This article has been written by Rahul Ranjan, National University of Study and Research in Law, Ranchi.

Introduction

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”[1]

-P. Venkatrama Reddi

From the time immemorial to the current scenario, if one is asked about the golden era for a wife under the institution of marriage, where she was held above the male counterpart or even as equals, there would be no answers. Women were wholly-owned subsidiaries and not independent beings or things, to be particular. Marriage, according to Gordon B. Hinckley (an American religious leader), in its truest sense, is a partnership of equals, with neither partner exercising dominion over the other, but, rather, with each, encouraging and assisting the other in whatever responsibilities and aspirations he or she might have.[2] However in this Indian country, where goddesses are worshipped, male prove their masculinity and masochism by forcing their wife to non-consensual sex, which is no less than rape; but done within the iron tag of marriage.

This act itself is not the worst part of the deprivation of women in Indian society but foregoing the person engaging in this heinous act is for sure the one. Access to justice in its widest sense can be understood as a right to legal remedy against any act which is in any way an infringement to the principles of law. However, in this country, marital rape is not against the Indian law; which eventually licenses a husband to rape his wife without any fear of criminal action by the state. This is a part of Indian Justice System which has been inaccessible to the Indian wives and there is a dire need of a set of regulations concerning the same. Law cannot afford to remain static. Law should be interpreted in such a manner to encompass the new problems that arise with varying situations and the scenario of the society[3]. With ever-increasing literacy rate and ease of access to connect to the world, women have slowly started to know about their rights and the violation of the same. This is the time when the Legislature and the Judiciary needs to join hands and take a step towards making this inaccessible part of the justice available to those victimized ladies who never ever have got any chance to speak for themselves against a kind of crime which is sufficient to leave a mark on their soul for a lifetime. Nevertheless, it is the time when whole India should stand on a common consensus that without criminalizing marital rape, there stands no chance of women empowerment and gender equality. 

Marriage, marital rape and Indian society

According to the general definition, Marriage is a state of being united to a person of the opposite sex as a husband or a wife in a consensual and contractual relationship recognized by law[4]. The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of husband and wife in law for life, or until the legal termination of the relationship.[5] Marriage in Indian society is basically an amalgamation of two people of the opposite sex, who get together to perform marital and religious duties and to take the kin ahead. In Indian society, it had been a general notion that man is made to support and run the family and woman to look after the family working under the guidance of the husband. This preconceived notion is still prevalent in the society and ultimately has given an upper hand to the male members, which is a basic reason for deprivation of women in various forms; being silent against marital rape is one among them. 

Marital rape is non-consensual sex between spouses which is the vehicle to accomplish the desired result, such as to overwhelm, overpower, embarrass, and humiliate another person. Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non- consensual act of violent perversion by a husband against the wife where she is abused physically and sexually. As Oxford living dictionary describes marital rape, it simply and in very plain language means, “rape committed by a person to whom the victim is married”. 

This definition given by the Oxford dictionary leaves no stones unturned regarding the marital rape being a rape, which happens behind those closed doors in the name of a sacred institution of marriage; still, Indian legislature is sitting quietly on this matter, taking credit for making laws for women safety and talking about women empowerment. Nevertheless, this conservative Indian society, which has compelled a woman to think that she is not only a second class citizen but also a second class gender, is one of the biggest reasons for this high tolerance level of women. Once asked by the Delhi High Court on the issue of criminalizing marital rape, the Center replied that criminalizing it may hamper and destabilize the institution of marriage, and will become an easy tool for harassment of husbands.[6] This makes it evident that the thinking or the mentality and the approach needed to bring a change in the society is clearly lacking, both in the part of the victims and the rest of the society. People are not ready to accept that marital rape is to a rape and fear that it may hamper the position of men as against women. 

Marital rape is also rape

The ancient patriarchs who came together to write their early covenants had used the rape of a woman to forge their male power- how then could they see rape as a crime of man against a woman?[7] Before commenting on the fact that marital rape is no less than a rape, let us first understand what a rape means according to Penal Law of India. 

