A Run through marital rape:
When the word Rape is mentioned, one tends to think of the rape done by a stranger, and rape done by a husband in a marriage is often forgotten. It is quite unbelievable if a husband can rape his wife. After all, how can a husband availing his conjugal rights be accused of rape? It is believed that women have no right to her own body and her will is subject to that of her husband. Although marital rape is common and habitually taking place, it is very well hidden behind the closed doors of marriage in India. Marital rape can be defined as any unwanted intercourse or penetration ( vaginal , anal or oral) without the consent of wife.
Marital rape is considered as four times more worse than the common stranger rape, as the complex and personal marital relationship makes it hard for the victim to even see herself as the victim, let alone reporting the offending act to the authorities , which is why marital rape is one of the highly underreported violent crimes. Women refrain from reporting as they are financially depended of their husband after marriage and reporting the crime may result in withdrawal of financial support leaving them and their kids without food or shelter.
Women who are rape by their own husband is raped not once many times ,hence pushing them into depression many a times. Marital rape is a serious problem which is faced by millions of women around the globe quite frequently. They experience not only vaginal rape, but also oral and anal rape. The husbands often rape their wife when they are asleep or use coercion, verbal threats, physical violence or weapon to force their wife to have non consensual sex .It is difficult to have an accurate statistics on the same but the best statistics is given by the United States that one out of every seven or eight married women have subjected to marital rape.
Marital Rape and Laws
Today many countries have criminalized marital rape and have acted laws including Algeria, Canada , Belgium , Hong Kong , Taiwan , etc. India is among the thirty six countries which have not criminalized rape. Marital rape was not considered as a crime around the world until 1932.Poland is the first country to criminalize marital rape in the year 1932. Under the impact of second wave of Feminism in seventies , Australia was the first common law country to pass reform in 1976 which made marital rape a criminal offence. And since then many common law countries have developed their laws criminalizing rape in marriage. These countries include South Africa, Canada, The united States.
Throughout the history , in many society , it has been acceptable for men to force their wife into sex against her will. During olden days marriage gave husband a license to rape their own wife. This was supported when Sir Matthew Hale , 17th century Chief Justice of England wrote, ‘the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract’.
He did not use any cases or any legal statement to support his statement . He stated that , with the marriage ,wife naturally submits her legal persons and consent of sexual acts to her husband. The traditional justification for marital exemptions was the common law which says that after marriage, women becomes the property of their husband and the legal existence of women was to ‘incorporate and consolidate into that of her husband.
Doctrine of Coverture
In English and American law, doctrine of coverture refers to the legal status of women after marriage. Legally, in marriage, the husband and wife were treated as one entity. In fact, the woman’s unique existence in disappearance ended with respect to property rights and certain rights.
Under concealment, the wives could not control their property unless some arrangements were made before marriage. They could not file charges or indict them separately, and they could not make contracts. The husband may use, sell or dispose of his property (and, unless prior arrangements have been made) without his or her consent.
A woman who was under cover was called a feme covert, while a single woman or other woman who could own property and make contracts was called a feme solo. Words appear in Norman's medieval writings.
In American legal history, reforms in the late 18th and early 19th centuries began to extend women's property rights, these changes affected the rules of the cover. The widows were entitled, for example, to a percentage of her husband's property after her dower's death, and some laws required a woman's permission to sell property if it affected her power. Feme covert as a "covert-baron" or under the influence and protection of her husband, in a relationship similar to that of a king or a king.
He also noted that a husband would not give his wife anything or anything like property, nor would he make an agreement with her after the wedding because it would be like giving her something or making an agreement with her. He also said that the agreements made between the future husband and wife do not apply to marriage.
Change of Name in Marriage and Conversion
The custom of a woman who takes her husband's name into marriage may be based on the idea that the woman is one with her husband and "that is the husband." Apart from this custom, laws requiring a married woman to take her husband's name were not listed in the United Kingdom or the United States until Hawaii was adopted in the US as a state in 1959. Common law allowed anyone to change their name for life as long as it was not for fraudulent purposes.
However, in 1879, a judge in Massachusetts found that Lucy Stone could not vote in her first marriage and that she needed to use her own marriage name. Lucy Stone had badly kept her name in her marriage in 1855, making the name "Stoners" for women who kept their names after marriage.
Lucy Stone was among those who received limited voting rights, only the school committee. He has refused to comply with the law, continuing to use "Lucy Stone," which is often amended by "marrying Henry Blackwell" in legal documents and hotel records.
Marital Rape and laws in India
Even though many legal amendments have happened in India for women, criminalization of marital rape have not taken place. Though India have been advanced in almost all the fields, still rape in marriage is not considered as an offence in the Indian law.
The latest version of section 375 of the Indian Penal Code which is a precise form of section 375 of Macaulay’s Draft Penal Code. The exception clause of section 375 of the Penal Code states that, ”sexual intercourse with his own wife, wife not being under 15 years of age ,is not rape”.
According to section 376, which defines the punishments for rape, states that the rapist should be imprisoned with either with description for a term which is not less than 7 years or which may extend to life long or upto 10 years and he will be liable to pay the fine until the woman raped is his own wife and not under the age of 12 years .Once the wife is above the age of 15 , there is no legal protection accorded to his wife.
According to the Indian Penal Code, the circumstances in which a man can be prosecuted for a crime of marital rape are as follows:
1. Rape of a woman over the age of 15 is not punishable.
2. When the wife is under the age of 12, the penalty for imprisonment in any description of a term not less than 7 years but which may extend to life or up to ten years and shall also pay a fine.
