Marriage The major controversy that arises here
Marriage is a commencement of a new family, morethan being a physical union it is an emotional union of the spouses. Marriageis contemplated as a union of two souls who promise to enter into aneverlasting bond with each other. Whether it is consensual or contractualmarriage, marriage is a state of remaining united to a person thereby grantingthe status of husband and wife. The act of marriage capacitates the parties toall the rights and obligations available to them under law. Sexual intercourseis also considered as a right of the spouses.
Howbeit, it is here that one ofthe major loopholes of law also creeps into. The major dubiety present iswhether marriage entitles the husband to have sexual intercourse with theirwife against her wish? The question is why women are not protected against suchacts of their husband.MARITAL RAPEThe offence of rape is “exploitation of a woman,without her consent or obtaining of consent by inducing some fear, threat, by aforceful sexual intercourse”. Rape or raptus is when a man has a carnalintercourse with a lady without her consent or knowledge.
It is the “ultimateviolation of self”. It is the crime against humanity.Marital Rape, a horrendous crime, is not a conceptwhich can be easily be perceived by anyone. The word “marital” means related tomarriage and “rape” means sexual intercourse against the other person’s wish. Comprehendingthe duo, “marital rape” stands for the sexual intercourse under the veil ofmarriage but without other person’s consent.
It is a very common crime and yetis unreported. Marital Rape is one ofthe extreme forms of institutionalized violence against married woman. The majorreason being non- criminalization of this crime, law assumes that a manhas complete right to impose his wisheson his wife whenever he wishes to, irrespective of her consent or will. ‘Sex’is not an implied right in the marriage. In Ghana,India, Indonesia, Jordan, Lesotho, Nigeria, Singapore, Sri Lanka, and Tanzania,marital rape is legal. Under theIndian Penal Code, Section 375 defines rape but the exception to this sectionexcludes the forcible sexual intercourse by a husband with his wife, thus notamounting to rape.
The reason for the same being “to preserve the institutionof marriage”. The major controversy that arises here is that is there any pointof preserving such a marriage, which is itself being driven by sexual desires,irrespective of other person’s desires. It is a debatable issue.
This issue deservesmuch more attention by law courts and our law making bodies rather than theactivists. There is an urgent need for some legal provision to protect theinterests of the wives. It is one of the insidious forms of violence againstwomen. Marital Rape is so destructive that it can destroy the maritalrelationship.A sexual intercourse against the will of the wife causesnot only the physical injuries but also indelibly leaves a scar on the mostcherished possession of a woman i.
e., her dignity. Law should be developed insuch a way that all the victims of non- consensual sexual intercourse betreated and protected at par rather than discriminating on the basis of theirmarital status.
Sex- crimes arise out of physiological necessity of humanbeings to satisfy their sexual urge.HISTORICALBACKGROUNDThe viewpoint regarding rape that it cannot takeplace within wedlock can be traced back to the 17th century when SirMathew Hales stated that “husband cannot be guilty of rape committed upon hislawful wife”. R v R1, was the firstcase where marital law exemption reached the House of Lords and it was heldthat marital law exemption does not exist in the English law.
The reasonregarding the same was that marriage was taken as “implied consent” for sex andwas deemed as a irrevocable consent for having sex with her at any time hewishes to. The Model Penal Code of United States in 1962 specifically statedthat man is guilty of rape only when committed with a lady who is not his wife.The process of making it a crime had started in U.S in the 1970 and by 1993, 50states had criminalized it. In 1993, Declaration of elimination of violenceagainst Women was published which makes marital rape a violation of humanrights. Now the present position is that India is one of those 36 countrieswhere marital rape is legal.CAUSES FORCOMMISSION OF MARITAL RAPEGenderInequality: The main widespread reason for the commission of thisoffence is the existence of Gender Inequality.
Man and woman are the twopillars of the social structure; both deserve to be treated equally. Manshouldn’t exploit woman yet it is happening. Although woman constitutes a majorportion of every society, yet in no society the woman enjoy equal status. Awoman may be rich or poor, illiterate or literate, modern or conservative yetshe is always exploited by her counterpart ‘the man’. Indian society is a maledominated one, and it will remain so, if nothing happens to change it. Womenplay a crucial role in every aspect of the family affairs.
She is entitled toreceive protection and support and should be respected equally like men.Recognition should be given for the role that is played by woman. Economic Dependenceon Husband: Another reason forthe same is Economic Dependence on Husband. In India, the women are by andlarge economically backward. This backwardness of the women has been noticed bythe judiciary in a number of its pronouncements. The Supreme Court in a numberof cases held that right to economic empowerment of women is a human right ofwomen. Lack of economic independence forces many women to stay in violentrelationships.
