“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a women to hate husband, I would hate him as a rapist.”- Philippa Gregory, The Red Queen.
Rape is a sexual assault involving sexual intercourse or penetration without the consent of the person. The act of rape maybe carried out by coercion or by someone in authority. It may be carried against a person who is incapacitated or unable to resist such assault. This will include a person incapable to giving consent or any person who is unconscious, incapacitated, or a person who is a minor. Rape is penalized in India under section 375 and 376 of Indian Penal Code.
Marriage in India is a sacramental affair. It basically is a contract which legalizes sexual intercourse between spouses. It is a socially and legally sanctioned union between a man and a women. The definition and nature of marriage however varies among different cultures and religions. Hindu Marriage Act, Special Marriage Act, Indian Christian Marriage Act and Parsi Marriage and Divorce Act are some of the legislation in India which govern marriages of different religions and communities. From such marriages sometimes arises the issue of marital rape.
Marital rape is also called as spousal rape. It is an act of sexual intercourse with one’s spouse without the spouse’s consent. The essential element here would be lack of consent and does not necessarily involve physical violence. It is considered as a form of domestic violence. Custom is an important part of our legal system and in customary law marital rape is not considered as rape. Section 375 of IPC has an ancient approach. The exception mentioned in it says “Sexual intercourse by a man with his own wife, the wife not being under the age of 15 years of age is not rape.” Section 376 deals with punishment of rape. Marital rape has been criminalized by 150 countries as of 2019. Unfortunately India remains to be one of the 36 countries where it is not criminalized. Poland was the first country in the world to penalize marital rape in 1932.
Marital rape clearly violates the right of a women to live with dignity and it is submitted that the exception given under section 375 is violative of article 21 of the Indian constitution. In a leading case of Suchita Srivastava v. Chandigarh Administration the SC equated the right to make choices related to sexual activity with the rights to personal liberty, privacy, dignity, bodily integrity under article 21 of the constitution. This case was basically in relation to the issue of consent for the medical termination of pregnancy. The patriarchal framework of the society has often considered women as a property of some sort. This particular concept has impacted the legislatures in casting aside the concept of marital rape by providing it a cover of wedding right of the spouse.
Rape is not only a crime against women in general but also an infringement of a person’s idea of life and liberty and individual freedom as well as total and complete ignorance of their consent. It has been demonstrated that marital rape has consequences on women’s health mental as well as physical. By not criminalizing marital rape out country is failing in its obligation of providing sex equity which includes security from manhandling and wrong doing. Non-criminalization of marital rape probably comes through the British era. At the time when IPC was drafted married women were not considered as separate entity and which obviously did not recognize men and women as equals. The identity of women was merged with her husband under “doctrine of curvature”. Marital rape violates article 14 of the constitution as well.
In 2005 Protection of Women from Domestic Violence act was passed which considers marital rape as a form of domestic violence. A women can go to the court and apply for separation from her husband for marital rape. Domestic violence is India is a huge problem. As recent as 2019 a report by National Crime Records Bureau’s (NCRB) says that about 70% of women in India are victim of domestic violence. According to this report a women is raped every 16 minutes and experience cruelty at the hand of her in laws every 4 minutes. Rajasthan was recorded as the state for having highest number of rape rate in India at 4.9%. This is troublesome but not shocking. According to a report by National Family Health Survey (NHFS) 2015-16 report 5.4% of married women are raped by their husband. This report also says that 99.1% of rape cases goes unreported. The reason for this is rape cases take a long time in our judicial system to resolve. There are a lot of examples for that say the Nirbhaya’s case which happened in 2012 but the decision to finally punish the rapist was given 7 years after the case on 20th march, 2020. After this case many NGO’s and organizations have brought up the topic that women are suffering from marital rape but the government has paid no heed to their arguments. Verma committee after the Delhi gang rape case suggested that marital rape should be included within the ambit of section 375 of IPC but government has not paid any attention to it. In 2013 the UN Committee on Elimination of Discrimination against Women also recommended for criminalization of marital rape. The Commission on Human Rights in its fifty-first session in its resolution which was titled “The elimination of violence against women” has also recommended that marital rape should be criminalized. In 2013 National Records Crime Bureau (NCRB) reported over 118,000 domestic violence cases.
There are a lot of people educated and well learned people who also believe that marital rape concept doesn’t exist and that it need not be addressed. Former chief justice of India Dipak Misra has also said that marital rape should not be a crime in India. “I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” were his exact words. There have been lots of petitions before the courts to declare marital rape as rape however they have all been unheard or no action has actually been taken on that. In 2015 in a case before the Supreme Court called Arnesh Kumar v. State of Bihar it was held that criminalizing marital rape would be the collapse of the social and family systems amidst the already existing biased laws. It’s not only judiciary’s duty to safeguard women but it is also needed that it should be imbued in the conscience of the nation.
