In this article, Twinkle Jaiswal discusses whether a wife can file a rape case against husband or not?

Introduction

A wife cannot file a rape case against her husband directly. However, alternative remedies are available to the wife under Protection of Wife under Domestic Violence Act,2005. Marital rape is one of the acts of sexual intercourse with one’s spouse without consent. It is a form of intercourse with one’s spouse without consent. It is a form of domestic violence and sexual abuse. Marital rape in India has become a common issue affected by many legal and cultural factors. In India, marital rape is not criminalized, and culturally it is accepted as a norm of marriage. Statistics shows that incident of rape within marriage is increasing in India. Not only in India this concept is same in England also. During the 1600s in England, Justice Sir Matthew Hale wrote; 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 had given herself in kind into ‘the husband’ whom she cannot retract.

Marital Rape and the Indian Legal Scenario.

Section 375 of the Indian Penal Code defines Rape and in the exception clause, it is provided that “ Sexual Intercourse by a man with his own wife, the wife who is above fifteen years of age, is not rape. Section 376 of IPC which provides punishment for rape, states that rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years and may extend to life or a term exceeding 10 years and shall also be liable to fine unless the woman raped is his own wife and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section dealing with rape, in a very narrow purview, which lays that, an offense of rape within marital bonds only stands if the wife is below the age of 16, once the age is completed there is no legal protection provided to the wife under this section. However the legal age of marriage is 18 but the law on rape only provides punishment to the husband, if the wife is below the prescribed age. These two laws are inconsistent with each other.

The role of wife has traditionally been understood as submissive, docile and that of a homemaker. A marriage is a bond of trust and that of affection, there is no place for sex without consent.

The 72nd Law Commission Report had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. All forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal as sexual intercourse must be included in Section 375 of IPC.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
4. A new offense, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
5. Section 509 of the IPC needs an amendment, providing higher punishment where the offense set out in the said section is committed with sexual intent.
6. Marital rape, explanation (2) of section 375 of IPC should be deleted. Just as any physical violence by a husband against the wife, forced sexual intercourse must be treated equally as an offense is treated as an offense. On the same reasoning, section 376 A was to be deleted.
7. When alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so, under Indian Evidence Act.

Despite all efforts, still, in India marital rape is not considered. There is a great irony that a woman can protect her right to life and liberty, but not her body, within her marriage.

Marital Rape Statistics.

Every 6 hours, a young married woman is burnt or beaten to death or driven to suicide by emotional abuse by the husband. The U.N population fund states that more than 2/3rd of a married woman in India, aged between 15 to 49 are beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husband or their husband’s families. The studies indicate that between 10 and 14% of married woman who is the most susceptible targets who attempt to flee.

Alternative Remedies Available.

It is sad that in India there is a lack of provisions regarding marital rape. However, a woman can save herself from physical torture or sexual harassment. As per definition is given in Section 375 of the IPC husband cannot be legally punished for having forceful sex with his wife but to save the wife the law provides alternative remedies. The PWDAV 2005, provides that, any act causing harm or injury to the health, safety, and life of the aggrieved person or tend to do so and also causing physical abuse, sexual abuse, verbal and emotional abuse, will constitute Domestic Violence.

The term ‘sexual abuse’ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.

Under this, a woman can get a protection order, Right to reside in a shared household or residence order. This also means that husband has to make separate arrangments for her wife upon her complaint on her husband.Under this Act, the Magistrate can pass an order directing the accused to pay compensation and damages to the victim. Section 498-A of the dealing with cruelty can also be used by the women to protect themselves against “perverse sexual conduct” by the husband.

Legal Action when the husband forces his wife for unnatural sex.

A wife can file a case against her husband for an unnatural sexual offense under Section 377 of IPC. As this section prohibits sexual intercourse against the order of nature irrespective of the sexual orientation or gender identity of the individuals, thus even if such acts are done by heterosexual couples, they can be punished under section 377, even if the victim consented to the act, the offender under this section will be punished.

Legal Position of Marital Rape outside India.

International women’s and children’s organization had criticized the narrow definition of the rape provided in Section 375 of IPC, they insisted that oral sex, sodomy, and penetration by foreign objects must be included within the meaning of Rape. Even International Law now says that rape may be accepted as the “ sexual penetration”, not just penile penetration, but it includes threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.

