The concept of Marital Rape and the available legal provisions The offence of rape is known to all of us. In common parlance, rape means the forcible sexual intercourse by a man upon a woman without her consent. However, it is necessary to understand the finer nuances of this term and what exactly do our criminal statutes say about this.
In India, for criminal offences, we have the Indian Penal Code (1860) and The Code of Criminal Procedure (1908). IPC, as Indian Penal Code is abbreviated as, is the substantive law whereas CrPC prescribes the entire procedure to be followed in case of a crime and is known as the procedural law. IPC is a general statute as it deals with various forms of offences whereas legislation like The Domestic Violence Act, 2005 is specific in nature as it deals with matters pertaining to domestic violence against women alone.
Section 375 of the IPC sets out as to when is a man said to commit rape and includes the following elements for an act to qualify as rape: sexual intercourse done, against her will, without her consent, consent obtained by fear or coercion, consent is given by the woman on the belief that she is lawfully married to that man, consent is given by her on account of unsoundness of her mind due to intoxication or the administration by him personally or through another of any stupefying or unwholesome substance due to which she is unable to understand the nature and consequences of that to which she gives consent and the woman is below 15 years of age.
This was considered to be a very narrow definition of rape and in the event of the gang-rape of a 23-year old physiotherapist intern in Delhi in 2012; the Justice J.S Verma Committee was constituted to amend the criminal laws for women. This resulted in the Criminal Law (Amendment) Act, 2013 wherein a number of changes were incorporated in the IPC. Some of them were: inclusion of gang-rape, acid attacks, eve-teasing etc. Also, the narrow definition of rape, earlier prevalent, was broadened.
Now the definition of rape has been enlarged to include not just penal penetration but any kind of penetration including the insertion of objects on the private parts of the woman along with the essentials mentioned in the above paragraph. However, exception to this section provides that if the woman is the man's wife and she is above 15 years of age, it does not amount to rape. This essentially implies that if a man forces himself upon his wife or forcibly has sexual intercourse with his wife within the wedlock, it is not considered to be a rape in the eyes of law.
This particular non-criminalization of marital rape has been a subject of debate for several years with dissenting voices and those in favor of removing this exception and criminalizing rape committed within the marital ties.
The pertinent question here is: How is the commission of rape justified if the people involved are legally married? Does marriage only means a license to have sex? Does a women's consent over her body has no relevance?
Arguments surrounding Marital Rape The stand of the Indian Government in this regard is shame-worthy. Most of the countries in the developed world had criminalized marital rape a long time back. Women activists in America agitated for the criminalization of marital rape way back in the 1970s. However, we are still lagging far behind. In fact, Maneka Gandhi, Minister for Women and Child Development, recently stated that due to factors like lack of education, poverty, religious beliefs, societal norms, laws on marital rape cannot be suitably applied in the Indian context. This statement of the minister must be condemned in the harshest terms. A crime is not contextual; a crime is a crime irrespective of the place where it is committed. Does this particular stand of the Government imply that married women subjected to rape by their husbands in India, have no legal recourse?
There are voices that raise the question of "misuse" if marital rape is criminalized. All laws can be misused. The question is: Does this mean that there should be no law at all in the first place, just because they can be misused? How valid is this argument? We have Protection of Women from Domestic Violence Act, 2005. It can be stated that even this law can be abused? But has it been scrapped yet?
The Justice Verma Committee had rightly stated that "law ought to specify that marital relationship is not a valid defense against rape."
A crime is a crime. We cannot have two yardsticks for the same offence.
Patriarchy is deeply entrenched in the Indian society. Ideas of masculinity are dominant and a man believes he possesses "ownership rights" over his wife; that just because they are legally married, he is now entitled to have sexual intercourse with her irrespective of her consent.
In fact, 60% of men admitted having kicked, beaten, and slapped etc. their wives to establish their dominance as per a study conducted by The International Center for Research on Women and United Nation Population Fund. In 2013, single largest crime against women was in the realm of domestic violence. Sexual violence, including marital rape, in fact, is an extension of domestic violence or falls within it. Thus marital rape cases can be dealt with under The Domestic Violence Act. But this Act is civil in nature and provides only civil relief like fines, etc and marital rape must be attributed as a criminal offence. Hence, amendment of the IPC is a necessity.
