Marital rape and it’s legal scenario in India

Synopsis

Through ages, women in India have had to face atrocities at all stages of life in various forms. In a matrimonial relationship they have had to suffer mental and physical trauma and yet they were expected to stay loyal and obedient to their husbands. The present article comprehensively discusses the concept of Marital Rape. The law in India does not criminalise marital rape, it does not recognise that it is a crime for a husband to rape his wife and neither there is any specific ground for matrimonial relief regarding it. This article throws light upon current situation of marital rape and its legal position, and how marital rape is justified as cruelty for matrimonial and criminal relief.

Marital rape refers to rape committed when the perpetrator is the victim spouse. The definition of rape remains the same, i.e. sexual intercourse or sexual penetration when there is lack of consent. The lack of consent is an essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.

Indian Perspective

Marital Rape as a subject has been a topic of discussion at gender panels and yet lawmakers and the judiciary have maintained their silence around the subject.Marital rape is a grave, yet widespread form of violence against women in India. Though we have advanced in every possible field, marital rape is not considered as an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India.

A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Marriage between a man and a woman in India implies that both have consented to sexual intercourse and it cannot be otherwise.  The Indian Penal Code, 1860 also communicates the same.Section 375 of the Indian Penal Code that defines rape as a criminal offense. A man commits rape if he has sexual intercourse with a woman against or without her consent, or if she is a minor. (The legal age of valid consent is 18 in India.) However, Exception 2 to Section 375 exempts unwilling sexual intercourse with a wife over fifteen years of age from this definition of rape, thus making it legal for men to rape women, who happen to be their wives aged 15 and above.

The exception clause effectively denies women agency over their own bodies. It reinforces the patriarchal notion that a woman’s body is her husband’s property, and it is blind to the realities of sexual violence experienced by women within marriages.

The common law rationale for the marital rape exemption was that, upon marriage, the wife’s identity merged into the existence of her husband. In 1765, Blackstone stated “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.

This became known as the marital unities doctrine, which provided that a woman could not own property, make contracts, or take part in litigation. This doctrine made the rape of a woman by her husband a legal impossibility since a man could not rape ‘himself.

Current Situation

According to the Ministry of Home Affairs, a crime is committed against a woman in India every three minutes. The National Crime Records Bureau reports 1,85,312 crimes committed against women in 2007 – 75,930 of which were considered to be of domestic violence (Cruelty by husband or relatives). Torture and molestation were the most widespread felonies. The actual figure could be ten times higher as many cases go unreported with victims unwilling to speak out, fearing the shame and stigma associated with being a divorced or separated woman in traditional Indian society.

While attitudes towards women in educated, urbanized areas have improved, those of rural India remain unenlightened. Both men and women see violence as a part of gender relations. The UNFPA report found that some 70 percent of Indian women believed that wife-beating was justified under certain circumstance, such as refusal to have sex or for not preparing food on time. Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee

Legal Position

As highlighted above marital rape is not an offense in India. Enactments in regards to marital rape in India are either non-existent or esoteric and dependant on the understanding by Courts. Section 375, the provision of rape in the Indian Penal Code (IPC), mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” As per section 376 of IPC, which provides punishment for rape, the rapist ought to be rebuffed with detainment of either portrayal for a term which might not be under 7 years but rather which may stretch out to life or for a term reaching out up to 10 years and should likewise be at risk to fine unless the lady raped is his own particular spouse, and is not under 12 years old, in which case, he might be rebuffed with detainment of either depiction for a term which may reach out to 2 years with fine or with both.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence. Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband. However, the same doesn't entirely protect the women from the crime has undergone.

Marital rape is also a violation of the fundamental right of a womanspecifically under Articles 14 and 21 of the Constitution of India

Article 21of the Indian Constitution, incorporates the right to live with human dignity and is a standout amongst the most fundamental components of the right to life which perceives the independence of a person. The Supreme Court has held in a catena of cases that the offense of rape abuses the right to life and the right to live with human dignity of the victim of the crime of rape

In Bodhisattwa Gautam v. SubhraChakrabortythe court held that rape is a crime against the basic human right and violation of the right to life enshrined in Article 21 of the Constitution and provided certain guidelines for awarding compensation to the rape victim.

In the landmark case of The Chairman, Railway Board v. Chandrima Das, the Hon'ble Court held that rape is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Rape is a crime not only against the person of a woman, it is a crime against the entire society. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.

