Marriage The major controversy that arises here

Marriage is a commencement of a new family, more
than being a physical union it is an emotional union of the spouses. Marriage
is contemplated as a union of two souls who promise to enter into an
everlasting bond with each other. Whether it is consensual or contractual
marriage, marriage is a state of remaining united to a person thereby granting
the status of husband and wife. The act of marriage capacitates the parties to
all the rights and obligations available to them under law. Sexual intercourse
is also considered as a right of the spouses. Howbeit, it is here that one of
the major loopholes of law also creeps into. The major dubiety present is
whether marriage entitles the husband to have sexual intercourse with their
wife against her wish? The question is why women are not protected against such
acts of their husband.

MARITAL RAPE

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The offence of rape is “exploitation of a woman,
without her consent or obtaining of consent by inducing some fear, threat, by a
forceful sexual intercourse”. Rape or raptus is when a man has a carnal
intercourse with a lady without her consent or knowledge. It is the “ultimate
violation of self”. It is the crime against humanity.

Marital Rape, a horrendous crime, is not a concept
which can be easily be perceived by anyone. The word “marital” means related to
marriage and “rape” means sexual intercourse against the other person’s wish. Comprehending
the duo, “marital rape” stands for the sexual intercourse under the veil of
marriage but without other person’s consent. It is a very common crime and yet
is unreported.  Marital Rape is one of
the extreme forms of institutionalized violence against married woman. The major
reason being non- criminalization of this crime, law assumes that a man
has  complete right to impose his wishes
on 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 the
Indian Penal Code, Section 375 defines rape but the exception to this section
excludes the forcible sexual intercourse by a husband with his wife, thus not
amounting to rape. The reason for the same being “to preserve the institution
of marriage”. The major controversy that arises here is that is there any point
of 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 deserves
much more attention by law courts and our law making bodies rather than the
activists. There is an urgent need for some legal provision to protect the
interests of the wives. It is one of the insidious forms of violence against
women. Marital Rape is so destructive that it can destroy the marital
relationship.

A sexual intercourse against the will of the wife causes
not only the physical injuries but also indelibly leaves a scar on the most
cherished possession of a woman i.e., her dignity. Law should be developed in
such a way that all the victims of non- consensual sexual intercourse be
treated and protected at par rather than discriminating on the basis of their
marital status. Sex- crimes arise out of physiological necessity of human
beings to satisfy their sexual urge.

HISTORICAL
BACKGROUND

The viewpoint regarding rape that it cannot take
place within wedlock can be traced back to the 17th century when Sir
Mathew Hales stated that “husband cannot be guilty of rape committed upon his
lawful wife”. R v R1, was the first
case where marital law exemption reached the House of Lords and it was held
that marital law exemption does not exist in the English law. The reason
regarding the same was that marriage was taken as “implied consent” for sex and
was deemed as a irrevocable consent for having sex with her at any time he
wishes to. The Model Penal Code of United States in 1962 specifically stated
that 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, 50
states had criminalized it. In 1993, Declaration of elimination of violence
against Women was published which makes marital rape a violation of human
rights. Now the present position is that India is one of those 36 countries
where marital rape is legal.

CAUSES FOR
COMMISSION OF MARITAL RAPE

Gender
Inequality:  The main widespread reason for the commission of this
offence is the existence of Gender Inequality. Man and woman are the two
pillars of the social structure; both deserve to be treated equally. Man
shouldn’t exploit woman yet it is happening. Although woman constitutes a major
portion of every society, yet in no society the woman enjoy equal status. A
woman may be rich or poor, illiterate or literate, modern or conservative yet
she is always exploited by her counterpart ‘the man’. Indian society is a male
dominated one, and it will remain so, if nothing happens to change it. Women
play a crucial role in every aspect of the family affairs. She is entitled to
receive protection and support and should be respected equally like men.
Recognition should be given for the role that is played by woman. 

Economic Dependence
on Husband: Another reason for
the same is Economic Dependence on Husband. In India, the women are by and
large economically backward. This backwardness of the women has been noticed by
the judiciary in a number of its pronouncements. The Supreme Court in a number
of cases held that right to economic empowerment of women is a human right of
women. Lack of economic independence forces many women to stay in violent
relationships.

Marriage is
viewed as a contract between the parties rendering implied consent for sexual
intercourse:  The notion prevalent is that marriage is
considered as an agreement between the parties to have sexual intercourse
without any impediment. According to this rationale, a husband can never rape
his own wife and hence there can be no marital rape. A woman has to surrender
to the wishes of her husband just because of the marital relationship
irrespective of her consent for the same.