In England, earlier as a general rule, a man could not have been held to be guilty as a principal of rape upon his wife, because sexual intercourse is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in 1991. The House of Lords held in R. v. R. that the rule that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse against her will was an old concept, which no longer represented the position of a wife in present-day society as it is too much different from that time. The corresponding amendment to the statutory law was made through Section 147 of the Criminal Justice and Public Order Act, 1994. This judgment was also affirmed by the European Court of Human Rights in the decision of SW v. UK.

Marital rape explicitly in the definition of violence against women under Article 2 of the Declaration of the Elimination of Violence against women. In 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet, Poland, and  Czechoslovakia, marital rape is illegal. The importance of consent for every individual decision cannot be overemphasized. However, it is legal in many countries including Afganistan, Algeria, Bangladesh, Botswana, Brunie, and China.

Organizations working for empowering women against marital rape.

1. American Bar Association on Domestic and Sexual Violence- This organization provides access to justice for a survivor of Domestic Violence and sexual assault. They engage a group of people who are related to the legal profession.
2. Equality Now- This organization works with grassroots organization and activists. They seek tp protect and promote the Human Rights of Girls and women all across the world.
3. SNEHA- NGO’s such as SNEHA works for the betterment of women and children. SNEHA’s Prevention of Violence against Women and Children program responds to and prevents gender-based violence in the urban areas. SNEHA provides counseling services at free of cost. They assist in filing F.I.R. They help to connect with specialized services like psychiatrists, clinical psychiatrists, shelters, homes, as per the need.
4. National Centre On Domestic and Sexual Violence is a training organization, which works to influence national policy and provides customized training and consultation to professionals working in this fields.
5. Sayfty-: an Indian woman is raped every 20 minutes, and approximately one in ten rapes are committed against women under the age of 18. Because laws against rape in India do not provide women with nearly enough protection, the organization Sayfty emerged to equip women with tools that help keep them safe from acts of sexual violence and educate women in matters of self-defense. While the idea is that women would be free from the threat of physical violence without having to live in fear, organizations like Sayfty help to empower Indian women by equipping them with knowledge and tools that will help to keep them safe.

Judicial Decision given by Supreme Court on Marital Rape.

Attempts were made in order to criminalize marital rape in India but on the different ground declined the plea. Justice Verma Committee, after the Delhi Rape case 2012, heeded the demand to criminalize marital rape. The Indian Government, however, chose to turn away from it as it has the potential to destroy the institution of marriage.

The Supreme Court, in the State of Maharashtra vs. Madhukar Narayan Mandikar, has referred to the right of privacy over one’s body. What is sad here is to observe how the court has conveniently put wife out and has yet not given her privacy over her own body whereas women who have been subjected to rape by a stranger have that right as rape is criminalized but not marital rape, a great irony on Indian Judicial System. In this case, it was decided that a prostitute had the right to refuse sexual intercourse if she was unwilling.

In Tilak Raj v State of Himachal Pradesh, Justice T.S Thakur, and Gopala Gowda made the observation that the consent of sexual intercourse was not obtained under any misconception of marriage, as in the cross-examination it was observed that they were in a relationship and acquitted the accused.

Conclusion.

Indian society is patriarchal one, with a large preference placed on sons over daughters, it is the duty of the wife to keep their husband happily, in doing so she cannot deny sex. It is a great irony that a woman can protect her right to life and liberty but not her body. It is a fact that women who are raped by their husbands are more likely to experience multiple assaults and they also suffer long-term physical and emotional problems. In this context, marital rape is even more traumatic for a woman because she has to stay with her assailant every day. In this context, we can say that women are not safe even in their own home.

In 2012, it was ruled that if a woman denied her husband sex it was a form of abuse. The ruling was later upheld by the Supreme Court as well, saying that being denied sex is a valid reason for divorce, by denying sex, she is also denying him happiness. In 2015, a woman came forward about having being raped by her husband. The woman approached the Supreme Court, but her petition was dismissed, the court held that the new law could not be changed on the basis of one’s person experience. India needs strict laws regarding marital rape to protect the rights of a married woman, providing her right to file a case against her husband for marital rape.