Ankita Sen

This article is written by Ankita Sen, a student of BBA.LL.B at National Law University Odisha. 

Meaning Of Marital Rape.

The word ‘rape’ has been primarily derived from the Latin term raptus which literally refers to the act by one man of damaging or destroying the property of another man.[1] Here, property primarily referred to wife or daughter of another man.

Marital rape, as the name suggests is rape caused to a spouse by her husband. It basically refers to the actual use or threat of use of force by the husband against the wife to compel her into sexual intercourse.[2] This form of rape also known as conjugal rape or wife rape is also said to have taken place when the wife is compelled to have entered into sexual intercourse in a situation when she is unable to express consent.[3] This roots back to that age of the history of mankind, when women were considered to the property of their husband. This was also covered by a legal principle of coverture which refers to the wife being covered by the spouse once married, such that she is now his property.[4] It denies a woman her bodily integrity thus striking a blow at women’s rights.[5]

The issue of marital rape is largely neglected. Patriarchal domination of the society has come up time and again and has granted to the husbands exemption in cases of marital rape basing on the assumption that the wife has given herself to the husband through the contract of marriage.[6] Modern leaders in support of the victims of marital rape, however, hold that marital rape is also a form of rape and the marital status of the woman should have no bearing on the culpability in the crime of rape.[7] It is a form of rape that lays hidden under the cover of marital privacy that gives both the husband and the wife, the right to protect the private acts that they both enter with consent: it is not a guard to hide violent acts.[8]

Theories Of Marital Rape

Various authors have over time come up with different theories regarding the occurrence of marital rape in the society:

The Feminist Theory: this theory considers marital rape as a tool in the hands of the patriarchal society that is used to exercise control over women. They consider that the exemption given in cases of marital rape is a remnant of the earlier laws regarding women that considered them to be the property of the husband.[9] The feminists are of the view that marital rape is nothing but a result of a power play by the male spouse in the marriage.[10] Radical feminists have gone to the extent of arguing that any form of heterosexual intercourse is based mainly on the desire of the man and is another form of oppression on women.[11]

The Social Constructionism Theory: the believers in the theory of social constructionism are of the view that men have dominated the society in law making and the political arena since ancient days.[12]  Laws thus came as a reflection of the interest of men. Such laws considered women to be their husband’s property after marriage and hence, marital rape was considered an offence of lesser degree as compared with rape.[13] Some jurisdictions even considered that rape in a marriage is not rape at all.[14] The social constructionists believe that marital rape is a means through which men try to assert themselves over their wives so as to retain their long gained power over their property.[15]

The Sex-Role Socialization Theory: these theorists believe that it is the particular gender roles which guide the sexual interactions between the spouses in a marriage. In a marriage, women are always taught to be calm and passive, submissive whereas, men are trained to be dominant and aggressive.[16] Care and love are attributed to women. Men, on the other hand, are the major perpetrators of sexual entertainment with violent themes.[17] Sex role socialists are of the view that marital rape is nothing but an expression of the traditional perceptions of sex roles.[18]

Types Of Marital Rape

Marital rape may be broadly classified into following two categories:

Sexual coercion by non-physical means– this form of coercion involves social coercion in which the wife is compelled to enter into sexual intercourse by reminding her of her duties as a wife. This form of coercion entails applying non-physical techniques and tactics like verbal pressure in order to get into sexual contact with a non-consenting female.[19] The most commonly used non-physical techniques include making false promises, threatening to end the marital relationship, lies, not conforming to the victim’s protests to stop, etc.[20] Such acts of sexual coercion by the use of non-physical stunts though considered less severe in degree as compared with physically coercive sexual acts are widespread and pose a threat to women’s rights in the society.[21]

Forced sex– this involves the use of physical force to enter into sexual intercourse with an unwilling woman. It can be further classified into the following three categories:

Battering Rape- this form of marital rape involves the use of aggression and force against the wife. The women are either battered during the sexual act itself or face a violent aggression after the coerced sexual intercourse.[22] The beating may also occur before the sexual assault so as to compel her into sexual intercourse.[23]

Force Only Rape- in this form of rape, the husband does not necessarily batter the wife, but uses as much force as is necessary to enter into sexual intercourse with the unwilling wife.[24]

Obsessive Rape- this form of rape involves the use of force in sexual assault compiled with perverse acts against the wife.[25] It involves a kind of sexual sadistic pleasure enjoyed by the husband.[26]

Historical Background

Once married, a man is bound by the duties of marriage to respect his wife and treat her with dignity.[27] The concept of matrimonial rape has evolved in the recent period. However, neither in the past nor in the present have such laws been formed which prosecute a married man for forcing her wife to have sex with him. Common law down not provide any remedy for such a torture being caused to the woman, and says that a woman is obligated by the ties of the marriage and thus has to provide her husband with everything that he asks for. Over the years however, with the growing awareness of gender equality the common law as well has been amended thereby criminalizing such activities. In the present scenario, the developed and the developing nations have taken a step forward in protecting woman against such crimes.

