Published on: 12th October 2024
Authored by: Parnika Basak
Shyambazar Law College, University of Calcutta
Abstract
Marital rape as the term suggests is the forceful penetration on the part of the[1] husband without the actual consent of wife or spouse after getting entangled in the bond of marriage. Despite being a serious violation of human rights, it remains shrouded in silence and stigma. This Article embodies a critical analysis of existing laws and policies that reveals marital rape as a legal lacuna and the need for an immediate reform by perpetuating impunity and victim- blaming. This paper argues that Marital rape is a manifestation of patriarchal power structures, reinforced by societal norms and gender stereotypes. Through the feministic point of view this article highlights the urgent need for comprehensive legal reforms, increased awareness, and support services for survivors. By acknowledging marital rape as a heinous crime, we can work towards creating a safer and more equitable society for all individuals, regardless of their marital status or gender.
Keywords: Marital Rape, intimate partner, violence, gender-based violence, patriarchal norms, legal reforms, human rights.
Introduction
Marital Rape – A legal Lacunae
In the old law that is of IPC (Indian Penal Code, 1860), under Section 375 the term “Rape” has been included which says that if a man before or after marriage whatsoever, forcefully without the actual consent of the spouse inserts or penetrates the male genital/penis inside the “vagina” or “labia majora”, then its accountable to “Rape” under this Section. Whereas under the new Act enacted on 1st July 2023, BNS (Bhartiya Nyaya Sanhita 2023), the term “Rape” has been covered under sections 64, 65(1), 65(2), 67, 68, 70(1), 70(2), 70, and 71, respectively. Among which Section 67 of BNS, covers sexual intercourse on the part of the husband during separation without the will/ consent of his wife resulting to “Rape”. Like other forms of domestic violence, marital rape is also about exerting power and control by dominance over one’s partner. But there’s no law as such till date defining the exact term “marital rape”. Historically, marital rape was not considered as a crime which is still prevalent in today’s era. As of 2011 record, at least 52 countries had explicitly made marital rape a criminal offence, and according to 2006 UN Secretary-General report, at least 104 countries criminalize marital rape- if not under explicit marital rape, then under general; rape laws[2]. Yet, despite all the laws and regulations brought in till date in the judiciary, the legal systems in many countries including that of India continue to reflect the belief that rape within the marriage isn’t considered as “Rape”, technically. Regardless of all the challenges faced by women in our society, hardly any cases as such are reported. Despite of all the laws enshrined in the legal fraternity against rape, barely the prosecutors are punished, prosecuted in practice
At present, only 52 countries have laws recognising marital rape as a crime. Yet in India it is still not recognised as a heinous crime by both law and society. According to new provision Section-63 of BNS (Bhartiya Nyaya Sanhita, 2023) it is considered as “Rape” and a punishment is inflicted on the perpetrator, only if the women rape victim suffers any kind of bodily injury or harm caused by her husband until she attains the age of 18 years, and it is proved that the husband is found guilty of committing rape then he shall be liable for punishment. But above the age of eighteen if the women tend to suffer sexual violence, forceful penetration, or some sort of genital injury caused due to it, then it wouldn’t count as “Rape”. It was in the era of 1970’s, when it was justified as two adults were entangled in a marital relationship, the women being chattel to their husbands, and the husband being in dominance had enjoyed the privilege over her body. But after post 1970, this theory of dominance was no longer applicable in the forefront of the judicial fraternity, due to the intervention of the term “Gender Equality”, the women being treated equal with men. In the most recent scenario, it is justified that marriage being a civil contract and sexual contact being a part of it, no law must interfere between the marital relationships between husband and wife.
