the present legal scenario in India, marital rape exists de facto but not de jure. While in other countries, either the legislature criminalized marital rape or the judiciary played an active role in recognizing it as an offence.  However, in India, the judiciary seems to be operating at the cross- purposes. In Bodhisattwa Gautam V. Subhra Chakraborty, 1966 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 enshrined in Article 21 of the Constitution”. Yet, it negates this very pronouncement by not recognising marital rape.

Violation of Article 14

Equality is impacted by pardoning these types of violations.  Our Constitution is wronged when the sanctity of marriage is chosen over the woman herself. This is in violation of Section 14 of Indian Constitution as it guarantees the 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.” Although the said provision clearly explains the meaning of “equality” as it states that the Indian constitution shall consider everyone equally irrespective of birth, gender or whatsoever and at the same time it elaborates further by reiterating that there shall be equal protection of the laws

In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a test of reasonability that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. Exception 2 frustrates the said aim of Section 375 which is to protect women and punish those who engage in the inhumane activity of rape thereby not being a reasonable classification.

Violation of 21

Article 21 states that “no person shall be denied of his/her life and personal liberty except according to the procedure established by law.” The Supreme Court has interpreted this clause various times and has gone beyond the literal interpretation of personal liberty. Article 21 includes the right to health, privacy, dignity, hygiene, safe environment etc.

In The State of Karnataka v. Krishnappa, the Supreme Court held that “sexual violence apart from being a dehumanizing act, is an unlawful intrusion of the right to privacy and sanctity of a female.” Further, it was said that non-consesual sexual intercourse will amount to sexual and physical violence. However, this statement still presents an ambiguous stand on the law in case of marital rape. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” Forced sexual cohabitation is a violation of that fundamental right.

Therefore, Exception 2 has been an instrumental provision in infringing Article 21 of the Indian Constitution and it invalidates the said judgement which clearly states in the abovementioned cases which purported that sexual violence of any kind against women irrespective of her marital status would be an infringement to Article 21.

INTERNATIONAL SCENARIO

India is a state party and has ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Article 1 of CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status”. Exception 2 of Section 375 of the IPC, which reads “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”, legitimizing violence against women on the basis of their marital status, is inconsistent with Article 1.

Australia is one of the many countries who recognised the violence against women and thereby understood the lack ness of knowledge amongst their society regarding the dignity of women notwithstanding her marital status and said obligations of having sexual intercourse with their spouse and duly reinforced her rights. Even after several oppositions against the bill for criminalising marital rape, the then government acknowledged the need to put an end to the discourse and criminalised marital rape in Australian jurisdiction by 1994. Similarly, other countries like Czechoslovakia, Barbados, Argentina including a few Asian nations such as Sri Lanka have made it an offence. 

In PGA v The Queen (2012) 245 CLR 355, the High Court was asked to determine whether rape in marriage was an offence under the common law of Australia in 1963. This is a landmark case which debated over several issues regarding the same. In determining whether the immunity was part of the common law in 1963, three significant issues are considered: the status and authority of Hale’s proposition; the basis of the marital immunity; and the implications of stating the common law in 2012 in terms that differ from understandings of the law that prevailed in 1963. The majority, in this case, stated that criminalising conduct which was legal when it was pardoned is not correct. This was a highly disputed judgement by the high court in recent times. 

CONCLUSIVE REMARK:

India’s strigency in this sphere is due to several reasons, some of which are as follows:

1. If such laws which criminalise marital rape are formed then that will be a prime reason for breaking down of marriage: Any act which significantly degrades the dignity of women in a marriage is the act which is degrading the marital institution as well. Muslim Laws consider marriage as a contract whereas Hindu law partially acknowledges marriage as a contract which means if any act wherein any party is unduly influenced, coerced or forced and frauded shall have the effect of voiding the contract. Especially in the case of marriage, it will be a breach of trust, making the contract voidable on the party being frauded, unduly influenced or coerced. Marriage establishes a relationship of trust but when a person in a marriage perpetrated acts of violence, this automatically breaks that trust as well as the marriage. That marriage can only satisfy the societal reputation and continue as a sham
2. The laws against marital rape shall be a ground to take revenge or vengeance by a vindictive wife: These laws shall obliterate the gender biases and patriarchy sublimely existing in our society. It will re-establish the idea of consent and therefore men will relinquish their claim over their wives or women in the society. The concept of “vindictive wife” was developed to show the wife, not as a victim of violence, but a woman who refused to give control to the masculinity around her. To take revenge from her husband the wife puts false accusations on the husband in order to punish him. Law is about interpretations and the basic purpose of the law is to provide justice and ironically in all provisions of law lies ambiguity and interpretation. Thus, if a person is accused of murder, the court will reason it to the extent where it is satisfied beyond any reasonable doubt in giving its judgement and the same goes for a false case/accusation of marital rape. One cannot allow a crime to be perpetuated due to an irrational and frankly not important fear of misuse.
3. The final contention and a reason for discourse is the difficulty of proving the crime: Any crime which is difficult in proving cannot be a justifiable reason to not consider it a crime. A crime which is heinous and disrespectful shall be considered the same way and any justification against not considering the same crime is vague. 

Laws which are based on rudimentary beliefs and are becoming a reason for someone to perpetrate harm should be scrapped down. They are not protecting the institution but only damaging it. Therefore, I would like to add that our legal system has the strength to amend 

Marital rape should be recognized by Parliament as an offence under the Indian Penal Code. The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the India Penal Code. Along with that, it should be added in Section 10 and 13 of the Hindu Marriage Act as grounds for judicial separation and divorce. The decree of divorce should be granted to the wife to safeguard herself from any further torture or violence of any sort when the charges against the husband are proved, then the case shall fall for divorce under cruelty or rape so the laws should clarify the position of marital rape as a separate offence with concrete punishment. Making it a ground for divorce is not a demand but a need to not only safeguard the lives of women but also save them from mishaps. These rudimentary thoughts and understanding are repugnant and women of the 21st century are empowered and so it is the responsibility of the state to safeguard the basic rights of women.