To make out the offence of rape defined under Section 375 of the Indian Penal Code, rape must either be 

1. against her will, or 
2. Without her consent. 

The courts have clarified that these are two separate tracks to proving rape: ‘against her will’ means the woman has resisted and there was opposition while ‘without her consent’ would comprehend an act of reason accompanied by deliberation[8].

This gives us a clear picture of the instances which can come under the definition of rape and should be punished under Section 376 of IPC. Wherever there is a lack of will or consent by the female partner under any kind of sexual intimacy, it will be called rape and thus calls for punishment. However, the wedlock is considered as the dead-end of a woman’s consent and will. Marriage, as per an Indian’s context tends to mean surrendering yourself whenever the husband asks for any sort of sexual favours. As per ancient historians such as Manu and Yajnavalkaya, marriage in Hindu religion is a religious institution which is pious and sacramental in nature, and is essential to perform various religious duties. A man’s life is incomplete without marriage, and he completes himself by taking up a woman as his better half.[9] The most basic function of marriage was to perform religious duties and both the counterparts were placed on equal footing. It was said that God resides in those homes, where females are respected. Manu was of the view that a wife is a divine institution given by Gods and one should think that she has been obtained his (Husband’s) choice. 

However, there has been a paradigm shift in the true essence of marriage in recent days. It is becoming more of a sex-based institution from a religious-based institution with a predominance of men. The situation of women is still deteriorating in Indian society and the elite class is still silent on the topic concerning the infringement of basic right of a woman. 

Sir Mathew Hale, Chief Justice in England, during the 1600s in his treatise Historia Placitorum Coronae or The History of the Pleas of the Crown 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 hath given herself in kind unto the husband, whom she cannot retract.”[10]

This statement was made during the 1600s but is still prevalent today, at least in case of India. There has been a lot of hue and cry for gender equality but nothing much has been done for a woman getting into the role of a wife. Most recently a Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape and no culpability can be fastened upon the accused[11].   Inside the definition of marital rape, the right of a woman to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.

The following are the three kinds of marital rape[12], generally prevalent in society;

• Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways.  
• Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. 
• Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. 

Looking into the definitions we can easily find out that each and every definition consists of words like force, assaults, physical violence, and each characterizes the absence of intention. Provided with these many clues, any layman can say that these words when connected with sex are no less than rape. When it is too clear and transparent that the wife is subjected to force in order to surrender herself and give up on her will and consent than there should be no problem with those sitting on helm enacting a law which makes this forced intercourse, taking away the bodily autonomy from a woman and abridging her will and consent, a punishable offence.

It is said that “A good husband makes a good wife”[13], but we Indians have taken it a bit differently, making it ‘a good wife is the one who satisfies her husband all the times he wanted, and then call it as his love’ and a good husband is someone who can show his masculinity over his own better-half. The biggest irony in the law of India is that there are laws against stalking[14], voyeurism[15], post-marital harassment regarding dowry but the same law books don’t channelizes marital rape as a crime. These law books talks about modesty[16] of a women and imprison who either assaults or uses criminal force or by word, gesture or act intended to insult the women and outrage her modesty, but there is no talking done on the topic where a woman’s actual modesty, her self-respect and her autonomy over own body vanishes. She just becomes a sex toy for her husband, who comes home and rapes her, releasing all his frustration on his wife by way of domestic violence and physical torture which in itself encloses marital rape. Rape is defined by Section 375 of IPC, however the definitions given are self-contradictory, in which on one side from clauses one to six either talks about will or consent of women, there is no reference of the aforementioned words when it comes to sexual intercourse between spouses where female partner is not below fifteen years and is called as an exception. If we go by the basic definition of rape and consider the case of marital rape at the same time, there lies no scope of sidelining the latter from the ambit of the former. In cases of marital rape, no one but the woman, the victim knows whether it was a rape or not, and thus it is necessary to get this offence registered as rape.