Women are
considered as mere chattels or property:  It is also one of the major foundations for
the existence of the marital rape exemption. Women should be treated as a
person and it is her right whether to indulge in a sexual intercourse or not.

Social
Alienation: Women also do possess fear of social alienation. They carry
fear within themselves that if they raise voice against the cruelty being
inflicted by their husbands they will be abandoned in the society and there
will be none to support them. Also the position of the society is such that
none would consider this as an offence or any wrong. People find it difficult
to digest that women can be raped by their husbands too. Such attitude of the
people is the reason that women fear disclosing the fact of their husband’s
violence.

 

 

POSITION IN
INDIAN

In India, “Martial Rape” is not given deserved and
required attention. No protection is available to women who are forced for
sexual intercourse by their husband. The present scenario in India is that the
husband need not ask for wife’s permission and is free to impose his will for
sex on his wife. It is based upon marital exemption doctrine which provides that
a man cannot be criminally made liable for raping his wife. The rape by the so
called better halves is not considered problematic as it is considered not to
harm reputation of anyone.

The absence of law on the crime of marital rape is an
evidence of existence of primitive thinking that a woman is subordinate to her
husband and is a property of her husband.

              INDIAN PENAL CODE AND MARITAL
RAPE

Section 375 of the Indian Penal Code, 1860 defines
the offence of rape, which includes within it a comprehensive definition of the
offence and furthermore some explanations and exception. The major flaw in the
definition is the “Exception 2” which specifically mentions that “sexual intercourse or sexual acts by a man
with 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 can
outweigh the mental agony and physical pain a wife has to undergo. It is an
undisputed fact that the non- criminalization of this offence, is one of the
major reasons that this offence is committed. So under this exception forceful
sexual intercourse can take place with the wife, and the husbands can lawfully
escape the punishment.

Moreover until recently, before the coming of a
remarkable judgment i.e., Independent
Thought v Union of India2 which has now
increased the age under this exception from 15 to 18 years. This has been a
welcoming judgment because it is aimed at protecting the interests of a girl
child. Previously, a blanket protection was available to a husband who married
a 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 now
escape the punishment. The offence of rape is said to be committed irrespective
of her consent with a girl who is below 18 years of age because this is age of
consent considered in India. In the light of this provision, previous provision
was very much violation of Article 14 of the Constitution because it made
distinction between married and unmarried girls and also totally failed to
protect the interests of the girl child between 15-18 years who is married and
with whom rape took place without consent. If in the present scenario, age of
Consent is 18 years, there was no reason or justification for not protecting
the interests of a girl aged 15- 18 years. The age of consent is the age where
one is said to have attained enough maturity to give consent for sexual
intercourse and a girl child would not have attained maturity simply on getting
married. Such a provision was a mere abuse for a girl child and this judgment
of the Apex Court is laudable.

Moreover, the provision legalizing the sex with a
girl child was inconsistent with various other laws and the provision under
Indian Penal Code was in conflict with Protection of Children from Sexual
Offences Act, 2012 and also Prohibition of Child Marriages Act, 2006. Under the
PCMA, child marriage is defined as marriage between male below the age of 21
years and female below the age of 18 years and POSCO, child is defined as any
person below the age of 18 years. Eventually, a child remains a child no matter
married or unmarried. But now this analogy has been removed and it is a hope
that soon this provision be amended by the Legislature as well.

MARITAL RAPE vs.
FUNDAMENTAL RIGHTS

The fundamental rights which are guaranteed to every
citizen by the Indian Constitution, 1950 are violated by this provision of law.
The fundamental rights that are violated are the rights enriched in the
Articles 14, 15 and 21. This section makes a distinction between the rape
victims on the basis of marital status i.e., Married and Unmarried Females. The
irony of the law is being exposed here, that is the same offence is punishable
if committed against an unmarried girl or some third woman but law completely
overlooks if the offence is being committed against his wife.

MARITAL RAPE AND EQUALITY

 Article 14 of
the Constitution which provides for equality and equal protection of law
justifies classification, if such classification has reasonable nexus with the
object sought to be achieved. But now the question that arises is, if Article
14 protects a person against discrimination then why it is being sanctioned
under the provisions of Section 375. The equality of status guaranteed by the
Constitution of India is only a myth to millions of women for whom life is
stalked by various kinds of violence within their homes. Dignity of every woman
is alike and should be so preserved by the law. An offence is an offence; the
victim ought not to be denied justice based on her marital status and her
relationship with the accused. The sole basis for providing punishment should
be whether it was consenting act or not. The object of laying down a law on
rape is but obvious to protect the women against non-consensual sexual
intercourse with them and to punish the offender and by making such a
classification, the object sought to be achieved is not being fulfilled in its
true sense.

