Marital Rape – Whose Body It Is?

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Marriage is sacrosanct and considered as a God’s gift. The religious tenets consider it as holy and devoid of grime. In general, nuptial knot lasts long only if there is consensus between husband and wife in other words, marriage is an act where two persons vow each other to lead the life together with helping mind and without any ego and discrimination. Sir William Blackstone an eminent English jurist of the eighteenth century penned that by marriage husband and wife become one person in law[1]. Now, let’s see the interpretation of the term “marriage” by some prominent legal dictionaries. The Merriam-Webster’s law dictionary defines marriage as the state of being united to a person as spouse in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law[2]. The Black’s law dictionary construe marriage, as distinguished from the agreement to marry and from the act of becoming married, Is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex[3].  In the realm of Indian law, the institution of marriage is governed by the respective personal laws, for Hindus they are governed by “The Hindu Marriage Act, 1955”; those who professes Christianity it is “The Christian Marriage Act, 1872”; the Muslim marriages are governed by “The Shariat Act, 1937” and finally in case of inter- caste and inter-religion marriages is it “The Special Marriage Act, 1954” as India is a  pluralistic country and a concoction of various religious practices, customs, cultures and traditions. The term “rape” is derived from a Latin word “raptus” in singular and “raptum” in plural form, which means to grab or to carry off . Under Roman law, the carrying off of a woman by force or against her will, with or without intercourse, constituted “raptus”[4].

Marital Rape

Marital rape otherwise called as spousal rape is an immoral act where a man engages in undesired sexual intercourse with his wife. It is considered as a gravest offence which obliterate the main covenant of marriage that is, consensus. Even in consonance with religious authorities, it is reckoned as a heinous crime. The Indian Penal Code, 1860  which deals with crime against woman under the chapter of offences relating to Human body[5] remains fragile when the crime of this nature is reported because of the exception clause in section 375[6]. It has been 159 years from the date of The Indian Penal Code’s enactment, the legislators are still at loggerheads to make marital rape a crime. The Hon’ble Supreme Court in Joseph Sine vs. Union of India[7] said that “Wife is not a chattel”. So from the above mentioned verdict it can be inferred that the husbands should not treat their counterparts as sexual object in order to satisfy their sexual pleasure against their consent. The victims of such crime have become helpless and subjugated to various kinds of immoral acts. The report of International Centre for Research on Women (2011) enunciates that nearly 20% of Indian men reported at least once having carried out sexual violence against a female partner. In another survey conducted by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% women have been reported as victims under the category of “physically forced her to have sexual intercourse with him even when she did not want to”[8]. A women’s right lawyer got infuriated on the comments of minister of state for home, Haribhai Parthibhai Chaudhary and said that “They seem to convey that men in India have a license to rape their wives with impunity”[9]. Helen Clark, United Nations Development Programme administrator enjoins India to first criminalize marital rape in order to end violence against women[10]. The spousal rape can be divided into three categories wherein under as follows[11];

(i) Battering rape – In battering rape, women subjugated to both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

(ii) Force only rape – In force-only rape, husbands use only the amount of force necessary to put their wives under duress; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

(iii) Obsessive rape – Some women witness a martial rape known as sadistic or obsessive rape where the assaults involve torture and/or perverse sexual acts and are often physically violent.

Principle of Coverture

Doctrine of Coverture, an Anglo-American concept was originated in England and subsequently applied in all the common law jurisdictions. Under this principle, after the lawful wedlock wives shall live under the grab of husbands and all their rights are suspended. Sir William Blackstone, in a famous passage from the first volume of his1765 Commentaries, described the doctrine of coverture as such[12]:

“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 every thing; and is therefore called in our law-French e feme-covert.foemina viro co-operta; is said to be covert­baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture”.  