Need for criminalisation

Sexual autonomy i.e. right to engage oneself in a physical relationship with another is a basic human right and also comes under right to privacy, which is a fundamental right[17]. Thus there shall be some punishment when one’s right has been violated.  Non-criminalization of marital rape leads to violation of Article 14 (right to equality) and Article 21 (right to life) of the Indian Constitution. It also breaches Article 19(1)(a) (right to freedom of speech and expression) and Article 15 (right to no discrimination on the ground of gender) of the Constitution of India. In State of Maharashtra v. Madhkar Narayan[18] Supreme Court held that every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased. There is no implied consent to sexual relations upon whims and fancies of the husband. The right to sexual intercourse is not a husband’s inherent right in the marriage, for such a right defeats the very concept of equality and human dignity. 

This voice against marital rape is not a totally new phenomenon, but it has resided in India for a greater amount of time, though under different names. There was a lot of hues and cry over the death of Phulmonee Dassee after being raped by her husband, which ultimately was a case of marital rape (Though the husband was not convicted of rape and only for causing grievous hurt by act endangering life or personal safety of others)[19]. The widespread outrage that followed led to then Viceroy, Lord Lansdowne, presenting the Age of Consent Bill, that raised the age in the exception clause to 12 years. Thereafter a revision, to 15 years, took place back in 1949, in response to agitations by women groups against early pregnancies.[20] In the almost 70 years since, the rape law marital exemption in Section 375 has remained untouched, only to a recent change made via a case-law[21], which held that husband having sex with his wife aged between 15 and 18 years would constitute as rape and not an exception. Definitions of marriage kept changing with time, but there were no changes made as to the criminalization of marital rape. 

Lord Keith, speaking for the Court, declared, “Marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband.”[22] In this case law it was observed that the husband could be charged as a principal offender in the rape of his wife; however, the decision has never been followed in India.

Nevertheless, if marital rape is a rape behind the doors under the name of marriage, there must be some laws relating to the same which might safeguard not only the rights of a woman but also to protect the sanctity of marriage. Marital rape is so destructive because it betrays the fundamental basis of the marital relationship and questions every understanding one has not only for partner and marriage but to herself also.[23] So what all is needed is some laws against it, and greater than that is a voice against this practice. No crime shall go unreported and marital rape is no less than a crime. It is believed that women in India are 40% more likely to experience rape from their husband than by a stranger.[24] According to a 2018 National Family Health Survey, more than 80 per cent of married women who have experienced sexual violence named their current spouse as the perpetrator. In a 2014 survey of more than 9,200 men across seven Indian states, one-third admitted to having forced a sexual act on their wives[25]. Nevertheless, marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, the Soviet Union, Poland and Czechoslovakia.[26] It has been made illegal by many other countries (around 52 countries have explicitly made it a criminal act).

Being raped by a known person such as any of family members is much more traumatic and harsh as compared to strangers. According to the United Nations Population Fund, 75% of married women in India are subjected to marital rape[27]. This speaks the pathetic condition an Indian woman suffers from. The only remedy the victimized women are left with is Section 498A of the Indian Penal Code which talks about cruelty on a woman by husband and relative and Section 354 dealing with sexual harassment. In worse cases, she can opt for Domestic Violence Legislations. A woman has always been treated as a marginalized class; however recent developments have shown that there is a scope of their upliftment. 

In a report submitted by Justice Verma Committee[28] it was categorically stated that the exception to marital rape should be removed. In one of the recent landmark judgment of Independent Thought v. Union of India and Anr[29]., Supreme Court of India passed a judgment regarding marital rape, where it was held that husband having sex with his wife aged between 15 and 18 years would constitute as rape and not an exception. However, this judgment came only for a particular age group and not for the victims as a whole. It was clearly argued by the Petitioner that it has no concern with wives whose age is above eighteen. However when we look up to the case of Sakshi v. Union of India[30], it was argued by the NGO that where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognized by law. Therefore, there is no reason why a concession should be made in the matter of an offence of rape/sexual assault only because the wife happens to be above any particular age.

