INTRODUCTION

“A quick turn around a corner
and my planet becomes sand
on the shore of a dying Universe.” [1]
A life of subordination, violence, abuse, taunts, labour and submission: Such is thy life, O woman!

A very distinguishing consequence of living in a patriarchal society is that we are enveloped by an atmosphere of male dominating conventions and customs, which brings with itself innumerable atrocities and agonies against women. RAPE is one of the most heinous crimes that can be inflicted on a person- robbing the victim of her dignity and self-respect, leaving her entire life scarred and void. The Oxford Dictionary defines it as the crime, typically committed by a man, of forcing another person to have sexual intercourse with the offender against their will. In India, ninety two women become targets of this monstrosity every day.[2]

MARITAL RAPE is one of the most appalling forms of rape. Also known as spousal rape and rape in marriage, it can be described as the rape committed by the person to whom the victim is married. It is synonymous to sexual abuse and domestic violence. The most petrifying fact is, it has not been criminalised and made an offence in the country where equality and dignity are the proclaimed to be Fundamental Rights of all its citizens. Marital Rape has been declared as an exception to rape under Article 375 of the Indian Penal Code.

CULTURAL VIEW OF MARRIAGE AND SPOUSAL RAPE

“Religion has the capacity to silence critical thinking and create blindness in entire groups of people. It can infect the minds of followers so completely as to allow the most egregious sexual acts to go unchallenged for centuries.” [3]

Marriage as a social institution in Indian society is viewed with utmost respect and is often regarded as a symbol of spiritual growth, a sacrament. However, there are various conventions appended to the role of a married woman in India. It is often deemed that by marriage, a woman gives irrevocable consent for her husband to have sex with her any time he demands it.

This view was also taken by Sir Matthew Hale, in History of the Pleas of the Crown (1736), where he wrote that the wife “hath given up herself in this kind unto her husband, which she cannot retract.” Thus, the question of rape holds no space here, or is an impossible situation..

Sex within marriage is considered a duty. This concept of ‘conjugal sexual rights’ has the purpose to prevent sin (in the form of adultery and temptation) as well as to enable procreation. The Bible at 1 Corinthians 7:3-5 states that:

“The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control.”

The above is interpreted to render marital rape impossibility. Karl Marx once very rightfully remarked that religion is the opium of the people, owing to which India still fails to acknowledge this atrocity while thousands of victims still lurk in the hope of justice.

RAPE IN MARRIAGE: AN EXCEPTION

According to Section 376 of the Indian Penal Code, 1860, the two essential ingredients required to establish rape are:
1. Sexual intercourse by a man with a woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses of the section.
After laying down the essential ingredients of rape the Section goes on to state that, sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

As per Section 376 A of the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:
1. When the wife is between 12 – 15 years of age, punishable offence;
2. When the wife is below 12 years of age, punishable offence;
3. Rape of a judicially separated wife, punishable offence;
4. Rape of wife of above 15 years in age is not punishable.

Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But there is no standard of measure or interpretation of the terms, ‘perversion’ or ‘unnatural’. The Protection of Women from Domestic Violence Act, 2005 did consider marital rape as a form of domestic violence.

A Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape.[4] In the insant case, Vikash, who allegedly drugged and raped his wife, was acquitted after the judge substantiated that Indian rape laws don’t apply to married couples. The woman claimed that her marriage was not legal because she had been abducted against her will, after being sedated by the accused and his father, who forced her to sign a marriage certificate while she was intoxicated, in a registry office situated in Ghaziabad. Her husband then raped her on several occasions and threatened of dire consequences if she tried to complain to anybody.

The Court ruled that, “the prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.”

The Karnataka High Court also declared that denying sex is a ground for divorce. According to a recent gender study conducted by International Centre for Research on Women and United Nations Family and Population Fund in India, 1 out of every 3 husbands admitted to forced sexual acts on their wives.
Though there have been some advances in Indian legislation in relation to domestic violence, this has mainly been confined to physical rather than sexual abuse. Women who experience and wish to challenge sexual violence from their husbands are currently denied State protection due to general marital rape exemption. This places it in the company of a handful of countries, including China, Afghanistan, Pakistan and Saudi Arabia.

Meanwhile in countries like England, Canada and the United States of America marital rape receives the penal criminal liability that it deserves.

SUSTAINING FACTORS

Women in India have been subjected to violence, exploitation and subordination since time immemorial. They are marginalised in our country, often deemed inferior to men. In most cases, the years of subordination has led to a general acceptance of the wrath of their husbands.

Sex in Indian society is a taboo. Hence, reporting Marital Rape is not as easy and simple as it ought to be. Poverty and illiteracy are other contributory factors to the disease. Girls of twelve years of age are married and thereafter subject to abuse.

Young women from various settings in South Asia explained in surveys that even if they felt discomfort and did not want to have sex, they accepted their husbands’ wishes and submitted, fearing that otherwise they would be beaten. Often, when asked by their husbands to have sex, they are not in a position to refuse: they have to choose between unwanted sex and being subjected to violence or being abandoned by their husbands and ending up living in abject poverty.