In India, marital rape is still not considered to be an offence. Despite many efforts put by the law commission in its reports or bills brought up before the parliament, this horrendous act which uproots the sanctity of a marriage, has not been declared as an offence. A married woman in India has absolutely no laws to protect her and everything only depends upon the interpretation of the courts.

Thus, in India we see that the present scenario with regard to marital rapes is that the offence, in a due facto manner exists in the legal regime but there has been no formal illegalisation and criminalization of such offence. In other countries across the world however, such an act has either been criminalized or the judiciary has been actively involved in bringing up reforms in their laws with regard to marital rape.

The Hon’ble Supreme Court is of the view that rape is an act against humanity as a whole.[28] However, there was no mention as to what was court’s stand with regard to the offence of marital rape. Further, women who want to raise their voices against sexual violence do not have a very strong law supporting and protecting them against the exemption that Sec. 375 of the Indian Penal Code, 1860, which specifically states that a husband cannot be prosecuted for forcing his own wife to have sexual intercourse.

However, of is not the case that there has been no progress with regard to criminalization of such activities. The addition of Sec. 376-A is a step towards protecting woman from such torture which criminalizes any sort of force to have sexual intercourse, used on wife who is living separately. The husband can be fined and imprisoned to a maximum of two years.

An Analysis Of The Present Scenario Of Marital Rape and divorce

Current Scenario of Laws In Relation To Marital Rape.

Marital rape has been hinted in the Domestic Violence Act, 2005. The Act prohibits any form of sexual abuse in a live in or marriage relationship.[29] However, this Act provides for civil remedies only. Currently, in India, marital rape is not criminalized under the Indian Penal Code, 1860 (hereinafter referred to as the Code). Section 375 of the Code specifically excludes acts of sexual violence in a marriage outside the purview of rape.[30] However, under Section 376 B of the Code, a man is punished for forced sexual intercourse without the consent of the judicially separated wife. Further, as also seen above, marital rape cannot form a direct ground for divorce under different personal laws.

The provision for rape in the Code that clearly excludes marital rape from its ambit is violative of the provisions of the Constitution of India. Art. 14 of the Indian Constitution provides for equality of all persons before the law and prohibits any kind of state discrimination. However, the Exception in Sec. 375 of the Code discriminates against married women and does not qualify as a reasonable classification. It is thus, violative of the protection granted by Art.14.

Further, Art. 21 of the Indian Constitution provides for right to life and such life includes the right to live with dignity. Marital rape infringes upon the right of a woman to live with dignity. Thus, the Exception to Sec. 375 of the Code is in clear violation of Art. 21 of the Constitution.

Modern and Traditional Theories of Exemption of Marital rape.

Various theories have been put forward time and again to justify sexual abuse of a wife by her husband and the non inclusion of marital rape as a ground for divorce:

Traditional Theories:

  • Contract Theory: Marriage is generally treated as a contract and one of the conditions of such a contract involves the implied consent of the wife to fulfil the sexual needs of the spouse as per his whims and fancies. This gives to the husband a marital right to enter into sexual intercourse with his wife. The contract theory, though fraught with flaws has survived for a considerable time period.[31] According to this theory, there exists no concept of marital rape because sexual intercourse between spouses is always considered consensual.
  • Women Treated As Property: This theory was mostly followed in the common law system. The basic presumption was that the husband was the owner of his wife and therefore could not be said to rape his own property. As women were treated as property[32], common law believed that seeking consent for sexual intercourse was violative of man’s right to property.
  • Marital Unity: Common law also believed that once married, the identity of a wife merges with that of her husband and hence, the husband was considered unable to rape himself. This theory considers the spouses to be a single entity.[33]

Modern Theories:

  • Less Serious: It is said that non-marital rape is more serious as compared to marital rape.[34] However, according to a survey by Joint Women Programme, in a group of seven married women, at least one is raped and sexually harassed by her husband. Hence, the statistics reflect a picture contrary to the belief.
  • Difficulty in proving: Marital rape, being a crime of personal nature is very difficult to be proved. However, the Domestic Violence Act, 2005 provides for a list of crimes that are personal in nature but are also punishable. Thus, this excuse of facing difficulty in proving marital rape cases does not hold ground for exempting the same.
  • Possible abuse: The criminalization of marital rape is fraught with potential chances of abuse of the law by wives with ulterior motives to cause hardship to their spouse.