Marriage is a sort of license used by some men to
use the wife’s body and escape the punishment imposed for the similar offence
if committed on a woman other than a wife. Law should protect the dignity of
every woman in such a way that she is not treated as a property. All acts of
sex forced on unwilling victims deserved to be treated equally as grave
offences deserve same treatment in the eyes of law.

MARITAL RAPE AND PRIVACY

Articles 21 provide the fundamental right to life
and personal liberty. This right includes within itself the right to live with
human dignity. Also in a recent landmark judgment3,
the Apex Court has held Right to Privacy is protected by the Article 21 of the
Constitution. Privacy is an essential core of the human dignity and even right
to be left alone is included within privacy. From this vantage point, it can be
inferred that the right to privacy is intruded upon by forceful intercourse against
woman and should be protected by the state. The dignity and honor of every
female ought to be protected against this harmful crime, so that she may also
live her life peacefully. Right to life under Article 21 does not merely
include physical existence but has a much wider meaning including within it the
right to live with dignity, right to health, livelihood etc. and the marital
rape exemption clearly violates the Article 21. Right
to life, would, therefore, include all those aspects of life that go on to make
life meaningful, complete and worth living.  

 

 

MARITAL RAPE AND PERSONAL LIBERTY

The meaning of personal liberty was first considered
in the case of A.K. Gopalan v State of
Madras4
and was held to mean “nothing more than liberty of physical body.” While in the
case of Kharak Singh v State of U.P.5, the court held
that “Personal Liberty is a compendious term to include within itself all the
varieties of rights which go to make up the personal liberty of a man other
than those dealt with in the several clauses of article 19(1).” Now the horizon
of the term “Personal Liberty” has been expanded to include within its ambit
the “personal dignity”. Article 21 ensures the right of the women to be treated
with decency and proper dignity.

The concept of dignity is covered under the
fundamental right under Article 21 and also article 1 of the Universal
Declaration of Human Rights specifies “All human beings are born free and equal
in dignity and rights. In case of The Chairman, Railway Board v Chandrima Das6 ,Supreme Court
again held that the offence of rape with any women violates her right to life
and her right to live with human dignity as she is the victim of rape.

PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.

This act defined
domestic violence for the first time. It obtains its rational from the Article
15(3) which allows laws to be made in favor of women. This law was enacted in
view of the rights under Article 14, 15 and 21 of the Constitution so as to
provide civil remedy to women from acts of domestic violence against them and
also to prevent their occurrence. The definition of “domestic violence” under
the act is very wide and includes within its scope verbal, emotional, verbal,
physical and sexual abuse.7
The orders which can be passed under the act include Protection orders (to stop
violence), Residence orders, Compensation Orders, Monetary reliefs and Custody
orders. So the act merely provides a civil remedy and no magistrate has the
power to criminalize the offender husband under this law.

A mere civil
remedy would not suffice in this case, what is required is that the acts of
such husbands be criminalized but under Indian Penal Code as well as under this
act, nowhere has this act been made a crime. It is very unreasonable to treat
marital rape as a civil wrong and not as a crime.

JUSTIFICATION
FOR NON CRIMINALISATION OF MARITAL RAPE.

Not as serious
as Non-Marital Rape: It is a
general view among all that marital rape is not much grave as the non-marital
rape. But according to a recent National Family Health survey by Union Health
Ministry, 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 the
perpetrators.  As reported by women, was
that their husband used physical force to have sexual intercourse when they did
not want to (5.4%). About 4% reported that their husband forced them with
threats 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 did
not want to,” said the survey report on the basis of interviews with over
628,900 households.8

More chances of
being Misused : It is a general
justification provided in most of cases that the legal provisions on marital
rape if laid down would be misused and it would be inappropriate to lay down a
law on this point. But merely because a provision can be misused can’t be a
defence for non-criminalization of marital rape. Although there are chances of
getting false complaints on the matter and innocent husbands can be booked and
put to jail, but this should not be an argument whether this offence should be
criminalized or not.