PROBLEMS OF PROSECUTION

There have been many problems with prosecuting the perpetrators of Spousal Rape. The primary and most obstructive is, of course, the failure of the Indian Legislative System to recognize it as a crime.

For any law to be successfully enforced, the acts which it prohibits must be construed by society as ‘abusive’. However, a large section of Indian society has always been accepting of Rape in Marriage, both through legislation and its age old customs and traditions. The point to ponder is, although there has been a hue and cry all over the country to criminalise this act of utmost atrocity, little or nothing has been done to protect women in this regard. A detailed overview of the same has been given below:

(I) The Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence. However, the Joint Committee that reviewed the proposal dismissed the recommendation on the ground that when a man marries a woman, sex is also a part of the package!

(II) The draft Criminal Law (Amendment) Bill, 2011 recommended the following for enactment:

1. Substitute Sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code, and replacing the word ‘rape’ wherever it occurs by the words ‘sexual assault’, to make the offence of sexual assault gender neutral and also widening the scope of the offence of sexual assault;
(The Criminal Law (Amendment) Bill, 2012 also seeks the same)
2. Under the IPC, there is an exception to the offence of rape when sexual intercourse is committed without the consent of the wife if she is above 15 years of age. The Bill increases this age to 16 years.
3. For sexual assault by a husband upon his wife below 16 years of age, the Bill provides a punishment of a minimum of seven years and a maximum of life imprisonment.
4. Under the IPC, rape by a husband of his wife during judicial separation is punishable with maximum two years imprisonment and fine. The offence is non-cognizable and bailable. The Bill provides a punishment of up to seven years and fine for sexual assault during judicial separation. It also changes the nature of the offence to a cognizable and non-bailable offence.

(III) Justice Verma Committee Report
Following the infamous Nirbhaya Rape Case in the Capital of the Country in 2012, the Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The Report laid down the following:
1. Marriage is not a license to rape, the law ought to make specific provisions for it
2. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
3. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity.

EXCEPTION AS THE EPITOME OF HYPOCRISY

“Marriage is for woman the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution.” [5]

As per the Indian constitution, every law that is passed in the country has to be in conformation with the principles and ideas enshrined in the Constitution of India. Any law that fails to meet this standard is considered ultra vires and is liable to be struck down by the Courts and declared unconstitutional. The doctrine of marital exemption to rape fails to meet the standard of conformity and thus is an example of hypocrisy of and a mockery on the Constitution:

Article 14: EQUAL PROTECTION OF THE LAW
Article 14 protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates against a wife when it comes to protection from marital rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and is violative of the protection guaranteed under Article 14 of the Constitution.

Article 21: RIGHT TO LIFE AND PERSONAL LIBERTY
The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and it has been held that the “right to live with human dignity” [6] is within the ambit of this Article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 violates Article 21 of the Constitution along with a host of other rights including the right to privacy, right to bodily self-determination, right to good health.

Further, Article 51A (e) of the Constitution of India states that it is the Fundamental Duty of every citizen of India to denounce practices derogatory to the dignity of women.

Suffragists like Elizabeth Cady Stanton and Lucy Stone “singled out a woman’s right to control marital intercourse as the core component of equality.” British liberal feminists John Stuart Mill and Harriet Taylor attacked marital rape as a gross double-standard in law and as central to the subordination of women.

The legislative framework of India has no provision to aid the plight of a married woman who constantly faces evil because of the detrimental notion of the Indian society considering sex as an obligation.

Marital rape is a common but under-reported crime. The mere hurdle that it would be very difficult to prove is no reason for not recognizing it as a crime. It is no justification to say that the victims should be denied protection simply because someone might be at risk of a fabricated case. It is true that a wife impliedly consents to sexual intercourse with her husband after marriage, but the expression of love through sexual intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination can it be said that a person consents to harm or violence by marriage, and neither does the law permit any person to give such consent.

Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold together marriages may be one of the objectives of matrimonial law, but it cannot override the fundamental objective of law in general and that of criminal law in particular, which is to protect and preserve the bodily integrity of a human being.

CONCLUSION

The issue of Spousal Rape has been lurking at the doorstep of justice since time immemorial.. All that is required is the understanding that a woman is not obliged to allow herself to be subject to the atrocities of any man, no matter her relation with him. With the will to clean this menace and to label it as the crime that it is, marital rape ought to be countered. Times are changing, mankind is progressing. It is only imperative to keep the laws of our country abreast with changing times. Marital rape is in no sense natural, acceptable and obvious. In today’s day an age, such age old conventions and belief systems will mar the progress of the country, opressing its citizens. It is time we draw the attention of the legislature and judiciary of India to make adequate provisions and safeguards protecting women from this monstrosity. Marital Rape ought to be placed in the same penal category as any other instance of rape, punishable by harsh imprisonment.

Avrati Srivastava (V-III)

END NOTES

[1] Harrell, S. Kelley. The Journey of Healing: Wisdom from Survivors of Sexual Abuse: A Literary Anthology.

[2] National Crime Records Bureau Report (NCRB), 2014.

[3] Ray, Darrel. Sex & God: How Religion Distorts Sexuality.

[4] State v. Vikash (2014), SC No. 1/14

[5] Russell, Bertrand. Marriage and Morals.

[6] Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981). 1 SCC 608.