Marital Rape and Divorce.

In order to break this legal deadlock, however, marital rape can be brought under cruelty and hence can act as a ground for divorce. Cruelty refers to an intentional infliction of harm, either mental or physical on a living being, especially a human.[35] Also, the Indian Penal Code, 1860 explains cruelty as any act by the husband that drives the victim woman to commit suicide or cause to her grave and serious injury, both mental and physical.[36] The landmark case of Shobha Rani v. Madhukar Reddy[37] observed that cruelty must be studied in light of the conduct of one spouse towards another in a marriage and in the respect of marital obligations.

It is herein important to note that all personal laws follow the fault theory of divorce.[38] This theory is generally opted by a spouse who desires to be absolved by way of proving the fault of the other spouse.[39] The Hindu Marriage Act, 1955 provides cruelty as a fault ground for divorce.[40] So also, the personal laws provide cruelty as a ground for divorce including the Special Marriage Act, 1954[41], the Dissolution of Muslim Marriage Act[42], the Indian Divorce Act, 1869[43] and the Parsi Marriage and Divorce Act, 1936[44]. Thus, in order to constitute marital rape as a ground for divorce one has to resort to the ground of cruelty due to the absence of a separate ground of marital rape.

Suggestions

In spite of the present situation where marital rape is given little attention by the legal fraternity, it is a serious offence which indignifies a woman. According to Indian law, a woman under sixteen years of age having consensual sex qualifies to be a victim of rape. However, a married woman even if compelled to enter into sexual intercourse is not said to have been raped. The idea that a woman cannot seek legal protection on being forced by her husband to have sexual intercourse is in itself is disturbing.

The United Nations through its Committee on Elimination of Discrimination Against Women had brought about the recommendation that India must criminalize marital rape. The Justice Verma Committee that was formed in light of the brutal Nirbhaya gang rape case criminalized various sexual offences but the opinion that marital rape should be made illegal was disregarded completely.  This was solely based on the view of the parliamentarians that criminalizing marital rape would bring under stress the institution of marriage and would go against the principles of family harmony. Arguments have also been put forth that if a law criminalizing marital rape is brought forth, it will be abused greatly.

Marital rape leads to the breakdown of the marriage and also destroys the sanctity of the spousal relationship. Despite this situation, it is expected of the wife that she remains silent and continues with the marriage. The worst disadvantage in this scenario is that the woman is compelled to live with the husband, the rapist himself. Hence, there lies an urgent need to bring about substantial changes with regard to the laws relating to sexual offences. For instance, inequalities should be eliminated and gender neutral laws should be framed.

Women today who suffer from such crimes must be made aware of their rights and the remedies available to them against such heinous acts. Women should raise their voice against such mistreatment backed by support from the society. Indian culture has always emphasized on equality, strength and not on abuse, control or power. Therefore it is expedient to the need for justice for women that the Indian judicial system criminalizes marital rape and includes it as a fault ground for divorce. The researchers have come up with the following suggestions in respect of the current scenario:

  • Marital rape must be criminalized under the Indian Penal Code, 1860. This must be done by way of amending Section 375 of the Code, in light of the recommendations given by the Justice Verma Committee.
  • The punishment for marital rape should be the same as provided for rape under Section 376 of the Indian Penal Code, 1860.
  • The husband should not be allowed to take the plea that there was a lack of resistance on the part of the wife in a case of marital rape.
  • Marital rape should be included as a direct ground for divorce under all personal laws.
  • General awareness with regard to marital rape must be spread among the public.
  • The Court must carefully scrutinize the facts and circumstances of each case to find out if there were circumstances that could lead to the victim being compelled to not raise her voice against all harassment.