One of the most horrific case of marital rape is the case of Phulmoni Dasi also known as Queen-Empress v. Hari Mohan Maiti. It was an early decision in 1881. In this particular case Phulmoni Devi who was 11 years old died of excessive bleeding after her husband Hari Mohan who was in his mid-thirties tried to consummate their marriage. Even after this the husband was acquitted as the laws on rape exempted marital rape from its ambit. At that time it allowed a husband to have sexual intercourse with the wife if she had attained the age of 10. However in 2017 Supreme Court in a landmark judgement said in relation to exception 2 of section 375 of IPC that sex with a minor wife is rape. This was laid down in Independent Thought v. Union of India. But no such protection about women over the age of 18 is given. Lots of women’s organization’s and National Commission for Women has also suggested “sexual intercourse by a man with his wife without her consent also need to be considered as sexual assault”. In State of Maharashtra v. Madhkar Narayan Supreme court has held that every women is entitled to her sexual privacy and it is not open to anyone to as and when violate her privacy. In Vishakha v. State of Rajasthan this right was extended to working environments.
In 2005 The Protection of Women from Domestic Violence Act was passed although it doesn’t consider marital rape as an offence it does consider it as a form of domestic violence. She can go to the court and apply for judicial separation from her husband however it doesn’t stop the crime from being committed rather gives a sort of remedy after it has been committed. If we talk about remedies then the following can be taken on point:
Women can file compliant under section 498 A of the Indian Penal Code against their husbands or the relatives of husband who subjects her to cruelty.
Section 12 of Protection of Women against Domestic Violence act can also be used by the wife to file for judicial separation from their husband who has assaulted her.
The number of marital rape cases are increasing and it is high time that the judiciary takes action for criminalizing it. Marital rape is not only discriminatory but also violative of some basic provision of the constitution including article 14 and 21 and violative of a women’s right to live with dignity. There are lots of reforms in today’s world and this matter needs to be dealt with so that there is progress in a real sense. Criminalization of marital rape is the need to the hour to protect the women in today’s society. A women can bring in a criminal case against her husband for criminal assault or injury but what is needed is making marital rape an offence so that the crime is stopped even before it is committed. A women consenting to marriage is definitely not consenting to be raped by her husband.
When we talk about an overview of women in today’s society then the role of women have significantly changed and for the better. Women have attained success in different fields and a large percentage of women all around the world are financially and socially independent. There are a lot of legislations and statutes especially for the protection of women. They provide a wide range of rights available for them and protect them from the patriarchal society’s malpractices in need. Some of the prevalent legislations for the protection of women are given below:
Dowry Prohibition Act, 1961.
The concept of dowry basically means giving cash or movable or immovable property to the groom’s family at the time of the marriage by the bride’s family. However dowry can go either ways that is from the groom’s parents to the bride’s or vice versa. The concept of dowry is present in every religion and culture and it has been going on since time immemorial. Because of this particular legislation now taking or giving of dowry is a criminal offence. This particular piece of legislation have removed great evil from the society as women were tortured or harassed even killed as a result of demanding dowry.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and redressal) Act, 2013.
This particular piece of legislation seeks to protect women from sexual harassment at their workplace. Vishaka V. State of Rajasthan is a landmark judgment in this regard. This act provides for the establishment of internal complaints committee to hear matters relating to sexual harassment.
Maternity Benefit Act, 1961.
This act basically regulate the employment of women in any industrial establishment before and after the child birth. A women is entitled for 12 weeks of paid leave out of which 6 weeks is post-natal leave.
Hindu Succession Act, 1956.
Earlier men and women were not treated equally and therefore the women did not have any rights of inheriting the properties. However in 2005 there was an amendment which brought a change providing the right to the women to inherit properties.
There are lot of other legislations providing for the rights and protection of women. Section 125 of Crpc is one such example which provides for maintenance of women after divorce even Muslim Women (Protection of Rights on Divorce) is also a legislation for the betterment of the Muslim women. The role of women in today’s society and the change from the ancient times can be seen by throwing light in areas like politics, sports, education, employment sector etc. Women are excelling in every field. Where earlier women were not given even basic rights of literacy and inheritance have now significantly changed. The change have created a positive impact in the society. There are certain areas which needs to get recognition. Criminalizing marital rape is the need of the hour. Since women had no idea about their rights and certain legislations didn’t exist they were unaware and oppressed but now the situations have changed and women instead of living with crimes happening against them can actually do something about it.
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Written by: ANUSHKA SINHA
College: KLE Society’s Law College
Year: 4th Year BBA LLB