In Roman- Dutch law the converture doctrine prevailed in the name of Marital Power where the wives are treated as minors and husbands as their guardians[13]. Later, after the passing of few Women’s property rights legislation and emergence of feminism this doctrine started to fade. Even in India, this doctrine was prevalent and the law commission on its report recommended some changes in the women’s property rights in accordance with modern juristic principles[14]. Justice Indu Malhotra in Joseph Sine vs. Union of India[15] said that the doctrine of coverture is not recognised by the Constitution as woman loses her identity and rights. She also added that it is violative of her fundamental rights. Albeit this doctrine has become void and ineffective, it somehow puts its presence in the form of spousal rape.

Rape Law in India

“Rape is not committed by men but by beasts”. Sec 375 to sec 376E[16] deals with rape, its punishments and different forms. The provision which thwarts criminalizing spousal rape is the exception clause (2) provided in sec 375. Exception 2 of  Sec 375 reads as follows;

“Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The above mentioned provision of law implies that husband having sexual intercourse or sexual acts with wife above fifteen years of age doesn’t amount to the offence of rape.

In this contemporary period, a slew of rape cases have been reported in India. Based on these intolerable offences, the legislators amended the rape laws. The Criminal Law Amendment Act, 2018 [17] whilst amending various outdated provisions of rape, has inserted sec 376AB, sec 376DA and sec 376 DB. But on the other hand, failed to occupy a provision for marital rape as the legislators kept it in abeyance by citing various reasons such as high illiteracy rate, poverty, extreme religious beliefs and the very ‘sanctity’ of marriage. The question that rises now is whether these reasons prevail over the fundamental rights of a woman.

Justice Pardiwala in the High Court of Gujarat[18]observed that a law that does not give married and unmarried women equal protection creates a condition that leads to the marital rape. It allows the 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. 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. Dr.Shashi Taharoor, Member of Parliament  in his private bill “Women’s Sexual, Reproductive and Menstrual Righst Bill 2018 claims to abolish exception 2 of sec 375 so as to make marital rape a crime in India[19]. The Bench comprising Acting Chief Justice Gita Mittal and Justice C. Hari Shankar, on a Petition by the RIT Foundation, with the All India Democratic Women’s Association (AIDWA) and a marital rape victim observed that Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party[20]. The Justice JS Verma Committee[21], while recommending the gradation of sexual offences expressed the view that “Any non-consensual penetration of a sexual nature should be included in the definition of rape”.

Child Spousal Rape in India

Before the verdict of Supreme Court, marital rape committed against the bride who is not less than 15 years of age was legal in India. As like God saved the world, the apex court saved the victims of child spousal rape. In Independent thought vs. Union of India[22], the issue before the court was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? In pursuance of this issue, the court was constrained to address only the problem of child marital rape. The petitioners in this case averred that exception 2 of sec 375 seems to be in conflict with the POSCO Act and violative of constitutional provisions. The court was convinced and in order to render social justice as enshrined in the preamble of our constitution[23], held that exception 2 of sec 375 was repugnant to the provisions of The POSCO Act and ultra vires the constitution. Hence, the judgment was like a guardian to the victims of child marital rape. In addition to, Justice Deepak Gupta in his Judgment wiped the ambiguity and confirmed that Section 198(6) of the CrPC shall apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code[24].

As pointed out in the above case, the ambivalent legislators didn’t show any interest in criminalizing the child marriages in India[25] by showing imbecile reasons like shaking the institution of marriage and traditions. Nevertheless, being a signatory to international conventions they have created an obnoxious situation in India. Finally as usual, the Hon’ble Supreme court executed the law making power as given in the constitution and rescued the victims.

Repugnant with The Constitution

The Constitution of India, magna carta gives us social justice. Social justice is the recognition of greater good to a larger number without deprivation of accrued legal rights of anybody[26]. In marital rape cases the victim’s social justice is subverted. Art 14 which speaks about the egalitarian concept is destroyed in case of spousal rape. In marital rape case, the victim’s right of personal liberty and right of privacy is violated. The right of good health, a species of art 21 is decimated when some people think that it ruins the institution of marriage and the concept of family. Therefore, they must also think that it affects the right to health of the victims. The health problems which are faced by the victims of marital rape as follows;

