Marital rape - An injustice, must be criminalized: Gujarat HC

Without mincing any words and coming straight to the heart of the matter, let me say this from the bottom of my heart that I fully support the burgeoning demand for making marital rape an offence. A rape is a rape. A husband who is supposed to protect his wife and take care of her in all possible respects if himself starts raping his wife must be awarded the strictest punishment and our laws must be suitably amended to make the laws more stricter and most importantly must make marital rape an offence immediately so that it can be checked!

It is noteworthy that the Gujarat High Court on April 2, 2018 gave relief to a man accused of raping his wife on the grounds that there was no law on marital rape. On 6 November 2017 also Justice JB Pardiwala of the Gujarat High Court in the landmark case of Nimeshbhai Bharatbhai Desai v State of Gujarat held that, 'Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.' It also held that, 'Marital rape refers to 'unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent'. It is a non-consensual act of violent perversion by a husband against his wife where she is abused physically and sexually.'

It would be pertinent to note that the Gujarat High Court observed that following three kinds of marital rape were prevalent in the society:-

1. Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physical violent episode where the husband wants to make up and coerce his wife to have sex against her will. In most cases, the victims fall under this stated category.

2. Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic and women who refuse sexual intercourse usually face such assaults.

3. Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. This type has also been labelled as sadistic rape.

Truth be told, the Gujarat High Court, however, strongly advocated that marital rape should be made an offence punishable under law. The court said that, 'The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized.'

Going forward, the Gujarat High Court observed that non-consensual intercourse by a husband cannot be dubbed as rape. However, it also stated that subjecting his married partner to have oral or unnatural sex was akin to cruelty. The court made these observations in a case pertaining to a lady doctor's complaint of rape and physical harassment against her husband, who too happens to be a medical professional.

Needless to say, the complainant said her husband forced her to have sexual intercourse with him against her wishes and that he would also subject her to have oral sex and indulge in unnatural sexual activities, other than torturing her for dowry. Seeking rejection of her wife's complaint against him, the husband moved the Gujarat High Court. Quoting and citing previous judgments, Justice JB Pardiwala of the Gujarat High Court observed that though a husband had the right to have sex with his legally wedded wife, she was not his property and it should not be without her consent.

The figure of marital rape exceeds all our wildest imagination but never come in the limelight because very few cases are reported and out of them also less than a handful are registered and here too wife is finally cajoled or compelled by her own family members to relent and move ahead to save the so called institution of marriage from being destroyed which our politicians keep citing as a pretext to not making marital rape an offence! This is utterly reprehensible!

Just because a man has married a woman that by itself does not confer the legitimate right or unbridled license to man to have sex with woman against her wish by forcing her in anyway. By marriage woman becomes equal partner with men and not an object or property of man whom a man can ravish as and when he likes and in the manner he likes caring a damn for woman's wishes and safety! Highlighting the sheer hypocrisy of the political establishment in this, Supreme Court advocate Karuna Nundy reacted on Twitter that if a 17-year-old's husband rapes her, it is legal, but if a 17-year-old makes loves to her boyfriend, it is rape and then he goes to adult jail!

If a husband can be prosecuted for murdering his wife, why can't he be charged with raping her? A crime after all is a crime and under no circumstances should it ever be condoned! By not punishing marital rape, are we not reminded of a 'stone age' mentality? In some states ruled by BJP, you can go to jail for eating beef but you face no punishment at all for raping your wife as you have the legal license! No marriage can confer right on husband to rape her wife without her consent!

I am ashamed to note that in our Indian society it is considered the right of a husband to rape her wife as many times as he likes and that too against her wishes as people feel that marriage confers the right on husband to do so! I had myself heard a senior lawyer saying on the 9 o' clock news on television that, 'When you sign up for marriage, you sign up for sex'. Nothing on earth can be more atrocious!

When a woman signs for marriage, she signs up for equal partnership and not surrenders her body rights to her husband as is very absurdly assumed even by some of learned lawyers and eminent academicians in India and in many other countries of the world! Infact, I very strongly feel that a husband who breaks the sacred sanctity of marriage and dares to forcibly rape her wife must be awarded the strictest punishment and such abominable and heinous offence deserve no mercy of any kind!

It is most unfortunate that in India a woman is regarded as personal property of man who has been vested with the marital right to rape her whenever he likes and as many times as he want. Nothing on earth can be more unfortunate than this! Worse still, a woman has no remedy and if she dares to go to police station, she is laughed at by policemen who say that, 'Why did you marry him if you don't want to have sex with him?' Even government feels that the introduction of a law against marital rape will destroy marriage! This is most ridiculous and absurd, to say the least!

This male dominated patriarchal medieval mindset must change if our nation is to progress! Our laws must be suitably amended and marital rape must be made a criminal offence which must contain more punishment than even rape because here a husband betrays the sacred trust created by the marriage and so must be punished most harshly! There can be no exception and zero tolerance has to be demonstrated towards not only rape but also marital rape!