Marriage isviewed as a contract between the parties rendering implied consent for sexualintercourse: The notion prevalent is that marriage isconsidered as an agreement between the parties to have sexual intercoursewithout any impediment. According to this rationale, a husband can never rapehis own wife and hence there can be no marital rape. A woman has to surrenderto the wishes of her husband just because of the marital relationshipirrespective of her consent for the same.
Women areconsidered as mere chattels or property: It is also one of the major foundations forthe existence of the marital rape exemption. Women should be treated as aperson and it is her right whether to indulge in a sexual intercourse or not.SocialAlienation: Women also do possess fear of social alienation. They carryfear within themselves that if they raise voice against the cruelty beinginflicted by their husbands they will be abandoned in the society and therewill be none to support them. Also the position of the society is such thatnone would consider this as an offence or any wrong.
People find it difficultto digest that women can be raped by their husbands too. Such attitude of thepeople is the reason that women fear disclosing the fact of their husband’sviolence. POSITION ININDIAN In India, “Martial Rape” is not given deserved andrequired attention. No protection is available to women who are forced forsexual intercourse by their husband. The present scenario in India is that thehusband need not ask for wife’s permission and is free to impose his will forsex on his wife. It is based upon marital exemption doctrine which provides thata man cannot be criminally made liable for raping his wife.
The rape by the socalled better halves is not considered problematic as it is considered not toharm reputation of anyone. The absence of law on the crime of marital rape is anevidence of existence of primitive thinking that a woman is subordinate to herhusband and is a property of her husband. INDIAN PENAL CODE AND MARITALRAPESection 375 of the Indian Penal Code, 1860 definesthe offence of rape, which includes within it a comprehensive definition of theoffence and furthermore some explanations and exception. The major flaw in thedefinition is the “Exception 2” which specifically mentions that “sexual intercourse or sexual acts by a manwith his own wife, the wife not being under fifteen years of age, is not rape”.So clearly, this section excludes from its purview the offence of marital rape.There may have been many justifications for this exclusion but none of it canoutweigh the mental agony and physical pain a wife has to undergo. It is anundisputed fact that the non- criminalization of this offence, is one of themajor reasons that this offence is committed.
So under this exception forcefulsexual intercourse can take place with the wife, and the husbands can lawfullyescape the punishment.Moreover until recently, before the coming of aremarkable judgment i.e., IndependentThought v Union of India2 which has nowincreased the age under this exception from 15 to 18 years. This has been awelcoming judgment because it is aimed at protecting the interests of a girlchild.
Previously, a blanket protection was available to a husband who marrieda girl within the age of 15-18 years from the offence of rape under Sec. 375,Indian Penal Code. But now that has been taken away and such husbands can’t nowescape the punishment. The offence of rape is said to be committed irrespectiveof her consent with a girl who is below 18 years of age because this is age ofconsent considered in India. In the light of this provision, previous provisionwas very much violation of Article 14 of the Constitution because it madedistinction between married and unmarried girls and also totally failed toprotect the interests of the girl child between 15-18 years who is married andwith whom rape took place without consent.
If in the present scenario, age ofConsent is 18 years, there was no reason or justification for not protectingthe interests of a girl aged 15- 18 years. The age of consent is the age whereone is said to have attained enough maturity to give consent for sexualintercourse and a girl child would not have attained maturity simply on gettingmarried. Such a provision was a mere abuse for a girl child and this judgmentof the Apex Court is laudable.Moreover, the provision legalizing the sex with agirl child was inconsistent with various other laws and the provision underIndian Penal Code was in conflict with Protection of Children from SexualOffences Act, 2012 and also Prohibition of Child Marriages Act, 2006. Under thePCMA, child marriage is defined as marriage between male below the age of 21years and female below the age of 18 years and POSCO, child is defined as anyperson below the age of 18 years.
Eventually, a child remains a child no mattermarried or unmarried. But now this analogy has been removed and it is a hopethat soon this provision be amended by the Legislature as well.MARITAL RAPE vs.FUNDAMENTAL RIGHTSThe fundamental rights which are guaranteed to everycitizen by the Indian Constitution, 1950 are violated by this provision of law.The fundamental rights that are violated are the rights enriched in theArticles 14, 15 and 21. This section makes a distinction between the rapevictims on the basis of marital status i.e., Married and Unmarried Females.
Theirony of the law is being exposed here, that is the same offence is punishableif committed against an unmarried girl or some third woman but law completelyoverlooks if the offence is being committed against his wife.MARITAL RAPE AND EQUALITY Article 14 ofthe Constitution which provides for equality and equal protection of lawjustifies classification, if such classification has reasonable nexus with theobject sought to be achieved. But now the question that arises is, if Article14 protects a person against discrimination then why it is being sanctionedunder the provisions of Section 375. The equality of status guaranteed by theConstitution of India is only a myth to millions of women for whom life isstalked by various kinds of violence within their homes.