However, such a change will not be a reality soon. Even the Supreme Court, considered to be the watch-dog/guardian of the Constitution has rejected to even admit a plea by a woman to declare marital rape a criminal offence. She had challenged the exception to Section 375 of the IPC. Also, a Public Interest Litigation in this regard was dismissed by the top court stating that it is up to the legislature to take a call. Even the Parliamentary Standing Committee on Home Affairs stated that criminalization of marital rape would put the "family system in India under stress".
The 172nd Report of the Law Commission has ruled out the criminalization of marital rape on the ground that doing so "may amount to excessive interference with the marital relationship."
A UN Survey in 2014 reported that "1 in every 5 women in India, suffered rape in an intimate partnership."
In India, social stigma attached to a divorce or remarriage are reasons why women adopt the "culture of silence" and thus, does not report. Also, women fear the repercussions. For example, if she is financially dependent and has children and ailing parents to look after, she would rather be quiet regarding her sufferings and not put the lives of her dear ones at jeopardy.
In India, a lot of sanctity is attached to the institution of marriage. And apart from that, a marriage is presumed to be a "sexual contract" wherein the consent for sex is considered implied. If marital rape is criminalized, these sections of the society believe that the institution of marriage will be threatened as women would be empowered to allege marital rape and free themselves of their marital ties whenever they wish. However, this is totally not a plausible argument because as already stated, a crime is a crime irrespective of the context and all laws can be misused, that does not mean that there should be no law at all or due to misuse by a few, the innocent ones should suffer.
Conclusion It is sad that married women are not the subject of rape laws. It is also strange that even Section 376 of the IPC which prescribes the punishment for rape has an exception for married women. If the woman raped is the man's wife and is not under twelve years of age, then, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both whereas in other instances i.e. rape outside wedlock, punishment can be imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.
It is strange that when the marriageable age for a woman in India is set at 18, she is accorded legal protection from rape only till the age of 16, (as per Section 376 of the IPC).
Despite the Supreme Court ruling of 2015, it cannot be denied that forcible sexual intercourse with a woman irrespective of her marital status is a violation of her "personal liberty" and the "right to live with dignity" under Article 21 of The Constitution of India. Issue of "right to bodily self-determination" and "right to sexual privacy" of the woman should be the requisite concerns and not the preservation of marriage per se because marriage is a bond of trusts and if trusts do not remain, the marriage is devoid of any sanctity.
United Nations Development Programme Chief Helen Clark had rightly remarked that: "the issue is not one of culture but consent."
Currently, as the law stands, the IPC only criminalizes marital rape if the wife is less than 15 years of age. However, this is contrary to the recently enacted Protection of Children from Sexual Offences Act, 2012, which criminalizes all forms of sexual activity with any child irrespective of gender. The Act defines a child as anyone below the age of 18. Thus, within the current legal framework, marital rape would be an offence if the woman is below the age of 18.
The mandate is now on the Indian Government to rise above issues of culture and context and view the issue from the perspective of the woman in suffering and her rights that have been sacrificed on grounds for which she is not at fault. If the State has failed to generate awareness or eradicate poverty or provide literacy, why should women bear the brunt of the same?
Many countries in the world have made it a crime for a husband to force his wife to have sex. It started with the United States which began criminalizing marital rape in 1970s followed by most of the European countries which started in the 1990s. More recently, Turkey changed its law in 2005, Malaysia in the year 2007 and Bolivia in 2013.
In India, there had been an ongoing debate on the issue as to whether criminalize rape within marriage or not. So far the Governments version was that such a move has a potential of destroying the institution of marriage. It has been argued that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context. Some of the reasons cited to support the argument were the level of education/illiteracy, poverty, social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament, etc.
Some of the other countries which have not yet criminalized marital rape are China, Afghanistan, Pakistan and Saudi Arabia.
Marital rape, like any other rape, is a heinous crime, there is not even an iota of doubt. However, from legal point of view, it is extremely difficult to prove marital rape. This is applicable even in western countries, which are technologically (medical examination) more advanced.
I sincerely feel that to prevent marital rape, a woman has to be physically strong, so that she can resist any undesired advancement from her husband. It is just similar to any other type of rape. Candle-light movement, panel discussion, etc. won't help. Women must acquire physical, mental and financial strength to prevent such crime.