What is Marital Rape?
Marital Rape is a term that describes the sexual intercourse between a man and his wife without the wife’s consent. There might be a use of some force, a fear of hurt to her or to another person she cares about or any other harm implied based on prior assaults which makes a woman fear that if she resists force will be used against her. The marital rape is a crime which has been left unrecognized in the society for a considerable period of time. But with time as the awareness regarding roles and rights of women improved in the society the recognition of marital rape as a crime in the society also started. Poland was the first nation which came forward and criminalised marital rape in the year 1932 and many nations over a period of time followed this suit. Today almost 150 countries in the world have criminalised marital rape and this is a issue of great concern that India is not a part of it.
Now let’s move forward and discuss in detail about the concept of marital rape and its current scenario.
What is status of marital rape in India?
The concept of marital rape in India is still counted in those crimes which are not fully recognized yet. We do have laws in our country that are designed for the protection of women against rape. Under Indian Laws the ‘rape’ is defined as a crime under Section 3751 and criminalized under Sections 3762 of the Indian Penal Code 1860. But none of the provisions of these sections of the IPC considers marital rape as a crime rather in section 375, marital rape is given as an exception. Considering marital rape as an exception makes it clear that the concept of marital rape is highly unrecognized and ingnored in our nation.
There can be various reasons behind such an ignorance to this issue in Indian laws.
As Indian laws were created by Englishmen when ruled India. So the majority of such laws are based on British laws and Victorian Norms. And in those rules at that time women were not considered equal to men and married women did not possess a separate legal identity of their own. Thus woman was considered as a chattel of man and after marriage man has complete rights on the body and overall existence of his wife. Hence, having intercourse with the wife even without her permission was considered a societal right of the man. Thus, these laws and effects of English culture acted as a boost to the already pre existing patriarchal society of India. So the gravity of marital rape was never understood and discussed within this male dominated society.
With the time eventually after independence and various efforts of women’s rights activists, the position of women in society has improved. The laws in our countries are based on an egalitarian approach and Indian laws now consider a wife and husband as separate legal entity and provides for such laws which are specifically designed for the welfare and protection of the women. So we can see that there is a progressive growth in this field. Though the growth is progressive but it is not uniform because laws related to rape are still discriminating.
What are the current rape laws in India?
As discussed earlier that Section 375 and Section 376 of IPC defines rape and its punishment. Now let’s discuss these provisions in detail and the problems associated with it.
According to section 375 any man is said to commit rape when he has sexual intercourse with a woman
- Against her will
- Without her consent
- Obtaining her consent by putting some person she is interested, in fear of death or of hurt
- In order to have intercourse, creating a pretense which makes her believe that the person she is having intercourse with her husband but the man knows that he is not.
- When at the time of giving such consent, she is not able to understand the nature of such acts due to unsoundness of mind, intoxication or administration of any such stupefying substance to her by the man or another.
- With or without her consent, when she is under sixteen years of age.
To this section there is are two exceptions given. Second exception from which says that :
Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Thus by reading this law we can clearly analyse and say that this law is unconstitutional as it violates Article 14 and Article 21 of the constitution of India.
How does this law violates fundamental rights
Article 14 of the constitution provides for equality before the law and equal protection of laws. Although constitution provides for it, the rape laws of the country discriminates against the married woman. The law guarantees the protection against rape to the women by categorising them into 2 types. The woman who has the right to be protected under this law only when she is unmarried and if married she has to be of an age less than 15. Thus it clearly takes away the right of a married woman against sexual exploitation done on her by her husband. Firstly, the law does not recognize the fact that sexual exploitation is derogatory and threatening to a woman irrespective of her age and who does it to her. Secondly, the law does not consider that every girl below 16 years is a child whether married or not. So why does being married takes away the right from that girl. Also, the Supreme Court in Budhan Choudhary v. State of Bihar3 held that when any classification is made under Article 14 of the Constitution, a test of reasonability takes place which is passed only when some rational nexus is found between the classification and the objective that it aims to seek. This classification of women in the exception does not pass any test of reasonableness. On the other hand, this exception to this law clearly defeats the objective of this law, as the main purpose of the law is to provide redressal to the victims who have suffered the heniosity of this crime. But this exception clearly leads this law in a different direction and fails to address the issue of marital rape and also do not justify for the cause of married women.4
Now let’s move to the Article 21 of the constitution which guarantees right to life and personal liberty to every citizen of the country. And over a period of time through various judgements Supreme Court has expanded the purview of this article and has also included right to sexual privacy, right to live with human dignity and the right to bodily self-determination. 5
The exclusion of marital rape committed on women from the rape laws leads to the violation of the rights enshrined in the Article 21 of the Constitution. Specifically it distorts the above mentioned three rights of the women.
