Marital Rape; Indian Legal Scenario

Introduction

The word Rape is derived from a latin word rapio which means “to seize”. Rape literally means forcible seizure. According to dictionary of Merriam Webster, Rape is an unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent. Section 375 of the Indian Penal Code defined rape as criminal offence wherein a male makes sexual intercourse/contact with a female forcibly without the consent of female or will be enforcing pressure, threats, violence, abuses, molestation, etc.

Marital Rape: Marital rape in simple words can be defined as rape committed by a husband to his wife. Marital Rape is a forced sexual intercourse of a husband with his wife in a way of physical force, mental torture, fear generation or by abduction.  

Constituents of Marital Rape:-

? There must be a sexual intercourse, anul sex, oral sex or anykind sexual activity without the consent of the wife.

? If the wife is in unconscious mind at the time of intercourse, it shall be termed as marital rape.

? Forcing wife to sexual intercourse by the way of domestic violence, physical violence, abduction etc.

According to a data, it is believed that in every 06 hours a wife is burnt, physical abuse to death or driven to suicide following such mental and physical abuse. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.

Legal Position Of Marital rape under the Indian Legal system

At common law, husbands are exempted from prosecution for raping their wives. Over the past forty years, states are trying to modify this law. A majority of states still retain some form of the common law regime: They criminalize a narrower range of offenses if committed within marriage,' subject the marital rape they do recognize to less serious sanctions, and/or create special procedural hurdles for marital rape prosecutions. The current state of the law represents a confusing mix of victory and defeat for the exemption's contemporary feminist critics. Virtually every state legislature has revisited the marital rape exemption over the last twenty-five years, but most have chosen to preserve the exemption in some substantial manifestation. The exemption for husband in marital rape can be traced way back in the statement of Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a 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, whom she cannot retract.”

Thus, men always had the privilege or a kind of immunity with them in case of marital rape. The first voice against the immunity to husband raised in a revolution by American women activists in the early 1970s to eliminate the exemption given to husband in the case of marital rape and to provide equal protection to women as well.

In the present, according to a study almost 10-14 percent of women are victim of marital rape. The most common are those who try to fly in their career. Advancing well into the timeline, marital rape is not 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.

Section 375 of Indian Penal Code identifies rape as a criminal offence has the offender is subject to harsh punishment. Furthermore, section 376 of Indian Penal Code has defined Marital Rape in an altogether separate position. As per the Section, the accused will be punished for a term imprisonment that will be not less than tenure of seven years. Also it may get extended to a life imprisonment or the term can get extended to ten years. Also, the accused will be penalized for the fine. The Supreme Court in its recent judgment has stated that sexual intercourse with a wife below than the age of 18years shall be termed as rape. The earlier age of 15 years has now been modified to 15 years. “It is a landmark ruling which comes as a win for all those fighting for child rights, violence against children, etc. It will definitely help to reduce child marriage and exploitation of young girls. But I cannot say how it will be implemented. Since the implementation will have to be done by the police, they should be adequately trained so that they cannot use a lacunae in the ruling for not implementing it in the right spirit,” said Rishi Kant.[1]Ironically the Law Commission of India does not consider Marital rape as a criminal offence. Moreover, in the year 2005, the act passed for the protection of women from domestic violence Act, 2005 did not consider or subject Marital rape as a criminal offence instead it was termed as a form of domestic violence. However, under the Domestic violence Act, 2005, the woman who has been a victim of marital Rape can approach the court for getting a legal separation from the husband.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behavior.

The 172nd Law Commission report has lay down following recommendation in the law of rape. :-

? Rape’ should be replaced by the term ‘sexual assault’.

? ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.

? In the light of Sakshi v. Union of India and Others[2], ‘sexual assault on any part of the body should be construed as rape.

? Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.

? A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.

? Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.

? Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.

? Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

As a final piece of argument to show the pressing need for protection of woman, here are some effects a rape victim may have to live with,-

? Physical injuries to vaginal and anal areas, lacerations, bruising.

? Anxiety, shock, depression and suicidal thoughts.

? Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and infertility.

? Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and negative self image.

Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.

Change is I, we and you.

[1] social activist at anti-trafficking non-government organization (NGO) Shakti Vahini.

[2] 2004 (5) SCC 518