Introduction
Marriage is one of the sacred institutions of our society, constructed on the essence of mutual respect and companionship. The pious ceremony of marriage, ritually recognised, not only makes a woman leave behind her family but also the right over her body. But, over and again through ages, the pious nature of marriage has been jeopardised due to the forceful nature of the intercourse inflicted upon women at the will of their husband amounting to marital rape. Such forced intercourse along with the pain which is inflicted upon the women, has always been shut behind the bedroom doors. This is because in Indian society consent during sexual intercourse by a married couple seems to be irrelevant as it’s assumed that during the sacred wows, the women have also given up on their rights over their body to the husband.
India, the land of traditions, customs, culture and religion where a woman's place is that of a goddess and is worshipped, where the whole country is referred to as ‘Bharat Mata', there itself a woman is continued to be raped in the name of marriage and laws are such which itself gives the permission. Because the largest democracy of the world with the most powerful and independent judiciary is still tied to the shackles of an orthodox mind-set, it has failed to recognise the shadow of marital rape.
Rape, as on today, is defined by the section 375 of Indian Penal Code which has an exception clause stating that the intercourse or sexual act by a man with his wife, not below 18 years, is not a rape.[1] Section 375 creates two classes of women, married and unmarried. It denies married woman from availing protection against the crime of rape which in itself creates a sense of discrimination by excluding a section of women from availing justice for the same crime.
The lack of laws for providing protection to married women from unconsented sex has casted a dark shadow over the society, as women have no right to make their husbands criminally liable for inflicting pain both physically and mentally for committing marital rape.
Isn't it hypocritical how non-consensual sex before the set-up of marriage constitutes a rape, but the same is not considered a rape when done in marriage? Do women consent to rape by virtue of marriage?
It's very unfortunate that despite the educational and technological advancements, the law has failed to provide any remedy for the victims of marital rape. Unfortunately, no respite for the women who unwillingly bear whatever their husbands desire in the name of marriage.
Marital Rape: History of not being an Offence
Looking at the history of patriarchal society, consent of women has never been a matter of consideration. Married woman has been considered as an object and a husband’s property since ages. An incident for this treatment can be traced back to the times of ‘Mahabharta' where Draupadi was gambled in the game of dice by her husbands. Queen Sita in ‘Ramayana' also had her own moments of subjugation because of her gender. Is it because in Indian society the husband is given the status of ‘Pati-Parmeshawar'? Or is it because of the fact that wife is considered to perform the duty of ‘Samarpan' or submit her body, mind and soul completely to her husband after marriage?
The foundation of exception in Section 375 can be traced back to the statements made by Sir Mathew Hale, Chief Justice in 17th century England. Hale wrote, “The husband cannot be guilt- ridden of rape committed by himself upon his legalised wife, for, it is by their communal agreement and pact, the wife hath given up herself this kind unto her husband, which she cannot retract”.[2]
Is marriage an irrevocable consent for sexual intercourse for life? Is sacred knot of marriage a license to rape?
Regardless of union established between two people, the person's right to govern their own body should always remain their own.
Rape in Bedroom: India Still in Denial
It's disheartening that a sensitive issue like that of rape is being dismissed by the highest court of appeal. The Hon'ble SC of India, the last ray of hope for reforms, in outdated approach towards marital rape after Parliament had hung up its boots, said that country isn't ready to accept marital rape as a crime by giving the statement that “it may destabilise the institution of marriage apart from being an easy tool for harassing husbands".[3]
Irrespective of what the social movement is about, there is always a counter movement by those who feel that their privilege is being taken away. Swaraj Kaushal, SC lawyer and former governor of Mizoram had tweeted, “There is nothing like Marital Rape. Our homes should not become police stations.”[4]
Pessimists present arguments, “Why is there a need for separate law for this offence when Domestic Violence Act and Section 498A are already there covering all kinds of domestic violence and cruelty respectively?”
But Domestic Violence Act is a civil law which condemns physical violence along with other forms of violence such as emotional/verbal, sexual and economic abuse, providing for protection and monetary compensation to the victim and not meant to penalise criminally.[5] Section 498A criminalises only the part of cruelty associated with the rape but not the rape itself. Also, under section 498A the criminal is imprisoned for a term which may extend to three years and shall also be liable to fine.[6] But Section 376 of IPC punishes criminal of rape with rigorous imprisonment of either description for term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.[7]
Isn't it ironical how the treatment of justice varies for the same offence committed under two circumstances i.e. before marriage and after marriage which is providing relief to the same criminal who is committing same crime under the cover of so-called marriage institution? Law makers quote arguments that it will destroy the sanctity of marriage and the issue of misuse.
The idea that a women will make a mere allegation and the man will be convicted is false. The law of criminal jurisprudence still applies. The onus is still on the woman to prove, beyond reasonable doubt, that she was raped. “Almost all laws are susceptible to misuse. But just because people are falsely accused of murder or financial crimes, no one seeks to decriminalise murder or money laundering", advocate Raghav Awasthi has quoted.[8]
Surveys Takes the Veil Off
India is one of 36 countries of the world where marital rape is legal and is in the same league as Saudi Arabia, Pakistan and China.
United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity and recommended criminalisation of marital rape.[9] Numbers reflect the gravity of the situation. According to researcher Aashish Gupta, 6.6% of women interviewed by National Family Health Survey interviewers, admitted having experienced sexual violence by their husbands.[10] Further, a study conducted by the International Centre for Research on Women (ICRW) and United Nations Population Fund in 2014 in 8 states of India showed one-third of men in those states admitted to having forced sexual act on their wives among 9,205 men.[11]
What prevents our parliamentarians from joining the 100+ countries in the world including Turkey, Malaysia, Bhutan to recognise and criminalise marital rape? Why it is that Indian societies put such a high premium on marriage that the only option left for a woman is to grin and bear the atrocities against her?