Conclusion

The researchers have tried to provide an understanding as to the nature of the crime of marital rape. This write up has not been restricted to the issue of marital rape as a ground for divorce. Throwing light upon the relevant provisions of different divorce laws in the country, the researchers have tried to point at the loopholes existing in the current system that follows the archaic belief of non-inclusion of marital rape as a ground for divorce. Further, another issue at hand is the non-criminalization of marital rape. These issues coupled together bring forth the intention of the Legislature that indirectly promotes patriarchal supremacy in the society. Apart from the legislative and legal justifications for the same, theorists all over the world have also come up with various theories that justify the non-criminalization of marital rape. In India, some form of progress is seen in the form of the provisions of the Domestic Violence Act that prohibits any form of sexual abuse in a marriage. However, this Act providing civil remedies only is not a sufficient tool in the hands of the women. The Legislature must look into the issue of enacting new laws and provisions for a crime as heinous as marital rape.

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References:
 

[1] Women And Gender In Medieval Europe: An Encyclopedia, Margaret Schaus, Taylor & Francis, 2006, 695.

[2] Marital Rape And The Indian Legal Scenario, Priyanka Rath, Indian Law Journal, 1.

[3] Sex Crimes: Perpetrators, Predators, Prostitutes And Victims, Ronald B. Flowers, Charles C. Thomas Publisher, 2006, 38.

[4] Encyclopedia Of Rape, Merril D. Smith, Greenwood Publishing Group, 2004, 122.

[5] Marital Rape- Myth, Reality And Need For Criminalization, Saurabh Mishra, Sarvesh Singh, available at http://www.ebc-india.com/lawyer/articles/645.htm, last visited on March 28, 2016.

[6] Home Truths About Domestic Violence, Jalna Hamner, Catherina Itzin, Routledge, 2013, 57.

[7] License To Rape: Sexual Abuse Of Wives, David Finkelhor, Kersti Yiio, Simon and Schuster, 1987, 3.

[8] Confronting Rape And Sexual Assault, Mary Odem, Jody Warner, Rowman & Littlefield, 1998, 81.

[9] Feminist Perspectives On Rape, Stanford Encyclopedia Of Philosophy, available at http://plato.stanford.edu/entries/feminism-rape/, last visited on March 29, 2016.

[10] Marital Rape In India: A Radical Feminist Perspective, Tamanna Khosla, Mainstream Weekly, Vol III, 2.

[11] Radical Feminism On Rape, Izvorni Znanstiveni, The Hebrew University, 507.

[12] A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.

[13] Encyclopedia Of Victimology And Crime Prevention, Bonnie S. Fisher, SAGE, 2010, 721.

[14] Encyclopedia Of Domestic Violence, Nicky Ali Jackson, Routledge, 2007, 466.

[15] Proximate And Ultimate Explanations Are Required For A Comprehensive Understanding Of Partner Rape, Aaron T. Goetz, Aggression And Violent Behaviour, Elsevior, 2.

[16] A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.

[17] Social Perspectives On Violence, Thomas W Blume, Michigan Family Review, Vol. II, 3.

[18] A Review Of Marital Rape. Aggression And Violent Behavior, Martin, E. K., Taft, C. T., & Resick, P. A. (2007). 12, 329.

[19] Understanding Perpetrators of Nonphysical Sexual Coercion: Characteristics of Those Who Cross the Line, Sarah DeGue, David DiLillo, Violence and Victims, Springer Publishing Company, 1.

[20] “You Would If You Loved Me”: Toward An Improved Conceptual And Etiological Understanding Of Nonphysical Male Sexual Coercion, Sarah DeGue, David DiLillo, Aggression and Violent Behaviour, Elsevier Ltd., 517.

[21]Supra Note 19, at Page No. 3.

[22] Marital Rape: A Crime Undefined, Ayush Chowdhury, Academike, 6.

[23] Fundamentals Of Criminal Justice: A Sociological View, Steven E. Barkan, Jones & Barrett Learning, 2011, 83.

[24]Violence Against Girls and Women: International Perspectives, Janet A. Sigal, ABC-CLIO, 2013, 137.

[25] When the Bedroom is the Crime Scene: Contextualizing Intimate Partner Rape, ProQuest, 2008, 119.

[26] Family Violence: Legal, Medical, and Social Perspectives, Paul Harvey Wallace, Routledge, 2015, 355.

[27] Marital Rape Under Indian Law: A Study, Mukesh Garg, IJMSS, Vol. 1, Page No. 2.

[28] Bodhisattva Gautam v. Subhra Chakraborty, AIR 1996 SC 922.

[29] Sec. 3, Domestic Violence Act, 2005.

[30] Sec. 375, Exception, Indian Penal Code, 1860.