According to the United Nations Population Fund, one-third of men out of a sample size of 9,205 admitted to have forced a sexual act on their wife. The study was conducted in eight states in India. The report also came out with the fact that 75% of married women were subjected to marital rape. What is most despicable is that inspite of all this, the government refuses to act in favour of making marital rape an offence and our Parliamentarians brazenly declare that the concept of marital rape in India does not apply to India leaving woman rights of protection against marital rape in the lurch!

It is in this context that we have to see and appreciate what a trial court in Delhi while emphasizing the need for a law to recognize marital rape as a crime said that lakhs of women are made to suffer by their husbands. Additional Sessions Judge (ASJ) Kamini Lau observed that absence of a provision to deal with marital rape as an offence exposes 'double standards and hypocrisy in law' which has failed to recognize such incidents actionable offences. Lau was at great pains to note that, 'It is unfortunate that we are yet to recognize woman's right to control marital intercourse as a core component of equality. The shortfall in law was gross violation of the acknowledgement of a women's right of self-determination i.e. control on all matters relating to her body and criminalization of marital rape.'

The court made the observations while rejecting the bail application of a Delhi resident, Praveen Arora who was accused of sodomising his wife. The wife alleged that her husband used to rape and commit unnatural sex with her. She further said that the man showed her adult videos and bit her. Denying bail to the man, the court said, 'There appears to be something seriously wrong with the accused and our society …with sexual perversity pervading the system where lakhs of women suffer this kind of sexual violence and perversity in silence.'

The court also cited United Nations Report - 'All Forms of Violence against Women' - which said 52 states have explicitly outlawed marital rape. The ASJ Kamini Lau made a scathing attack on this marital rape not being punishable in India by saying that, 'Non-recognition of marital rape in our nation set upon the bedrock of equality is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women…it is rape when a man forces himself sexually upon a woman whether he has a license by marriage law to do it or not. It is the need of hour to seriously recognize and address this problem.' There can be no denying what ASJ Lau has said rather I would say that it is high time and now marital rape must be made an offence, to say the least.

Throwing out Praveen Arora's bail application, court said it could not allow him to get away with such 'perverse actions', which had caused 'physical and psychological damage to the young girl who was married for only eight months on account of his abusive relationship. Activists and lawyers agree with Lau. Senior advocate Meenakshi Arora, who is best known as the lawyer who propelled forward the ground breaking Vishaka guidelines in the Supreme Court minced no words in stating that, 'A lot of violence exists in marriages, mostly in the form of spousal rape. We need to criminalise this so that the victims have a name for what they go through, so they have somewhere to turn to when they've been wronged.'

In March 2014, Parliament rejected the Verma Committee's proposal to criminalise marital rape . A panel of lawmakers said the proposed marital rape law 'has the potential of destroying the institution of marriage'. Women's rights activist Kalpana Vishwanath believes the decision could be attributed to 'patriarchal anxiety that stops people from taking it up as a serious issue.'

If a woman is destroyed by raping her, what purpose does the institution of marriage serve? What institution are we talking about? That institution which confers unbridled license to a husband to rape her wife? Utter nonsense and load of rubbish this is! It only encourages husband to take her wife for granted and care a damn for her feelings and crave only for his own enjoyment and pleasure thus reducing her wife to a mere object to be exploited at her husband's own sweet will!

While craving for my esteemed readers exclusive indulgence, let me tell them that the Verma Committee Report headed by former CJI late Justice JS Verma recommended strongly that the exception for marital law be removed. It also recommended that -

1. The law ought to specify that -

(a) A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;

(b) The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

(c) The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

Eminent jurist Leila Seth, who was herself part of the three member panel constituting the Justice JS Verma Committee found the Minister of State for Home Affairs Haribhai Parathibhai Chaudhary comments in Parliament that, 'It was not possible to amend the Indian Penal Code to remove marital rape from the definition of rape because of the cultural and religious values in India and society's belief that marriage is sacred' absolutely strange. She rightly pointed out that, 'Today, you will deny woman the right to consent for sex after marriage ; tomorrow you could even deny her the right to life under the pretext of defending culture.' She further said that, 'Unfortunately, as a Committee, they could only make recommendations and implementing it was in the hands of the State. Parliament can and must change the law as per the Committee's recommendations.'

Most recently, the Pam Rajput Committee that recently submitted its report to the women and child development ministry, has recommended that as a pro-woman measure, marital rape should be considered an offence irrespective of the age of the wife and the relationship between the perpetrator and survivor. The recommendations will be discussed in an inter-ministerial consultation scheduled later. There is no reason why this landmark recommendation should be not accepted immediately and in its totality.