The Constitution provisions
The primary function of a democratic govt. is to protect the fundamental rights of the citizens and not the illusionary protection of an institution whose bedrock is a heinous and criminal act. The fear of frivolous litigation should not prevent from attaining justice to those caught in abusive traps as every law has the potential to be misused.
The exception in Section 375 is violative of the right to equality guaranteed to women under Article 14.The Constitution states that the “State shall protect women from injustice and promote gender equality” and that “state shall not deny to any person equality before the law and equal protection of law within the territory of India”.[12]
Further, Article 21 of the constitution incorporates the right to life and personal liberty,[13] which stands grossly violated in case of marital rape. In Bodhisattwa Gautam v. Subhra Chakraborty, the SC said that rape is a crime against basic human rights and violation of the victims most cherished rights, namely the right to life and personal liberty enshrined in Article 21 of the constitution.[14] Yet it negates this very pronouncement by not recognising it. Adding the word ‘marital' before rape doesn't undermine the severity of crime. The basic human rights has to come above the idea of the understanding of family. The married women cannot be segregated and denied of their basic human right of justice.
Criminalisation of Marital Rape has been upheld by jurists such as Justice Pardiwala who opined that, “A law that doesn't give married and unmarried women equal protection, creates conditions that lead to the marital rape. It allows men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed”.[15] Also, Justice Verma Committee had also recommended criminalisation of marital rape,[16] The Committee recommended that the exception to marital rape should be removed as marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.
Furthermore, Justice D.Y. Chandrachud, abhorred patriarchy while deciding the case of KS. Puttaswamy (Retd.) v. Union of India And Ors, wherein he opined that “privacy must not be used as a cover to conceal and assert patriarchal mind-sets".[17] Thus, privacy of a bedroom cannot be used as a blanket to cover the heinous crime and the screams of the women cannot be kept shut behind the bedroom doors.
Conclusion
Rape is a brutal crime which not only destroys the body of the victim but also assassinates her heart, mind and soul, deserving of punishment, regardless of relationship between the perpetrator and the victim. Marriage is not a license for a man to have sex with his wife. Consent doesn’t automatically get involve when people marry and marriage doesn't automatically take away the autonomy of a woman over her own body.
A couple of chants, 7 rounds around the alter of fire, sacred vows, the tradition of bearing sindoor and mangalsutra should not be given the power to bring down the importance of a ‘NO' in the relationship.
Let's not romanticise the idea of marriage to the extent of overlooking matters of grave concern! Let's not treat marriage as state-sanctioned license to rape woman and to take away their sexual autonomy!
Law is not static and needs to be changed with time and conditions. A history of physical violence, medical examination of wife, possible admission of husband in electronic communication could be evidence to prove the guilt. But there can be cases where husband only by mentally pressuring his wife can force her to give consent, like by putting her under financial constraint and threatening to not give her money for household and other purposes.
It is about time that the law makers in this country recognise the gravity of the situation and come up with a potent legislation to curb this social evil.
References
[1] The Criminal Law (Amendment Bill),2013, available at http://www.prsnindia.org, ( Visited on 18 March,2019).
[2] Sakshi Kanodia, Ranjabati Ray, “ Why Penalize Marital Rape", 21 IOSR-JHSS 50(2016).
[3] Criminalising marital rape will destabilise institution of marriage, Centre tells HC, available at https://www.thehindu.com,(Visited on 22 March, 2019).
[4] Nothing like marital rape: Sushma's Husband Swaraj Kaushal – Inshorts, available at https://inshorts.com, (Visited on 22 March, 2019).
[5] Protection of Women from Domestic Violence Act, 2005-Wikipedia, available at https://en.m.wikipedia.org, ( Visited on 22 March,2019).
[6] Section 498 in The Indian Penal Code, Indian Kanoon, available at https://indiankanoon.org, (Visited on 22 March,2019).
[7] Section 376 in The Indian Penal Code, Indian Kanoon, available at https://indiankanoon.org, (Visited on 22 March, 2019).
[8] Why some wives have pinned hopes on this HC verdict- Times of India, available at, https://epaper.timesgroup.com, ( Visited on 23 March,2019).
[9] Let's get talking India: Marriage cannot be a license to rape| ht view | Hindustan Times, available at https://m.hindustantimes.com, ( Visited on 20 March, 2019).
[10] Ibid.
[11] Ibid.
[12] The Constitution of India,1949.
[13] Ibid.
[14] Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.
[15] Marital rape is not a husband's privilege, should be criminalised: Gujarat HC, available at https://www.thenewsminute.com (Visited on 26 March, 2019).
[16] Marriage is not a valid defence against rape, says committee- The Hindu, available at https://www.thehindu.com, ( Visited on 16 March, 2019).
[17] Justice K.S. Puttaswamy (Retd.) v. Union of India And Ors. On 24 August, 2017, available at https://indiankanoon.org, (Visited on 22 March, 2019).
Thoughts of,
Roopsi Bhagat,
3rd Year, B.A. LL.B.,
The Law School, Jammu University.
(Image used for represenatational purpose only. Image Credit: https://indianlegalsolution.com/marital-rape-a-darker-side-of-marriage-analysis-of-a-law-student/ )