In this blog post, Pramit Bhattacharya, a student of Damodaram Sanjivayya National Law University, writes about the concept of Marital Rape. The post looks into the types of Marital Rapes which have been recognized by Legal Scholars and Jurists. The post also looks tries to analyze the position of Marital Rape in India.
A civilized society stands on two pillars, men and women. In civilized societies, men and women should have equal opportunities of growth and development. But it can be seen that historically, women have been subjected to humiliation and disgrace by certain societies. Rape is the prime example of atrocities committed against women. It is one of the most gruesome crimes which can be committed against a woman. Coming to the topic of marital rape, though it is not criminalized in India, is a very conflicting and debatable issue. Women have been seen as an object of desire for a long time and have been the victim of crimes like sodomy, sexual harassment, rape, female infanticide and foeticide.
In the words of Susan Brown Miller “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? Women have wholly owned subsidiaries and not independent beings.”[1]
India is the seventh largest country in the world with a population of over 125 crore. It is the largest democracy in the world. It is a conundrum of various languages, cultures, religions, and beliefs. But in spite of such a rich heritage, we as a nation should be ashamed that the crime rate is increasing at an alarming rate. Going by the stats till now, the Crime Index of India is at 46.59 (as of 2016, April)[2] and as per the Report of NCRB, crime rate against Women as of year ending 2014 is 56.3.[3] It is very rightly said that the worth of a nation is judged by the value it gives to its women folks. Although a lot of people are advocating vigorously for women’s rights, they have yet not achieved the position they deserve to be in.
In India, marriage is just not a union between a man and a woman; it is an institution, a sacrament. It is a socially accepted norm which creates a union between a man and a woman and also gives rise to some obligations between them. According to the Hindu Scripts, a man cannot perform any of his duties without his wife being on his side. They are not only important but are equal to men. But as compared to the older times, the position of women seems to be going downhill. In India, the idea that marriage is a sacrament is far from reality. Under the hidden veil of blissful wedded life are crimes like marital rape, domestic violence, dowry deaths, etc. Marital rape is not regarded as a crime in India, and hence, carries no punishment.
Meaning of marital rape
Marital rape can be defined as the act of sexual intercourse between a husband and a wife when they are legally wedded, but the wife does not give consent for such intercourse.
The act of marriage gives a man and a woman to legally consummate their marriage. Consummation of the marriage is considered as a requirement after the marriage has taken place. In this relationship, a man, and a woman is socially permitted to have a sexual relationship and have progeny.[4] But being a part of the marriage does not give a man the right to have sexual intercourse with his wife forcefully. The right to have sexual intercourse is not an obligation on the part of the wife, and it should be consensual. She has the liberty to refuse to have sexual intercourse with her husband and can’t be forced. Marital rape is also known as Spousal Rape and is committed by one of the spouses against the other.[5]One important point which should be noted here is that there lies a difference between rape and marital rape and the terms cannot be used interchangeably. Section 375 of the Indian Penal Code, 1860 defines rape as sexual intercourse with a woman will be considered rape if the intercourse is without her consent. If the consent is derived by threatening or coercing her, it’ll be considered rape. If the consent is obtained through any deception, then also it’ll be considered as rape. If a woman is unable to give consent or does not have the capability to give a consent, for instance, the woman is of unsound mind or is a minor, then too the act will be considered as a rape [if a girl is below the age of sixteen years, and even if she gives consent, the act of having a sexual intercourse with her will amount to rape].
But a deeper reading of Section 375 bring into light a very archaic and primitive thinking which sates that if a man has a sexual intercourse with his wife, and she is not below the age of fifteen years, then even if there is no consent on the part of the wife, it will not be considered as rape.[6] From this, it is clearly evident that the choice of husband is given more preference as regards to the rights of his wife, than her choice.[7] The IPC simply oversees an act like marital rape by not even acknowledging it and having a provision for it. In one of the cases, the Court stated that the defense council was right in taking the defense the IPC does not recognize the concept of marital rape, and if the complainant were the wedded wife of the accused, the sexual intercourse would not constitute rape, even if it was by force.[8]
Types of marital rape
There are three kinds[9] of marital rape which have been identified and recognized by legal jurists and experts.
- Force-Only Rape – in what is known as force-only rape, the husband uses only that amount of force that is required to subdue their wife. The assault takes place typically after the woman has refused to any sexual intercourse.
- Battering Rape – in cases of battering rapes, women face both sexual and physical violence in their relationship. Some are battered and beaten during the sexual intercourse, or in some cases, the sexual violence may follow the physical assault. In many cases, the husband first tries through violent method to subdue his wife and then coerce her to have a sexual intercourse willfully.
- Obsessive Rape – many women also experience sexual violence which is sadistic and obsessive in nature. These assaults often involve perverse sexual acts.