One of the most interesting views on spousal rape has recently been made by Justice J.B. Pardiwala, who while listening to the case of Nimeshbhai Bharatbhai Desai v. State Of Gujarat[31] showed utter dismay to the limitations of the penal law. He was of the view that the total statutory abolition of the marital rape is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized. He advocated for equal rights to women irrespective of their marital status and observed that the only way to remove the destructive attitudes that promote marital rape is to criminalize it. 

These statements have indeed come as a great support for Indian women, but it is the only who can get the people at helm change their attitude and force them to make a change in law also. A lot has to be done in order to get those denied rights to Indian women and they only are needed to be the pioneers.

SUGGESTIONS AND CONCLUSION

As per Susan B. Anthony, an American women’s rights activist, “The day will come when men will recognize woman as his peer, not only at the fireside but in councils of the nation. Then, and not until then, will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race.”[32]  

The most basic thing needed to be done is to teach both men and women that they are equal to each other and none is superior to another. A moral, as well as legal support, is needed for women to get to that position where they deserve to be in. They shall be taught of raising voice against the atrocities happening over them, and marital rape is one such atrocity. Marital rape is a rape, so why two yardsticks to measure a single crime with the same effect to the victim? Indian law book on one side gives punishment to those strangers who rapes a girl but acquits or punishes for different pity offences (when compared to rape), the same person when he is married to the victim. The wife’s body is unqualifiedly her own and she is not bound to yield her body until she feels that she can do so with the full tide of willingness and affection. However in Indian society, a woman is taught that after marriage, it is the husband who owns her; she is treated not as a human being, but as a thing, an object which has been handed over to the sole proprietorship of the husband by her family. She is never allowed to walk out of marriage by society just because she was being raped by her husband on a daily basis after the marriage.

In the case of Petitions filed before the Delhi High Court seeking criminalisation of marital rape, one of the three petitioners, an individual who herself was a victim of marital rape, said that she was advised by her own family members to ignore the fact that her husband raped her and not to speak against it; moreover she was threatened by her own brother of being secluded from her family if she walks out of the marriage. However, she did and the family severed all ties with her.[33] This is what a case of marital rape does; it destroys the whole of the family and the person who gets punishment is the victim herself. The actual accused roams freely. The grass-root problem of this big issue is that it has been accepted that marriage is unchallengeable and is of godly nature, and a female counterpart is an object, who is obliged to worship the husband’s every whim and fancy irrespective of its nature. However, it is not the true definition of marriage. It is supposed to thrive in mutual respect and trust, both being placed on an equal footing and neither high nor low, neither the dominant nor the oppressed. 

Thus the need of the hour is to criminalize this evil present in the society. Enough of talking, raising voice against it, uniting as women leaving behind the identity of mother or sister and a strict law is all that needed to curb out marital rape. It is the women who will have to come forward joining hands with each other and fight for their rights. Forced marital sex should be brought within the ambit of rape under Section 375 of IPC. A marital or other relationship between the perpetrator and the victim should not be taken as a valid defence nor should it be regarded as a mitigating factor justifying a lower sentence of rape. Nevertheless, society needs to discuss this problem and they need to teach and support their daughters to raise a voice when she feels suppressed. There must be enough awareness so that neither poverty nor illiteracy becomes an obstacle in the path of criminalizing this anti-ethical practice. 

Endnotes

[1] State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

[2] K. D. Baddett, Doctrinal Insights to the Book of Mormon, 21 (1^st Vol., 2007)

[3] Kailash Chand v. Dharam Pass, (2005) 5 SCC 375; M.C. Mehta v. Union of India, (1987) 1 SCC 395; C.I.T. v. Minal Rameshchandra, 1987 167 ITR 507 Guj.

[4] D.L. Pope, Who’s Changing the Meaning? (2017).

[5] Tej Kumar Siwakoti, Social, Political, and Economic aspects of Sikkim during pre and post merger Period, 157 (1^st ed., 2017).