Origin of marital rape
The first term evolved among the British community that “rape” should be considered as a crime, which dissolves the purity and sanctity of an individual. They were the first in India to introduce rape laws in the 17th century. It’ s origin was in the year of 1736 when according to a criminal treatise of England that pronounces “History of the Pleas of the Crown”, that originally defines that a husband cannot be found guilty of rape that he commits upon his legal wife, for they are being united upon the ties of a valid marriage, which naturally over powers the husband to do whatever they like to do with his lawful wife, which she (the wife) cannot resist as per the matrimonial validation. However, after various new judicial advancements made by different courts around the globe, the theory is no longer followed; that being said marriage is no longer considered as a submissive and hierarchical power, where the woman reluctantly subsided under the patriarchal dominancy rather both the gender is being termed as “partnership of equals” in the eyes [3]of society and justice.
Need to reformation in marital rape exception
In the recent trend, the Hon’ble Delhi High Court observed in RIT Foundation v. Union of India, that a woman (a minor wife) has a right to deny the sexual activities inflicted on the part of the husband. This has marked as a positive social reformation within the stringent legislation on marital rape under Section 375(exception2) of the Indian Penal Code (IPC)1860.
Contentions raised by the Respondent:-
- The marital rape exception should not be treated as a different offence justifying that it would lead to the sabotage of the marriage institution. As per J. Rajiv Shakdher, marital rape can be considered as rape and claimed that exception 2 of Section 375 as unconstitutional. Section 376B of IPC (Indian Penal Code), 1860 and Section 198B of CrPC (Code of Criminal Procedure), 1972 were considered to be violative to Articles 14, 15, 19(1)(a) and 21 of the Indian Constitution respectively and can be therefore held as unconstitutional in concern of the husband who procures sexual intimacy/ intercourse with his wife not below the age of 18 years.
- C. Hari Shankar, observed that there are multiple relationships between a man and woman including husband and wife, and that the sanctity of marriage has to be preserved. This relationship of husband and wife includes “legitimate expectation of sex” which needs to be observed. The instance of marital rape is considered to be “imposed conception” was disregarded by him. Thus, marriage being an institution should be inclusive of both emotional and psychological unity.
Contentions raised by the Petitioner:-
- Marital rape exception in the penal provisions lacks the goals imbibed in the Constitution which thereby includes autonomy, dignity and gender equality[4] under the Articles 15, 19(1)(a) and 21 respectively.
- The petitioner is against the notion that the marital rape exception shouldn’t be entertained as it further entertains the husband in thinking that woman are their personal property after marriage and her “sexual autonomy, bodily integrity and human dignity under Article 21 are taken away as the husband plays the part of her sexual master, whom they have control and dominance on.
- It violates Article 14 (Right to Equality) of the Indian Constitution by differentiating between a married and an unmarried woman by denying equal rights to them.
Criminalizing marital rape: A call for Legal Reforms
1. Explicitly Define Marital Rape
> Clearly define marital rape in legislation, including the use of force, coercion, or lack of consent.
> Ensure the definition encompasses various forms of sexual assault, including penetration, touching, and other non-consensual sexual acts.
2. Remove exemptions for spouses
>Eliminate languages that exempts spouses from rape charges, ensuring equal protection under the legal system.
>Abolish the “marital rape exemption”, which implies consent by virtue of marriage.
3. Consent-based approach
>Adoption of a specific consent-based approach, recognizing that consent can be withdrawn at any time.
>Ensuring laws that emphasize the importance of enthusiastic, ongoing consent for sexual activity.
4. Strengthen evidence standards
>Prioritize survivors’ testimonials and experiences while providing evidences.
>Allow for various forms of evidences, including witness statements, medical records and expert opinions.
5. Provide support services
>Establish comprehensive support services for survivors and victims.
>Arrange for counseling and rehabilitation resources.
>Providing legal aid and advocacy
6. Education and awareness
>Promote education and awareness campaigns to challenge harmful societal attitudes.
>Addressing myths and misconceptions relating or surrounding marital rape issues.
>Educating law enforcement regulation committee, judiciary, and healthcare professionals on handling marital rape cases.
7. Holding the perpetrators accountable
>Ensuring perpetrators face severe consequences, including both criminal charges and sentencing.
>Implementation measures to prevent re-victimization during legal proceedings.