(i)   Exhaustion

(ii)  Inflammation and swelling of vagina, otherwise called as vaginal excoriation

(iii) Dehydration i.e., loss of energy and stamina

(iv) Chance of c getting contracted with Urinary Tract Infections(UTI) is high

(v)  Bruises or rug burns in genital organs

(vi)  Lower back pain

(vii) Weak immunity

(viii) Psychological problems

The health problems that woman faces having sex after menopause[27]are as follows;

(i) Decrease in vaginal tone or loss of stretch in the vaginal wall; (ii) pain, bleeding or burning during sex; (iii) a feeling of tightness during intercourse; (iv) decreased libido or sexual drive; (v) difficulty becoming or staying aroused and (vi) repeated urinary tract infections.

From the above it can be inferred that the victim’s right to health is being violated. The constitutional courts in plethora of cases reiterated the phrase “Wife is not a chattel”. The Supreme Court in adultery judgment[28] held that “Husband is not the master of his wife”.  Thus, it is very clear that the no one should have sexual acts against their will.

Present Remedies

At present, the legal remedies which are available for the victims of spousal rape are the IPC and the Domestic Violence Act. Sec 498A deals with cruelty caused by the husbands and their relatives[29]. Sec 498A herein under as follows;

“498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

The word “cruelty” in the provision includes both physical as well as mental. So the perpetrators of the crime can be punished by invoking the aforesaid provision of law. As far as Domestic violence law, the remedies are only of civil nature. Sec 3(a) of the Act can be considered as an improvised provision of sec 498A of the Indian Penal Code. Sec 3(a) of the Act enunciates that any harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse[30]. The explanatory part defines the term physical abuse as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force and sexual abuse as any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman[31].On the whole, these remedies are found inadequate to compensate the extreme sufferings of the victims.

Position in other Countries

In the UK, spousal rape is illegal and the punishment ranges from 4 – 19 years of imprisonment. Sometimes if the situation demands the guilty may be punished for life imprisonment. The case of R vs. R was a turning point in England where the House of Lords held that in UK law it was possible for a man to rape his wife. The courts ruled that, even within a marriage, any non consensual sexual activity is rape[32].

For the act of marital rape to be prosecuted, the prosecution must prove that:

*Penetration of the anus, mouth or vagina occurred

*The act of penetration was intentional

*The complainant did not consent to the act of penetration

*The defendant did not believe – within reason – that the complaint had consented to the act.

After the enactment of the Sexual Offenders Act, 2003 spousal rape in the UK was tagged as an odious offence.

In the US, all states have criminalised marital rape, each state has its own law to treat spousal rape. Since earlier, the law was based on the common law jurisprudence the judgement of the House of Lords in R vs. R had a huge impact in US. The strong historical influence of Christianity in the US also contributed to the inception of marital rape laws. The punishment for the offence includes both penalty and imprisonment or either any of them, after the completion of sentence the perpetrators are sent for counselling[33].

Now coming to France, The law criminalizes rape, including spousal rape, and domestic violence, and the government generally enforced the law effectively. The penalty for rape is 15 years’ imprisonment, which may be increased. The government and NGOs provided shelters, counselling, and hotlines for rape survivors[34].

According to Canadian law, the law criminalizes rape of men or women, including spousal rape, as sexual assault, and the government enforced the law effectively. Penalties for sexual assault carry sentences of up to 10 years in prison, up to 14 years for sexual assault with a restricted or prohibited firearm, and between four years and life for aggravated sexual assault with a firearm or committed for the benefit of, at the direction of, or in association with, a criminal organization. Most victims of sexual assault were women[35].

Almost in all the developed and civilized countries the guilty is incarcerated for a longer period and some even labelled this offence as equivalent to rape. Despite the developments in other countries, the Indian law remains anachronistic.