Dignity of every womanis alike and should be so preserved by the law. An offence is an offence; thevictim ought not to be denied justice based on her marital status and herrelationship with the accused. The sole basis for providing punishment shouldbe whether it was consenting act or not. The object of laying down a law onrape is but obvious to protect the women against non-consensual sexualintercourse with them and to punish the offender and by making such aclassification, the object sought to be achieved is not being fulfilled in itstrue sense. Marriage is a sort of license used by some men touse the wife’s body and escape the punishment imposed for the similar offenceif committed on a woman other than a wife. Law should protect the dignity ofevery woman in such a way that she is not treated as a property. All acts ofsex forced on unwilling victims deserved to be treated equally as graveoffences deserve same treatment in the eyes of law.MARITAL RAPE AND PRIVACYArticles 21 provide the fundamental right to lifeand personal liberty.
This right includes within itself the right to live withhuman dignity. Also in a recent landmark judgment3,the Apex Court has held Right to Privacy is protected by the Article 21 of theConstitution. Privacy is an essential core of the human dignity and even rightto be left alone is included within privacy. From this vantage point, it can beinferred that the right to privacy is intruded upon by forceful intercourse againstwoman and should be protected by the state.
The dignity and honor of everyfemale ought to be protected against this harmful crime, so that she may alsolive her life peacefully. Right to life under Article 21 does not merelyinclude physical existence but has a much wider meaning including within it theright to live with dignity, right to health, livelihood etc. and the maritalrape exemption clearly violates the Article 21. Rightto life, would, therefore, include all those aspects of life that go on to makelife meaningful, complete and worth living. MARITAL RAPE AND PERSONAL LIBERTYThe meaning of personal liberty was first consideredin the case of A.K. Gopalan v State ofMadras4and was held to mean “nothing more than liberty of physical body.” While in thecase of Kharak Singh v State of U.
P.5, the court heldthat “Personal Liberty is a compendious term to include within itself all thevarieties of rights which go to make up the personal liberty of a man otherthan those dealt with in the several clauses of article 19(1).” Now the horizonof the term “Personal Liberty” has been expanded to include within its ambitthe “personal dignity”. Article 21 ensures the right of the women to be treatedwith decency and proper dignity.The concept of dignity is covered under thefundamental right under Article 21 and also article 1 of the UniversalDeclaration of Human Rights specifies “All human beings are born free and equalin dignity and rights.
In case of The Chairman, Railway Board v Chandrima Das6 ,Supreme Courtagain held that the offence of rape with any women violates her right to lifeand her right to live with human dignity as she is the victim of rape.PROTECTION OFWOMEN FROM DOMESTIC VIOLENCE ACT, 2005.This act defineddomestic violence for the first time. It obtains its rational from the Article15(3) which allows laws to be made in favor of women. This law was enacted inview of the rights under Article 14, 15 and 21 of the Constitution so as toprovide civil remedy to women from acts of domestic violence against them andalso to prevent their occurrence. The definition of “domestic violence” underthe act is very wide and includes within its scope verbal, emotional, verbal,physical and sexual abuse.7The orders which can be passed under the act include Protection orders (to stopviolence), Residence orders, Compensation Orders, Monetary reliefs and Custodyorders.
So the act merely provides a civil remedy and no magistrate has thepower to criminalize the offender husband under this law.A mere civilremedy would not suffice in this case, what is required is that the acts ofsuch husbands be criminalized but under Indian Penal Code as well as under thisact, nowhere has this act been made a crime. It is very unreasonable to treatmarital rape as a civil wrong and not as a crime.
JUSTIFICATIONFOR NON CRIMINALISATION OF MARITAL RAPE.Not as seriousas Non-Marital Rape: It is ageneral view among all that marital rape is not much grave as the non-maritalrape. But according to a recent National Family Health survey by Union HealthMinistry, among married women (15-49 age) who were victims of sexual violence,over 83% reported their current husband and 9% report a former husband as theperpetrators.
As reported by women, wasthat their husband used physical force to have sexual intercourse when they didnot want to (5.4%). About 4% reported that their husband forced them withthreats or in other ways to perform sexual acts they did not want to, and 3%reported that their husband forced them to perform other sexual acts they didnot want to,” said the survey report on the basis of interviews with over628,900 households.8More chances ofbeing Misused : It is a generaljustification provided in most of cases that the legal provisions on maritalrape if laid down would be misused and it would be inappropriate to lay down alaw on this point. But merely because a provision can be misused can’t be adefence for non-criminalization of marital rape. Although there are chances ofgetting false complaints on the matter and innocent husbands can be booked andput to jail, but this should not be an argument whether this offence should becriminalized or not.Marriage is asacred institution: Marriage isconsidered sacred and eternal.