That a reading of the aforesaid cases as well various other catena of the judgments and cases,it is ample clear that such an exception as "marital rape is  violative of the basic fundamental concepts on which our entire legal system is bases and such an except damages the entitlement of women to live with dignity and encourages the society to commit crime against the women, which in itself is unacceptable and against the principle and corner stones of the Constitution of India.

Cruelty

The Hindu Marriage Act-1955 has given the legal provision for divorce on basis of cruelty under section – 13(1)(ia) as follows; “Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty”.

Cruelty refers to violent acts. To constitute cruelty in the matrimonial law, the conduct of complained should be “grave and weighty”. So as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live the other spouse.  It must be something more serious than “ordinary wear and tear of married life”.

Marital rape is also a form of cruelty inflicted upon women. Rapewithin the institution of marriage is not an offence in India even when it comprises of physical, sexual andmental cruelty. It is an intrusion upon the basic right to dignity of the women. The Justice Verma CommitteeReport also points out that, according to 2010 study around 18.8 per cent of women are raped by their partnersnot once but on many occasions.26 Not only in India, isviolence against women present, but even in the UnitesStates the reports indicate that around 10-14% of women experience rape within the institution of marriage.

Judicial Incidents

In Marry v. Raghvan, it was held that despite cruelty being defined, several times, in such broad sense and the grounds for divorce being demarcated into such broad areas, marital rape fails to feature in any of the these theories with respect to the Personal Laws in India- neither of Mohammedan Law, Hindu Law, Christian Law or Parsi Law- includes marital rape into the grounds for seeking divorce.

In January 2018 the Delhi government told High Court that the act of marital rape is recognized as cruelty under criminal and personal laws and letting the women to punish an abusive and leave him.

The PIL was on the issue of marital rape, where a spouse indulges in sexual relations without the willingness of the other, the government's counsel noted that a woman is entitled to refuse sexual relations with her husband as the right bodily integrity and privacy is secured to all women, married or unmarried,  under article 21 of the constitution.

Opposing to the PIL it was maintained "marital rape is an offence under section 498A of Indian Penal Code and FIRs are being registered.  Marital rape has also been given a broader definition more akin to section to 498A IPC under the Domestic Violence Act".

It was also pointed that marital rape is also one of the grounds of cruelty for divorce under personal laws, and contended that a court cannot create a new offence the law as it is the prerogative of the legislature.

More recently a plea was filed regarding marital rape in the supreme court The PIL had sought that there should be a clear guideline for registration of cases related to marital rape under framed guidelines and laws.

The plea stated that, "Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honour and dignity of a human being, and reduces her to a chattel to be utilised for one's self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury. Medical evidence proves that rape has severe and long-lasting consequences for women,"

It was contended in the petition that at present there is an ambiguity in the implementation of the context of marital rape as a ground of punishment or penalty during the registration of such a case in ambit of law.

The plea said that since marital rape at present is not a crime, there is no FIR registered by a wife against her husband in any police station. Rather, it is being compromised by the police authorities to maintain the sanctity of the marriage between the victim and the husband, the plea said.

The Supreme Court refused to entertain a plea seeking a direction to the Centre to frame appropriate guidelines for registration of FIR for marital rape and frame laws for making it a ground of divorce. The bench of Justices SA Bobde and BR Gavaihowever,asked the petitioner to approach the high court for the relief.

The Delhi High Court later declined to entertain a plea seeking direction to the Centre to frame guidelines for registration of FIR for marital rape as also laws for making it a ground for divorce. The bench of Chief Justice D N Patel and Justice C Hari Shankar disposed of the PIL saying the court cannot direct framing of laws as it is the domain of the legislature and not the judiciary.

Conclusion

Rape is rape be it by stranger or by our nearest and dearest one. The marital rape is nothing but a special species of rape itself which is no less heinous crime than rape by stranger. The effects upon the victims are almost same. Then why not the punishment be same. Criminalisation of marital rape and enactment of specific provisions regarding marital rape as ground for divorce is essential today,

Today we are aiming towards a society where there will be equal distribution of power, mutual respect and appreciation for the contribution that women make to the society. In a society where women are more educated, economically independent incident of rape will be lesser. India being the largest democracy of the world cannot remain silent on the issue.