Women and Child Development minister Maneka Gandhi too had voiced her support of the view that marital rape was a form of violence against women and was 'unacceptable'. She had stated categorically that, 'My opinion is that violence against women shouldn't be limited to violence by strangers. Very often a marital rape is not always about a man's need for sex ; it is only about his need for power and subjugation. In such case, it should be treated with seriousness'.

According to the United Nations Population Fund, marital rape is the most common form of violence against women in India. Two-thirds of married Indian women surveyed by the UN, aged 15 to 49, allege to have been beaten and said their husbands had forced them to have sex on numerous occasions . In 2011, the International Men and Gender Equality Survey has revealed that one in five has forced their wives or partner to have sex. This must end now ! To make this happen, those husbands who unabashedly rape their wife must be made to face the strictest punishment and should not be allowed to go away lightly or scot free without facing any punishment as most unfortunately we are seeing right now!

There are 104 countries that have outlawed marital rape. Why are we among the few nations like Yemen, Iran, Libya and Sudan where marital rape is no offence and woman has no option but to submit to rape? The present legal system in India does not recognize rape as crime except when a man rapes his wife who is below 15 years of age! This is most outrageous and deserves to be discarded right now !

Poland was the first country to explicitly make marital rape a criminal offence in 1932. Australia was the first common law country to pass reforms in 1976 that made marital rape a criminal offence. Marital rape became a crime in every state in USA by 1993. Most states of USA penalize marital rape like any other crime with fines that could exceed $ 50,000 and prison terms varying between several years and life in prison without parole. In the US between 1970s and 1993, all 50 states made marital rape a crime. The Court of Appeals of New York struck down the marital exemption from their codes in 1984. Marital rape was made a crime in Britain in 1991. The 2003 Sexual Offences Act clarified the law, giving consent a legal definition in England and Wales. Under the law, the accused would face punishment of five years in prison.

Many other countries like Canada, Sweden, Norway, Denmark, former Soviet Union, Czechoslovakia, New Zealand, South Africa, France, Israel, Turkey, Malaysia and, this year, Bolivia too have all criminalized marital rape. In Bhutan, marital rape is considered an offence but not a serious one. It is punishable with a minimum prison term of one year and a maximum term of three years! In 1986, the European Parliament's Resolution on Violence against Women called for criminalization of spousal rape which was done soon after by several nations including France, Germany, the Netherlands, Belgium and Luxembourg. In 1991, the House of Lords in the UK struck down its common law principle that a marriage contract implied a woman's consent to all sexual activity.

Be it noted, in 2002, Nepal got rid of the marital rape exception after its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy. It said, 'The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.' According to the UN Women's 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence. The remaining countries include those that make an exception for marital rape in their rape laws, as well as those where no such exception exist and where, therefore, the spouse can be prosecuted under the general rape laws.

It must be asked: Why are we splitting hairs on making marital rape a punishable offence? Why can't we go headlong with the proposal to make marital rape an offence? Domestic violence in any form is most reprehensible and completely unacceptable! I earnestly call upon Centre and our lawmakers to immediately implement the proposals of Justice Verma Committee report and make marital rape punishable in same manner as rape with no ifs and buts whatsoever! What an irony that when a man has sex with a married woman with her consent, he is punishable for adultery under Section 497 of the IPC for imprisonment that may extend to five years but if a husband commits marital rape and breaks the blind trust that his wife poses on him, he is not at all punishable! This is utterly disgusting and can never under any circumstances be ever justified!

Simply put, every man has the birth right to do what he wants to do with his own body except obviously the right to commit suicide and here too Centre has now decided to decriminalize it so that committing suicide also becomes the birth right of not only man but also every person including woman! But no man including husband has the right to rape a woman against her will and even marriage confers no such right. It is only with her consent that he has the right to have physical relationship with her and not without her consent! It is the duty of husband to protect her wife and indulge in sex only with her consent!

On a concluding note, marriage is no licence to have forced sex with wife even though this is the wrong general misconception among the people who argue that what else is marriage meant for! This has been reiterated by the Gujarat High Court just recently on April 2, 2018. Those who fear that disgruntled wives would misuse this provision like they say has been the case with Section 498A must remember that just because a law can be misused is no ground for not making a law!

If this is made a basis then all laws would have to be abolished because all of them are pliable to misuse to some extent! I do, however, agree that some safety clauses must also be inserted like if the complaint is found to be false or malafide, woman can be fined or jailed or both! This would go a long way in checking false complaints and also in saving the precious time of courts and unnecessary harassment of innocent husbands! Let us hope earnestly that the landmark ruling by the Gujarat High Court would compel the Parliament to sit and take notice and then start the process of making marital rape an offence with the strictest punishment so that a loud and message goes out that sex with even wife can take place only by her consent and not without her consent at any cost and those men who dare to do so without the permission of their wives then they would have to spend many years in jail for doing so!