3. Rape of a divorced woman, a crime punishable by imprisonment for up to 2 years and a fine;
4. When the wife is between 12 and 15 years old, the offense is punishable by imprisonment for up to two years or a fine, or both;
The protection of women form Domestic violence Act,2005 did not consider marital rape as a crime , it did consider marital rape as domestic violence. Here ,it was told that if a woman had undergone a marital rape,she can go to court and seek judicial separation from her husband.
Marital rape awakes a fear and sense of insecurity in a woman as marital rape is not just raping a woman’s body but her love and trust as well.
This definition of rape (section 375 of the IPC) requires a change. The minor definition has been criticized by Indian and international women's and children's organizations, which insist that including oral sex, prostitution and foreign penetration within the definition of rape would be unconstitutional, environmental justice or equality. Even international law now stipulates that rape can be accepted as a “sexual assault, not just a punishment, but also a threat, coercion, use of force to force a victim, or access to anything, no matter how small.” Article 2 of the Declaration to End Violence Against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not intended to make it fun, but to give the victim and not the criminal, the benefit of doubt.
Constitution of India viz-a-viz Marital exemption to rape:
The Constitution of the country is a document that reflects the soul of the nation. The Constitution of India lays down and regulates power, guarantees human rights, balances conflicting claims of civil and human interests, conforms to national traditions and experiences and acts as a means of progress and unity. Any law that fails to meet this standard is regarded as ultra vires and liable to be prosecuted by the courts and declared unconstitutional. It will now be seen that the doctrine of pardoning a marriage by rape fails to meet the standard of compliance with the provisions of Article 14 and Article 21 of the Constitution of India.
Right to Life and Personal liberty:
Article 21 of the Constitution of India enshrines the right to life and liberty. Article 21, despite the negative language , confers the fundamental right of life and personal liberty of all the persons. After the case of Manekha Gandhi v. Union of India, it became sources of all right aimed at the protection of life and personal liberty. The meaning of life thus expanded and can be narrowed to words of Field J. in the celebrated judgement of Munn v. Illinois where he held that life means ‘something more than mere animal existence’, which was further affirmed by the Supreme Court of India in the case of Bandhua Mukti Morcha v. Union of India.
As a result of this increase in jurisprudence of Article 21, the doctrine of marital exemption for rape violates a number of rights enshrined in the phrase 'right to life and liberty' under Article 21. There can be no obvious violation of Article 21. The marital exemption to rape violates right to privacy and the right to good health, all of which are regarded as an integral part of the right to life and liberty at all times.
Right to sexual privacy :
The right to privacy is not enshrined in the Constitution of India. However, in a series of cases, the Supreme Court has found that the right to privacy is constitutionally protected under Article 21. The right to privacy under Article 21 includes that any form of forced sexual intercourse violates the right to privacy. It is alleged that the doctrine of marital exemption to rape violates a married woman's right to privacy by forcing her into sexual intercourse against her wishes. In the case , State of Maharashtra v. Madhkar Narayan it was held that every women is entitled to sexual privacy and no one have the right to take that privacy from her. By making rape illegal in a marriage, the doctrine of marital exemption violates the right to privacy of the married woman and is therefore unconstitutional.
Equal protection of law :
Article 14 guarantees the right to equality before the law and equal protection of the law for all citizens of India. Treated with inequality and that social inequality is not treated equally. Two requirements for formal separation were set by the Supreme Court, in 1952: -
a. Classification should be based on understandable differences that distinguish those collected from others; and
b. Diversity must have a meaningful relationship with what the law requires.
Therefore any law that makes unnecessary distinctions or that is inconsistent with the purposes of the law is considered outside the framework of the Constitution. As far as reason is concerned, it would always depend on what the judges thought and with all the new generations of judges, there would be a new understanding of the law and a logic that made the Constitution a living book. It is important to prevent gender-based considerations in order to prevent gender-based treatments. It is therefore important when using the equality test, that caution be exercised so that the oppressed speculation of patriarchal views does not determine which classification is appropriate.
It is reported that marital rape should be prosecuted in India, as this can be achieved through the individual rights system of violence against women. Indian women's organizations have succeeded in raising public awareness and passing laws on domestic violence, but marital rape is not completely criminalized by eliminating the difference between marital rape and rape. But marital rape cannot be criminalized or punished, until legislators and society recognize women's rights within marriage.
Opinions about women’s sexuality, and therefore ideas about unmarried rape and marriage in Indian society, come from the concept of sexuality, shame and family respect, rather than women’s rights and individual independence. If reformers see rape as a crime against a woman and her own person and for the integrity of her body and personality, then marital rape and punishment can be legal. To bring about a change in existing policy, we can use the individual rights approach to work to make marital rape a crime in India, because marital rape will not be a concern for the Government until society and lawmakers realize that women have individual rights in marriage. In western countries, activists have worked within the individual rights framework in an attempt to challenge cultural views on marital relations. The individual rights paradigm can play a similar role in India, where cultural thinking prevents communities and even women's organizations from talking about the evils of marital rape.
Thought Co. (https://www.thoughtco.com/coverture-in-english-american-law-3529483)
Drishtiias marital rape (https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india)
Constitution Of India by V N Shukla
Law of Crimes by PSA Pillai
Harvard Human Rights Journal (https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/)
By Rima Harris