It is considered that sexual intercourse is amajor need in wedlock and many reasons due to which marital rape is notcriminalized is to protect the institution of marriage. But it is also anadmitted fact, that when a husband rapes his wife the marriage is alreadydestroyed. The law cannot enforce forced cohabitation.Difficult toProve: Marital Rape isconsidered as very onerous to prove. Indeed, a woman will have to prove thatsexual intercourse took place with her without her consent under such and suchcircumstances. Although all this would be very difficult and depressing for awoman to put forward in the court premises yet the same is the procedure innon-marital rape cases. So such justifications should be clearly being avoided.
SUGGESTIONS1. MARITAL RAPE SHOULD BE CRIMINALISED: Focusing upon this horrendous crime, one questionthat strikes the mind is that why marital rape is yet not considered a crime ina country, the Constitution of which specifically provides for gender equality.Each violence act in the marriage should be recognized and penalized so as tocreate a fear among the offenders for the consequences of their acts. Primaryattention should be given to the fact whether the violence was committed or notrather than on the fact of the relationship between the parties. India is stillstruck in old age traditions and it is hard for it to admit that marital rapecan take place. There is a dire need of a law which not only recognizes maritalrape as an offence but also provides a strict punishment for the same. There isno duty bound relationship between a husband and wife where the wife needs tosurrender for the wishes of her husband and there should be some legalprovisions protecting the interests of such women.
It is also admitted that lawalone cannot change the position but can somehow contribute to reduce suchviolent acts. But unfortunately, marital rape is legal. It is behind thoseclosed doors that she is raped, when rape is itself considered an offenceagainst humanity then why such females are prevented from knocking the doors ofcourt. The way forward is to awaken the judiciary through writs under Art.32 orby public interests litigation to recognize this as a crime.
The recommendations were given by the Justice VermaCommittee which was formed to give suggestions for the quicker trial andenhanced punishment for offenders of sexual assault against women. It wassuggested by the committee that the any non- consensual act of sexualintercourse should be covered under the definition of rape and also the maritalrape exception should be removed. It was contended that there should be nodistinction and differentiation on the basis of that whether crime wascommitted within the marriage or outside it. Also it was recommended that deathpenalty should be inflicted upon the rapists. 2. SAME PUNISHMENT SHOULD BE PRESCRIBED: The sole basis of classifying an offence as rapeshould be “whether it is done without consent or not” rather than makingdistinctions on the basis of “marital status”. So what would serve the purposeis that same punishment should be provided under the law for the offence ofrape whether committed by the husband or the stranger. “Victim is victim, no matter her maritalstatus.
“So the law should not fail on this point. Inaddition to criminalizing the offence, similar punishment should be provided tothe offender. This would be very much beneficial to such victims as it wouldhave the deterring effect.3.
IT SHOULD BE MADE A GROUND FOR DIVORCE: The offenceof marital rape should be specifically made a ground for divorce. Women are thevictim when spousal rape takes place against her, and there should be somerecourse made available to her to protect her interests. The pressing need isto amend the divorce laws so as to widen its scope to include forceful sexualintercourse as a ground for separating from the spouse.
“When a lady israped by stranger, she has to forcibly with those bad memories but when a ladyis raped by her husband; she has to forcibly live with the rapist.”Although, it is an admitted fact that such act onthe part of husband could be covered under the ground of “cruelty” but stillthere is a need that marital rape should be made a separate ground and also itwould beneficial for the victims to obtain compensation for all the physicalinjuries and mental stress they have faced and also to make the legal positionclear. CONCLUSIONThe researched have tried level best to throw lighton various aspects relate with marital rape. This write up is not limited tothe meaning of marital rape but also focuses upon the need of itscriminalization, various hurdles and most importantly the suggestions to dealwith this crime.
It is acknowledged that amending the law as to make maritalrape an offence is a sensitive task and that too in a country like India wherethe new law may come into conflict with the religious beliefs and personallaws. The immediate demand is that women be protected in a wedlock and that maritalrape be declared an offence. Mere declaration would not serve the purpose,there is also a need to educate the masses the control the situation. Maritalrape is a species of rape and is a heinous crime. India has the largestdemocracy in the world and it should provide for some law on this point andshould not remain silent. More or less, every law is being misused somehow butthat cannot be the ground for not recognizing the offence.
Marriage should nomore serve as a license to rape. Rape causes severe physical and mentalinjuries. The law should not turn a deaf ear to such atrocities and violencebeing faced by the women. The researcher humbly submits that the central ideaof the paper is revolving around the criminalization of the marital rape.