Marital Rape

“Rape is still rape regardless of relationship between victim and rapist.”

According to Indian law, marital rape is considered to be an exception to the offence of ‘Rape’ under Section 375 of Indian Penal Code if age of wife is above 15 years. This exception is based on the outdated notion which can be traced back to statement made by Sir Mathew Hale, C.J, in 17th Century, England. He stated, “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband which she cannot retract.” The offence of rape was originally based on the idea of theft of a man’s property. According to the old-fashioned notion on which law was based, a woman belonged first to her father and after marriage, to her husband. So if anyone had sexual intercourse with her before marriage, the father’s honour was affected and, after marriage, the husband’s. According to English common law coveture, a woman was deemed to have consented at the time of marriage to having intercourse with the husband at his whim. Therefore, Marriage is considered to be armour to every husband against the offence of rape with his wife. With the realisation of importance of human rights and integrity of woman with the passage of time, many countries have changed their laws criminalising the marital rape. Today, over 104 countries including USA, U.K., Canada, South Africa, Indonesia, Thailand, Ireland have outlawed the marital rape. They have recognised that consent is most important and cannot be implied. As per UN population fund, more than two-third of married women in India aged 15 to 49 have been forced to provide sex. Thus, Verma committee suggested criminalisation of marital rape completely. This committee strongly recommended to specify that a marital or other relationship between preparatory and victim is not defence against crimes of sexual violation. The relationship is not relevant to the inquiry into whether the complainant consented to the sexual activity. Despite strong recommendations, this was not taken into consideration by the legislature while enacting criminal amendments, 2013 leaving it as an exception and a license to rape wife.

The aforementioned exception brings the debatable question in light “does marriage mean abdicating yourself to your husband and letting him use your body as a mere property whenever he feels like? Does Woman lose her sovereignty over her own body and soul on marriage?  Does marriage mean giving away your basic right to life and dignity?”  To solve this conundrum, it is necessary to understand the essence of the institution of marriage and open the web of different notions regarding male-dominance on marriage.

Marriage: Epitome of love and respect

Marriage, an institution of social relation, occupies an essential place in society. It is the epitome of love, trust, companionship. It is considered to be a knot in physical, mental and spiritual being of two souls. The essence of all the rituals of marriage is establishment of true relationship between man and a woman. The recital of vows by the couple on marriage symbolises acceptance of loyalty, love, mutual respect, trust and understanding for eternity. It provides assurance by the husband that he will protect, care and respect dignity of wife for all times. Thus, it requires adjustments and compromises by both the spouses. However, it does not mean compromise to the extent of taking away right to life and liberty and cannot be compelled to continue the relation to the extent of compromising basic dignity and physical integrity. Therefore, mutual trust and compatibility is essence and continues till basic faith exists, beyond that spouse cannot encroach. 

Rape: Antonym of love and respect

On the other hand, Rape means exerting violence by one on the other. It is not only crime against physical part of body but also sexual violation of soul leading to violation of basic dignity and equality. Supreme Court once observed “Rape is crime against basic human right and violation of victim’s most cherished fundamental right that is right to life enshrined in Article 21 of the constitution of India.” The very essence of human right is derived from respect for dignity, freedom of individuals. This horrendous act may be committed by a stranger or any intimate relation including husband and the culpability of rape lies in its heinous act of exerting force on other leading to violation of one’s dignity and right on one’s own body. The only apparent difference between marital rape and other rape is relation between victim and rapist.  It is important to note that the adverse effect of rape does not fade because it is committed by the husband. Furthermore, it amounts to the betrayal of trust, betrayal of basic foundation of marriage if committed by husband. 

The protagonist of marital rape as an exception justifies it by saying that marriage is an implied consent to have intercourse with wife by the husband whenever he feels. How can a marriage, symbol of safety and preservation of dignity, take away her dignity? How Marriage as a sacrament gives license to violate the soul of your beloved? Any marriage has an implied undertaking of both the spouse that they will fulfil their conjugal obligation which includes mutual respect, cohabitation and sexual intercourse. The conjugal obligation of sexual intercourse is not to be read in isolation but in light of whole spirit of obligations. Thus, sexual intercourse can never mean forceful intercourse. Understanding the obligation of sexual intercourse technically apart from other obligations of marriage will surely destroy the basic essence of the institution of marriage. Besides this, the other notion justifying the exception is that it may be misused by the wife or difficult to prove is baseless. The fear of misuse can never justify a crime. Other methods and steps can be taken to prevent its misuse say for punishment in case of false cases. Also, we should have faith on our judicial system in examining the false cases and preventing its misuse. Hence, the vague justifications can never justify the unreasonable exception created by the section in marital rape.

The concept merely manifests the male-dominated notion which needs to be corrected. On one hand, we are focussing on empowering women and providing her safety and equality while on the other hand, we are taking away her rights to refuse sexual overtures. To conclude, we must understand that safety, security and change in status of women begins from home and thus, it is dire need of hour to criminalise the old patriarchal based doctrine of marital rape.

Ayushi,

High  Court Advocate, Punjab and

Haryana High Court