Additional recommendations:
>Collecting and analyzing data on marital rape to inform various legal policies and legislations in order to bring reformations
>Engaging with the victims and survivors, advocates and experts to ensure inclusive and effective reformation available[5].
>Considering restorative justice approaches for survivors who prefer alternative resolution methods.
Conclusion
The researchers have tried their best to provide insights about the nature of crime of marital rape. In spite of the present scenario where marital rape is in still continuation in our society, the legal fraternity taking it lightly, is itself a sign of indignity for women in India. According to the Indian judiciary, a women aged less than 18 years of age (16 years) having consensual sex amounting to “rape”, whereas a married women who is being forcefully compelled by her lawful husband to have a sexual intercourse would not amount to rape, with a justification she being the lawful wife is within a sacred marriage contract and her husband has every lawful right to touch his wife, which must not be a matter of concern for the judiciary. This type of intricacies we are still facing in the technological era of 21st century. The UN through its committee on Elimination of Discrimination[6] against Women had brought into light the legal lacunae in our judiciary, and opinionated on criminalizing marital rape at the utmost urgency in India. The Justice Verma Committee that formed during the Nirbhaya Case of 2012, when the rapists were being imposed with criminalization of various sexual offences but that of marital rape was completely disregarded. This was again justified by the legal fraternity that criminalizing marital rape would bring unnecessary stress on the institution of marriage. The worst disadvantage being, the wife is being compelled to live under one roof with that “rapist” husband thereby continuing marriage.
Therefore, there lies an urgent need to bring reformative and substantial changes with regard to laws regulating marital rape. Here are some suggestions relating to it:
- Marital rape must be criminalized under the new criminal laws BNS (Bhartiya Nyaya Sanhita) 2023, BNSS (Bhartiya Nagarik Suraksha Sanhita) 2023 respectively.
- The punishment for marital rape should be the same as provided for rape under Sections 65, 66 and 67 of the BNS (Bhartiya Nyaya Sanhita)2023.
- The husband should not be allowed to take the plea that there was a lack of resistance on his spouse’s part in such a case.
- Marital rape must be included as a direct ground of divorce under all the laws available in the judicial system.
- The Court must be unbiased and carefully investigate the facts and circumstances of each case with due diligence to bring out in the forefront whether the wife has been forcefully compelled to not raise their voices against them.
Henceforth, after regularizing all the above laws and regulations, marital rape can be curbed from occurring in our society in the upcoming future.[7]
References:
[1] (2018) Criminalisation of marital rape in India – manupatra. Available at: http://docs.manupatra.in/newsline/articles/Upload/8787A55C-D93F-4589-8A68-A9A032AFAF0E.pdf (Accessed: 28 August 2024).
[2] Khan, S. (2024) Case comment on RIT Foundation v. Union of India, Law Adda. Available at: https://www.lawadda.in/2024/01/22/case-comment-on-rit-foundation-v-union-of-india/ (Accessed: 28 August 2024).
[3] Khan, S. (2024) Case comment on RIT Foundation v. Union of India, Law Adda. Available at: https://www.lawadda.in/2024/01/22/case-comment-on-rit-foundation-v-union-of-india/ (Accessed: 28 August 2024).
[4] Khan, S. (2024) Case comment on RIT Foundation v. Union of India, Law Adda. Available at: https://www.lawadda.in/2024/01/22/case-comment-on-rit-foundation-v-union-of-india/ (Accessed: 28 August 2024).
[5] Kumar, D. (2024) A critical study on marital rape, 4 February. Available at: https://thelegalquorum.com/a-critical-study-on-marital-rape/ (Accessed: 28 August 2024).
[6] Sen, A. (2016) Marital rape and the law in India, iPleaders. Available at: https://blog.ipleaders.in/marital-rape-law-india/ (Accessed: 28 August 2024).
[7] Sen, A. (2016) Marital rape and the law in India, iPleaders. Available at: https://blog.ipleaders.in/marital-rape-law-india/ (Accessed: 28 August 2024).