Right to privacy
The Right to privacy in itself also includes the right to decisional privacy, right to be allowed to leave unbothered and the right not to be disturbed. Any forceful sexual cohabitation is a violation of this right of the women and also constitutes an offence of rape. Thus not considering forceful sexual relations inside a marriage as rape and decriminalizing it is the violation of privacy of a married women. And our constitution equally treats people irrespective of the fact whether they are married or not.
Right to bodily self determination
This right guarantees every citizen of the country an autonomy on their body and also provides them self assurance and an individual is the one who should be the only person to have a definitive say in the matters of their body. And the decision of having sexual relationships with someone is one of the most intrinsic and private decisions in this matter of self expression and self assurance. And the law decriminalizing marital rape sort of takes away this right of the woman. As it takes away the decisive power from the woman and does not consider a woman’s permission and will.
Right to live with human dignity
In the landmark case of The Chairman, Railway Board v. Chandrima Das6, the Hon’ble Court held that rape is not just a violation of an ordinary right of a person. Rape is a crime against society as a whole and not a particular woman. It is a crime against basic human rights and is violative of the right to live with human dignity under Article 21 of the constitution.
Dignity is a very important right granted to every person and the rape laws of India takes away this right of dignity from a married woman. Hence this exception is violative of human dignity provided to women under Article 21 of the Indian Constitution.
Thus from the above discussion one thing is conclusively proven that the rape laws of India are highly discriminatory and are based on a pre conceived notion of a patriarchal society. The Supreme Court of India in order to make some reforms in it passed a judgement in 2017 (Independent Thought vs. Union of India7) which criminalizes the unwilling sexual contact by a man with his wife who is of an age between fifteen and eighteen year. By passing this judgement Supreme Court has tried to assert that a minor girl is always a minor and laws for her protection from sexual violence is her inherent right and only because she is married( being less than eighteen years of age such marriage is also illegal) does not takes away her rights from her and she deserves every protection under such laws. This judgement has brought in a revolution and people have started to come out and criticize the exception 2 of the Section 375 of the IPC more openly and a lot of writ petitions are filed demanding the declaration of unconstitutionality of the exception 2. These petitions also assert that not only minor girls but every woman should be provided equal protection in the cases of marital rape.
We have discussed about the deficiency in rape laws of our country and the problems which married woman faces because of it. Other than these direct implications of the rape laws of India, it has some indirect effects on other laws too. For instance, because of the inadequacy of laws related to marital rape, a woman in order to get rid of her husband tries to take help of domestic violance and dowry protection laws, as these are the only options which are available to them as an option. Though it is not visible prima facie but this misuse of other laws is a very grave issue.
Till now we have discussed about the importance of these laws but we did ignore the possibility of misuse of the marital rape laws if implemented. As we all know about how Section 375 of the IPC is being misused by the women in order to gain false benefit. The same way if marital rape is criminalised, it would be more prone to such misuses and this would make the position of husband more vulnerable then ever.
I am here nowhere trying to state that such laws against marital rape should not come. I fully agree with the dire need of this and how much it is needed by the married women of our country in order to maintain their sexual autonomy. But all I am trying to say is that like every other thing it has its pros and cons too, thus any step we take should be keep under check and control, so that it do not get misused and defeats the main purpose for criminalizing of Marital Rape.
What is the status of marital rape Internationally?
The concept of marital rape in international context has developed over a period of time. It is no different than India. Initially this concept was not accepted in most of the countries of the world. Earlier Sexual offences in general were considered as a private crime, a crime against the property of the husband and father of a woman. Hence, the idea that a man can also rape is wife was absured. As it was believed that by getting married, a woman provides this right to her husband and hence, husband has full right over her body. When rape as a crime was first sanctioned in 17th century and was made a crime against society, it was described as a crime which distorts the chastity of a woman , again this is not possible in a marriage.