Position in India
As already discussed above, marital rape means having sexual intercourse with your spouse without her consent. In India, marital rape exists in fact, but not according to law. Observation of the recent trends will reveal that domestic violence is turning out to be one of the most committed crimes against women.[10] Sexual violence, including marital rape, falls within the wide sphere of domestic violence, but due to its debatable nature (and not being criminalized yet), the exact numbers can only be guessed.[11] Sexual violence has become a very sensitive issue in India. After the “Nirbhaya Rape Case”, the government of India introduced stringent and stricter laws to ensure the safety of women, but still, marital rape wasn’t given a status of a crime. Even when Section 375 is in question as regards to the exception that if a husband has sexual intercourse with his wife without her consent, who is not below the age of 15, it wouldn’t be considered as rape, the point to ponder here is why the right to give consent is curtailed after the girl achieves the age of 15. Being in a marriage does not give a man the authority to fulfill his sexual needs.
Also, the exception provided under Sec 375 of the IPC can be said to be contrary to the Hindu Marriage Act, 1955, section 5 (c) (iii) of which states that the rightful age for a female to marry is at the age of eighteen years or above. This type of contradictions in the law leads to loopholes being exploited by the dominant party. The delay in acknowledging marital rape is clearly a fault on the part of the Legislature.
Why marital rape is still not recognized as a crime?
When discussing the issue of marital rape, the obvious question which pops up is why marital rape isn’t yet being recognized as a crime. Apparently, the United Nations has recommended India to make marital rape a punishable offense.[12]
Criminalization of marital rape was also suggested by the Verma Committee,[13] after the brutal case of Nirbhaya’s rape, which shook the Capital city of Delhi and also the entire nation. The Committee suggested that the IPC should be amended so that it differentiates between rape inside marriage and rape outside marriage. The Committee was vocal about the fact that the exception provided in the IPC relating to marital rape should be removed. Marriage can’t be considered as unqualified consent to sexual acts. When talking about consent, the relationship between the parties should become an irrelevant factor.[14] This Report was rejected by the Government by giving the argument that the institution of marriage would be destroyed if marital rape was brought under the law and the entire family system will go through a lot of stress. So, when the new sexual assault bill was passed in the year 2013, it did not bring marital rape under the ambit of law.[15]
But the question here which should be asked is whether a marriage, which supports violence, be given sacramental value or not?
The argument that the Indian Society is too traditional to criminalize marital rape is a very weak and unreasonable argument. On one hand, we talk about gender justice and equality, while on the other hand, even the basic rights are not being given.
The most ironic part here is that since marital rape is not considered as a crime, a woman cannot seek divorce from her husband on the grounds of marital rape.
Concluding Remarks
Despite the fact that marital rape hasn’t received the legal attention which is due to it, it remains one of the most heinous crimes which can be committed against a woman. The law is rife with contradictions. Having sexual intercourse with a girl below 16 years of age, even if she gives consent is rape, but if a girl above 15 years of age is married and does not consent, then also it isn’t considered as rape. The idea that a woman is being raped by her husband and cannot seek shelter anywhere else is very upsetting and mind-boggling. Marital rape destroys marriage as an institution. Many jurisdictions have broken the chains of traditionalism and have criminalized marital rape, and it is high time that India follows suit.
In India, a wife who is getting raped by her husband is expected to learn and live with the fact. The time is right to give marital rape the status of rape which is recognized under Sec 375 of the IPC, and marital rape shouldn’t be allowed to stay as a “rape which is legally permissible” by negating the element of consent.
Footnotes:
[1]Susan Brown-miller, Against Our Will: Men, Women and Rape (Penguin, 1975)
[2]http://www.numbeo.com/crime/rankings_by_country.jsp
[3]http://ncrb.nic.in/StatPublications/CII/CII2014/chapters/Chapter%205.pdf
[4]Meaning of Indian marriage, available at http://vapsoft.org/meaning-of-indian-marriage/
[5]Marital Rape, available athttp://rapeinfo.wordpress.com/2008/05/25/marital-rape/
[6]Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.; https://indiankanoon.org/doc/623254/
[7]DipaDube, License to Rape: The Indian Viewpoint, Indian Institute of Technology – Rajiv Gandhi School of Intellectual Property Law, February 14, 2006
[8]The Life and Times of an Indian Homemaker, available at: https://indianhomemaker.wordpress.com/2012/12/04/why-is-forcible-sex-or-lack-of-consent-not-rape/
[9]Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000).
[10] Supra 3, Table 5(A)
[11]Behind closed doors: Marital rape in India, available at:http://www.livemint.com/Politics/b6HcnmMqYadNzWAP05FbEO/Behind-closed-doors-Marital-rape-in-India.html
[12]http://www.lawctopus.com/academike/marital-rape-a-crime-undefined/#_edn20
[13]Ashish Mukherjee, Rape law ordinance, ndtv.com, Updated: February 02, 2013 13:48 IST
[14]The government of India,Report: Justice Verma Committee, (Ministry of Home Affairs, 2013).
[15] Modi Government’s Reasons Why Marital Rape Is Not a Crime, available at http://blogs.wsj.com/indiarealtime/2015/04/30/modi-governments-reasons-why-marital-rape-is-not-a-crime/