[6] Soibam Rocky Singh, Criminalising marital rape ‘may destabilise institution of marriage’: Centre tells Delhi HC, Hindustan Times (29/08/2017), available at https://www.hindustantimes.com/india-news/criminalising-marital-rape-may-destabilise-institution-of-marriage-centre-tells-delhi-hc/story-gmt8sh4eAAoc2w2kvOSHkJ.html., last seen on 05/07/2019

[7] Susan Brown miller, Against Our Will: Men, Women and Rape, 18 (1993).

[8] State of UP v. Chottey Lal, (2011) 2 SCC 550

[9] Paras Diwan, Peeyushi Diwan & Shailendra Jain, Dr. Paras Diwan on Hindu Law, 547 (2nd ed., 2005)

[10] Paul Finkelman, The Encyclopedia of American Civil Liberties: A – F, 961 (1^st Vol., 2006).

[11] State v. Vikash, SC No.1/14 (Special Fast Track Court, Dwarka Courts, New Delhi, 07/05/2014)

[12] D.K. Gosselin., Heavy Hands – An Introduction to the Crimes of Domestic Violence, (1st ed., 2000)

[13] Robby Sherwin, A good husband, Counter Punch, available at https://www.counterpunch.org/2015/09/14/a-good-husband-makes-a-good-wife-how-the-supremes-saved-marriage-and-didnt-even-know-it/, last seen on 21/10/19

[14] S. 354D, Indian Penal Code, 1860.

[15] S. 354C, Indian Penal Code, 1860.

[16] S.509 and S. 354, Indian Penal Code, 1860

[17] K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

[18] AIR 1991 SC 207

[19] Queen Empress v. Haree Mohan Mythee, (1890) 18 Cal 49

[20] Shalini Nair, Meet Anam- One of the three petitioners seeking criminalisation of marital rape, The Indian Express (17/09/2017), available at https://indianexpress.com/article/india/meet-anam-marital-rape-survivor-criminal-offence-delhi-high-court-4847094/, last seen on 04/11/2019

[21] Independent Thought v. Union of India, AIR 2017 SC 4904.

[22] R. v R. [1991] UKHL 12

[23] Meghna Baveja, Marital Rapes: A crime less acknowleged, The Viewspaper, available at http://theviewspaper.net/marital-rapes-a-crime-less-acknowledged/, last seen on 04/10/2019.

[24] Sonal Singh, Dear Supreme Court, Here’s Why Marital Rape Should Be Criminalised, The Better India, available at https://www.thebetterindia.com/123017/supreme-court-criminalise-marital-rape-laws-india/, last seen on 05/10/19.

[25] Dominique Mosbergen, Marital Rape Is Not A Crime In India. But One High Court Judge Is Pushing For Change, HUFFPOST, available at https://www.huffingtonpost.in/2018/04/05/marital-rape-is-not-a-crime-in-india-but-one-high-court-judge-is-pushing-for-change_a_23404061/, last seen on 05/10/19

[26] S. Shankar Mishra, Marital Rape is Not a Rape?, Just In Print, available at  http://justinprint.in/marital-rape-not-rape/, last seen on 05/10/2019.

[27] Press Trust of India, Marriage sacred in India, so marital rape cannot be applied: Centre, The Indian Express (30/04/2015), available at https://indianexpress.com/article/india/india-others/concept-of-marital-rape-cannot-be-applied-in-india-govt/, last seen on 06/10/19

[28] Notification No. SO (3003)E, Government of India, Report of the Committee on Amendments to Criminal Law, available at http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%

20report.pdf, last seen on 06/10/2019

[29] AIR 2017 SC 4904.

[30] AIR 2004 SC 3566

[31] R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017 (The High Court of Gujarat, 02/04/2018)

[32] Lynnette D. Madsen , Successful Women Ceramic and Glass Scientists and Engineers: 100 Inspirational Profiles, 546 (2016).

[33] Supra 20.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.