[31] Spousal Rape: The Uncommon Law, ABA Journal, 1980, 1088.

[32] Confronting Global Gender Justice: Women’s Lives, Human Rights, Debra Bergoffen, Routledge, 2010, 288.

[33] Family Law, Kelly Weisberg, Aspen Publishers, 2008, 84.

[34] Domestic Violence: A Multi-Professional Approach For Health Professionals: A Multi-Professional Approach For Health Professionals, Keeling, June, Mc-Graw Hill Education, 2008, 60.

[35] Bryan A. Gaener, Black’s Law Dictionary, 9th Ed. , 2009, p.434.

[36] Section 498A, Indian Penal Code, 1860.

[37]

[38] The Sex Right: A Legal History Of The Marital Exemption, Rebecca M. Ryan, American Bar Foundation, Vol. 20, 946

[39] Modern Hindu Law, Paras Diwan, 3rd ed., 62.

[40] Sec. 13(1)(i-a), Hindu Marriage Act, 1955.

[41] Sec. 27(1)(d), Special Marriage Act, 1954.

[42] Sec. 2(viii), Dissolution of Muslim Marriage Act, 1939.

[43] Sec. 10(1)(x), Indian Divorce Act, 1869.

[44] Sec. 32(dd), Parsi Marriage and Divorce Act, 1936.

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1 COMMENT

  1. As per Hindu Marriage, marriage comes with some conjugal rights and duties which are vowed by both spouses at time of marriage. Consent of sexual relationship is implicit in one of those vows. Now,you want that if one of those wove of sexual relationship needs to be removed and husband should ask for consent each time for having sexual relationship and if not you termed it as ‘marital rape’. If this is the case,then how about removing one of the responsibility of essentially maintaining his wife as his legal and moral obligation and leave it solely on the discretion and CONSENT of husband to whether to maintain his wife or not?? How about such obligation of husband termed as’Marital loot’ of husband by his wife which should be stopped?? How about a wife staying in the house of his husband without his consent or after withdrawal of his consent be charged with ‘marital house trespassing’ and punishing her for same??

    As per IPC sec 375, after amendment in 2013, fingering of woman without her consent comes under provision of rape, which effectively means even touching the vagina of woman without her consent. And since 375 is gender specific, if exception provided to husband in this section is removed, husband will be charged with rape if he touches the genitals of wife without her consent. Now, what punishment and under which sections wife will be punished if she does the same without husband’s consent. If husband will be punished but wife will be spared for same ‘crime’, it itself will be violation of Article 14 of constitution.
    Going one step further,to ensure bodily autonomy, can we have a law something like ‘marital molestation’ with gender neutral view where if one spouse ‘molest’, (like cuddling with sleeping spouse) other spouse should be punished??
    If so called marital rape will be criminalize and if husband want divorce on ground of cruelty of denial of sex by wife, will he be able to get divorce without paying alimony to wife? If no, it will be gross injustice with husband where he will be jailed if he doesn’t respect consent of wife and will have to shell out his hard earned money to his wife. It effectively means surrendering sexual and economic life and right of husband at whim and fancy or wife. And if husband says NO to fulfill sexual desire of wife and if she want divorce on this ground, then will husband be spared from giving alimony to wife? If yes, it will be unfair to husband to punish him economically for saying NO.
    Misuse- It will certainly going to be missed, just like anti-dowry law and IPC 498A. As of now, just like everything remain gift until marriage sustain and everything becomes dowry the moment relationship sours, after marital rape criminalization, every past love making will become rape and accused will be behind bar and declared rapist.
    To take a glimpse, how ‘marital rape’ law will be used, please check the increase in no of cases registered under IPC 377 by wife against husband, specially after SC judgement in Arnesh kumar case which prohibited arbitrary arrest in IPC 498A cases. To get their husband arrested immediately, wife is adding 377 along with498A to circumvent Arnesh Kumar judgement. It should be noted that till now there is not a single conviction of husband on such complain. But it has been used to cohere husband for any settlement favourable for wife including divorce and hefty alimony settlement. After criminalizing marital rape, along with 498A, 377, 506,323, 406,376 on any male member of husband family, rape case will also be registered and more money will be extorted from husband in name of amicable divorce and case settlement. In other words, another tool for ‘marital loot’ and extortion of husband.
    For victim of marital rape, get separated from your husband or get divorce on first instance without demanding any alimony. After all, in such cases your motive should be protecting yourself rather than earning money in form of alimony by showing your wounds.

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