Marital Raperefers 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. Marital rape could be
by the use of force only, a battering rape or a sadistic/obsessive
rape. It is a non-consensual act of violent perversion by a husband
against the wife where she is physically and sexually abused.
Approximations have quoted that every 6 hours; a
young married woman is burnt or beaten to death, or driven to suicide
from emotional abuse by her husband. 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.
Historically, “
Raptus”, the generic term
of rape was to imply violent theft, applied to both property and
person. It was synonymous with abduction and a woman’s abduction or
sexual molestation, was merely the theft of a woman against the consent
of her guardian or those with legal power over her. The harm,
ironically, was treated as a wrong against her father or husband, women
being wholly owned subsidiaries.
The marital rape exemption can be traced to
statements by 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.”
Not surprisingly, thus, married women were never
the subject of rape laws. Laws bestowed an absolute immunity on the
husband in respect of his wife, solely on the basis of the marital
relation. The revolution started with women activists in America
raising their voices in the 1970s for elimination of marital rape
exemption clause and extension of guarantee of equal protection to
women.
In the present day, studies indicate that
between 10 and 14% of married women are raped by their husbands: the
incidents of marital rape soars to 1/3rd to ½ among clinical samples of
battered women. Sexual assault by one’s spouse accounts for
approximately 25% of rapes committed. Women who became prime targets for
marital rape are those who attempt to flee. Criminal charges of sexual
assault may be triggered by other acts, which may include genital
contact with the mouth or anus or the insertion of objects into the
vagina or the anus, all without the consent of the victim. It is a
conscious process of intimidation and assertion of the superiority of
men over women.
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, the provision of rape in the Indian
Penal Code (IPC), has echoing very archaic sentiments, mentioned as
its exception clause- “Sexual intercourse by man with his own wife, the
wife not being under 15 years of age, is not rape.” Section 376 of IPC
provides punishment for rape. According to the section, the rapist
should be punished with imprisonment of either description for a term
which shall not be less than 7 years but which may extend to life or
for a term extending up to 10 years and shall also be liable to fine
unless the woman raped is his own wife, and is not under 12 years of
age, in which case, he shall be punished with imprisonment of either
description for a term which may extend to 2 years with fine or with
both.
This section in dealing with sexual assault, in a
very narrow purview lays down that, an offence of rape within marital
bonds stands only if the wife be less than 12 years of age, if she be
between 12 to 16 years, an offence is committed, however, less serious,
attracting milder punishment. Once, the age crosses 16, there is no
legal protection accorded to the wife, in direct contravention of human
rights regulations.
How can the same law provide for the legal age
of consent for marriage to be 18 while protecting form sexual abuse,
only those up to the age of 16? Beyond the age of 16, there is no remedy
the woman has.
The wife’s role has traditionally been
understood as submissive, docile and that of a homemaker. Sex has been
treated as obligatory in a marriage and also taboo. Atleast the
discussion openly of it, hence, the awareness remains dismal. Economic
independence, a dream for many Indian women still is an undeniably
important factor for being heard and respected. With the women being
fed the bitter medicine of being “good wives”, to quietly serve and not
wash dirty linen in public, even counseling remains inaccessible.
Legislators use results of research studies as
an excuse against making marital rape an offence, which indicates that
many survivors of marital rape, report flash back, sexual dysfunction,
emotional pain, even years out of the violence and worse, they
sometimes continue living with the abuser. For these reasons, even the
latest report of the Law Commission has preferred to adhere to its
earlier opinion of non-recognition of “rape within the bonds of
marriage” as such a provision may amount top excessive interference wit
the marital relationship.
A marriage is a bond of trust and that of
affection. A husband exercising sexual superiority, by getting it on
demand and through any means possible, is not part of the institution.
Surprisingly, this is not, as yet, in any law book in India.
The very definition of rape (section 375 of IPC)
demands change. The narrow definition has been criticized by Indian
and international women’s and children organizations, who insist that
including oral sex, sodomy and penetration by foreign objects within the
meaning of rape would not have been inconsistent with nay
constitutional provisions, natural justice or equity. Even
international law now says that rape may be accepted a s the “sexual
penetration, not just penal penetration, but also threatening, forceful,
coercive use of force against the victim, or the penetration by any
object, however slight.” Article 2 of the Declaration of the
Elimination of Violence against Women includes marital rape explicitly
in the definition of violence against women. Emphasis on these
provisions is not meant to tantalize, but to give the victim and not
the criminal, the benefit of doubt.
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 behaviour.
The importance of consent for every individual
decision cannot be over emphasized. A woman can protect her right to
life and liberty, but not her body, within her marriage, which is just
ironical. Women so far have had recourse only to section 498-A of the
IPC, dealing with cruelty, to protect themselves against “perverse
sexual conduct by the husband”. But, where is the standard of measure
or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the
definitions within intimate spousal relations? Is excessive demand for
sex perverse? Isn’t consent a sine qua non? Is marriage a license to
rape? There is no answer, because the judiciary and the legislature
have been silent.
The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to 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 [2004 (5) SCC 518], ‘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.
The much awaited Domestic Violence Act, 2005
(DVA) has also been a disappointment. It has provided civil remedies to
what the provision of cruelty already gave criminal remedies, while
keeping the status of the matter of marital rape in continuing
disregard. Section 3 of the Domestic Violence Act, amongst other things
in the definition of domestic violence, has included any act causing
harm, injury, anything endangering health, life, etc., … mental,
physical, or sexual.
It condones sexual abuse in a domestic
relationship of marriage or a live-in, only if it is life threatening
or grievously hurtful. It is not about the freedom of decision of a
woman’s wants. It is about the fundamental design of the marital
institution that despite being married, she retains and individual
status, where she doesn’t need to concede to every physical overture
even though it is only be her husband. Honour and dignity remains with
an individual, irrespective of marital status.
Section 122 of the Indian Evidence Act prevents
communication during marriage from being disclosed in court except when
one married partner is being persecuted for n offence against the
other. Since, marital rape is not an offence, the evidence is
inadmissible, although relevant, unless it is a prosecution for
battery, or some related physical or mental abuse under the provision
of cruelty. Setting out to prove the offence of marital rape in court,
combining the provisions of the DVA and IPC will be a nearly impossible
task.
The trouble is, it has been accepted that a
marital relationship is practically sacrosanct. Rather than, making the
wife worship the husband’s every whim, especially sexual, it is
supposed to thrive n mutual respect and trust. It is much more traumatic
being a victim of rape by someone known, a family member, and worse to
have to cohabit with him. How can the law ignore such a huge violation
of a fundamental right of freedom of any married woman, the right to
her body, to protect her from any abuse?
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 form 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.
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