A British jurist named Lord Matthew Hale in 1736 stated that “ The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife has given up herself in this kind to her husband, which she cannot retract”. 8
With time certain revolutionary changes started taking place. Some of those significant changes which are leading towards the changing attitude towards marital rape are:
- Recognition of human rights of the woman.
- Cognizance of International Organisations that abuse with woman in private space is also a violation of her rights
- The marital rape has always played a big role in transmitting STDs, hence now public health policy makers has come up and asked for its recognition by the state authorities.
- Global transformation of the institution of marriage in which woman now gets more autonomy and respect than ever.
- Demand by global feminist groups regarding sexual autonomy of the women in the 20th century
The above mentioned reasons played a big role in turning the mindset of this society and has helped a lot in creating a foundation for laws all around the world against the issue of marital rape and as a result of this many countries over a period of time have criminalised it but still the laws against marital rapes have serious loopholes all around the world. For instance, In Minnesota, though Marital Rape had been recognized but the law had an exception that if the partner is intoxicated and drugged at the time of sexual intercourse, it would not constitute rape. This exception was challenged in courts and later this year it was repealed by the court.
Till 1970s the law in US did not include marital rape as a criminalised crime on the other hand it was included as an exception to the defination of rape in the penal laws of United States. Reforms in marital rape laws in US took place after 1970s. Initially the laws demanded that for a marital rape to happen there was a necessity for the husband and wife to live seperately, only then can a husband be accused of marital rape. But this law was challenged in a court of law in 1978 in the case of Oregon vs. Rideout . Though nothing substantive was declared in the judgement of this case but it led to the beginning of protests for the reform in the penal provisions regarding rape laws in the country. Gradually states started to come forward recognising women’s rights and by 1993 all 50 states of the United States had criminalised the crime of Marital Rape but some states still have some loopholes here and there in their marital rape laws. According to the survey by National Coalition Against Women Violence, at least one out of ten women will face marital rape in their marriage.
Thus, the United States, which is regarded as the most developed nation of the world, is also somewhat suffering under the wrath of this issue and is still a complete and just picture is quite a way ahead.
International laws related to Marital Rape
One of the well recognized fact is that the Marital Rape is a crime which is highly detrimental to the Human Rights of the Females. The Marital rape violates jus cogens laws, like right to life, liberty, protection against violence etc. It also violates the rights related to autonomy and well being of an individual in the Family. These international laws directly or indirectly involves the issue of Marital Rape under their purview. Two of the most important international provisions addressing this issue are the United Nations DEVAW9 and Beijing Declaration10.
In 1993, it was declared that any violence against women, including marital rape was recognized as violative of women’s Fundamental Human Rights provided to her under international laws in the U.N Declaration on Elimination of Violence Against Women (DEVAW). After its immediate adoption general assembly requested all U.N member nations to pursue a policy for the protection of women as soon as possible. Though not binding DEVAW norms have very high persuasive value
In 1995, Beijing Declaration was adopted as a result of the fourth World Conference on Women in Beijing 1995. This declaration reiterated that in international laws violence on women also includes physical, sexual and physiological violence occuring in the family, thus it will include marital rape too11.
The problem of Marital Rape is not something which is new and a foreign concept to the people of country. We can even say that marital rapes exist in society for as long as the institution of marriage has existed. But it has not been recognized and if recognized it has been denied by the people. Not only perpetrators but victims also were not very vocal about this issue.
But with time we have reached a place where today we can say that we have cognizance of it and have laws for it. Though the laws at present which we have are not perfect now, they will be some day keeping the stakes of both parties in mind. But there is one thing to understand for us all that it is not laws which always comes to rescue, in order to eradicate a social issue like marital rape, there is a need to bring evolution in the mindsets of people of the society. The women should be empowered enough to talk about it but should not become tyrant who start misusing the laws. This all can only be achieved by bringing a social change and only then will eradication of this issue can take place.
10. https://www.un.org/en/events/pastevents/pdfs/Beijing_Declaration_and_Platform_for_Action.pdf11. https://www.academia.edu/24267199/The_Right_to_No_The_Crime_of_Marital_Rape_Women_s_Human_Rights_and_International_Law
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