Marriage is a
sacred institution: Marriage is
considered sacred and eternal. It is considered that sexual intercourse is a
major need in wedlock and many reasons due to which marital rape is not
criminalized is to protect the institution of marriage. But it is also an
admitted fact, that when a husband rapes his wife the marriage is already
destroyed. The law cannot enforce forced cohabitation.

Difficult to
Prove: Marital Rape is
considered as very onerous to prove. Indeed, a woman will have to prove that
sexual intercourse took place with her without her consent under such and such
circumstances. Although all this would be very difficult and depressing for a
woman to put forward in the court premises yet the same is the procedure in
non-marital rape cases. So such justifications should be clearly being avoided.

SUGGESTIONS

1.     
MARITAL RAPE SHOULD BE CRIMINALISED: Focusing upon this horrendous crime, one question
that strikes the mind is that why marital rape is yet not considered a crime in
a country, the Constitution of which specifically provides for gender equality.
Each violence act in the marriage should be recognized and penalized so as to
create a fear among the offenders for the consequences of their acts. Primary
attention should be given to the fact whether the violence was committed or not
rather than on the fact of the relationship between the parties. India is still
struck in old age traditions and it is hard for it to admit that marital rape
can take place. There is a dire need of a law which not only recognizes marital
rape as an offence but also provides a strict punishment for the same. There is
no duty bound relationship between a husband and wife where the wife needs to
surrender for the wishes of her husband and there should be some legal
provisions protecting the interests of such women. It is also admitted that law
alone cannot change the position but can somehow contribute to reduce such
violent acts. But unfortunately, marital rape is legal. It is behind those
closed doors that she is raped, when rape is itself considered an offence
against humanity then why such females are prevented from knocking the doors of
court. The way forward is to awaken the judiciary through writs under Art.32 or
by public interests litigation to recognize this as a crime.

The recommendations were given by the Justice Verma
Committee which was formed to give suggestions for the quicker trial and
enhanced punishment for offenders of sexual assault against women. It was
suggested by the committee that the any non- consensual act of sexual
intercourse should be covered under the definition of rape and also the marital
rape exception should be removed. It was contended that there should be no
distinction and differentiation on the basis of that whether crime was
committed within the marriage or outside it. Also it was recommended that death
penalty should be inflicted upon the rapists.

2.     
SAME PUNISHMENT SHOULD BE PRESCRIBED: The sole basis of classifying an offence as rape
should be “whether it is done without consent or not” rather than making
distinctions on the basis of “marital status”. So what would serve the purpose
is that same punishment should be provided under the law for the offence of
rape whether committed by the husband or the stranger.

                                      “Victim is victim, no matter her marital
status.”

So the law should not fail on this point. In
addition to criminalizing the offence, similar punishment should be provided to
the offender. This would be very much beneficial to such victims as it would
have the deterring effect.

3.     
IT SHOULD BE MADE A GROUND FOR DIVORCE:  The offence
of marital rape should be specifically made a ground for divorce. Women are the
victim when spousal rape takes place against her, and there should be some
recourse made available to her to protect her interests. The pressing need is
to amend the divorce laws so as to widen its scope to include forceful sexual
intercourse as a ground for separating from the spouse.

“When a lady is
raped by stranger, she has to forcibly with those bad memories but when a lady
is raped by her husband; she has to forcibly live with the rapist.”

Although, it is an admitted fact that such act on
the part of husband could be covered under the ground of “cruelty” but still
there is a need that marital rape should be made a separate ground and also it
would beneficial for the victims to obtain compensation for all the physical
injuries and mental stress they have faced and also to make the legal position
clear.

 

CONCLUSION

The researched have tried level best to throw light
on various aspects relate with marital rape. This write up is not limited to
the meaning of marital rape but also focuses upon the need of its
criminalization, various hurdles and most importantly the suggestions to deal
with this crime. It is acknowledged that amending the law as to make marital
rape an offence is a sensitive task and that too in a country like India where
the new law may come into conflict with the religious beliefs and personal
laws. The immediate demand is that women be protected in a wedlock and that marital
rape be declared an offence. Mere declaration would not serve the purpose,
there is also a need to educate the masses the control the situation. Marital
rape is a species of rape and is a heinous crime. India has the largest
democracy in the world and it should provide for some law on this point and
should not remain silent. More or less, every law is being misused somehow but
that cannot be the ground for not recognizing the offence. Marriage should no
more serve as a license to rape. Rape causes severe physical and mental
injuries. The law should not turn a deaf ear to such atrocities and violence
being faced by the women. The researcher humbly submits that the central idea
of the paper is revolving around the criminalization of the marital rape.