Conclusion

This topic is not about chauvinism versus feminism, to put it in other words, it’s only about empowerment of helpless wives who live under the shadows of animalistic husbands. There are many victims who were coerced to suffer the agony and pain as a result of such offence. It is the bounded duty of the lawmakers to look into the issue by not giving lame excuses such as sanctity of marriage, illiteracy and tradition. The social justice of the victims cannot be veiled by these old archaic reasons. As we are moving towards development, the lawmakers should apply the modernistic jurisprudence approach rather than the old one. Perhaps, India is a country governed by the constitution and it is incumbent on the legislators to secure all three kinds of justice as enshrined in the preamble of the constitution which is, social justice, economic justice and political justice to the people of this country. In my opinion, it is necessary to preserve and keep the right to equality and right to life and personal liberty on a high pedestal rather than, the institution of marriage. I believe if not the legislators, the judiciary may bring a revolution and render complete justice, just like it did in adultery judgment by saying “Wife is not a chattel”.

This content is contributed by Advocate Mervyn Vivek Tamby

Advocate, Mervyn Vivek Tamby

[References]

[1] https://www.thoughtco.com/blackstone-commentaries-profile-3525208.

[2] https://www.merriam-webster.com/dictionary/marriage#legalDictionary.

[3] https://thelawdictionary.org/marriage/.

[4] https://en.wikipedia.org/wiki/Rape#Etymology.

[5] See Chapter XVI of The Indian Penal Code, 1860.

[6] See sec 375 of the Indian Penal Code, 1860.

[7] 2018 SCC OnLine SC 1676.

[8] https://thewire.in/law/india-marital-rape-criminal-law.

[9] https://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Marital-rape-Why-both-sides-have-got-it-wrong/articleshow/47314323.cms.

[10] https://www.thenewsminute.com/article/un-official-says-marital-rape-rape-heres-what-indian-politicians-and-institutions-say-40263.

[11] https://www.lawteacher.net/free-law-essays/family-law/marital-rape.php.

[12] http://www.kentlaw.edu/faculty/fbatlan/classes/BatlanGender&LawS2007/CourseDocs/coursedoc07/Blackstone.pdf

[13] Lee, Robert Warden (1946). An Introduction to Roman-Dutch law (4th ed.). Oxford: Oxford University Press.

[14] http://lawcommissionofindia.nic.in/51-100/report66.pdf.

[15]  2018 SCC OnLine SC 1676.

[16] See sec 375 – sec 376E of The Indian Penal Code, 1860.

[17] https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf.

[18] https://www.livelaw.in/marital-rape-not-husbands-privilege-violent-act-injustice-must-criminalized-gujarat-hc-read-judgment/

[19] https://www.thecitizen.in/index.php/en/NewsDetail/index/7/15986/Marital-Rape-Is-Not-About-Marriage-But-About-Lack-Of-Consent-Shashi-Tharoor.

[20] https://www.livelaw.in/marital-rape-hearing-marriage-does-not-mean-that-wife-should-always-be-willing-to-engage-in-sexual-relations-delhi-hc/.

[21] https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary.

[22] W. P. (civil) NO. 382 OF 2013.

[23] See the preamble of The Constitution Of India.

[24] https://www.livelaw.in/breaking-sex-minor-wife-rape-police-can-register-case-wifes-complaint-sc-reads-exception-2-s-375-ipc/.

[25] See sec 3 of The Prohibition of Child Marriage Act, 2006.\

[26] Durga Das Basu’s Shorter Constitution Of India, 15th edition, page.7.

[27] https://www.medicalnewstoday.com/articles/317542.php.

[28] Joseph Shine  vs. UOI  2018 SCC OnLine SC 1676.

[29] See chapter XXA sec 498A of The Indian Penal Code, 1860.

[30]See sec 3 of the Domestic Violence Act, 2005.

[31]Ibid.

[32] https://www.lawtonslaw.co.uk/resources/what-are-the-legal-penalties-for-marital-rape/.

[33] https://en.wikipedia.org/wiki/Marital_rape_(United_States_law).

[34] https://www.state.gov/j/drl/rls/hrrpt/2017/eur/277165.htm.

[35] https://www.state.gov/j/drl/rls/hrrpt/2017/wha/277315.htm.