Marital Rape - Thilagavathi K ~ LawDudes

MARITAL RAPE

INTRODUCTION

Generally, many societies do not understand what marital rape means. They think it’s an oxymoron. However, “how can it be rape, if you’re married?” This is an old and regressive way of looking at things. Around 150 countries in the world have criminalized marital rape. Unfortunately, only 36 countries still haven’t. India is one among them.

“Her friend used to tell her it wasn’t rape if the man was her husband. She didn’t say anything, but inside she seethed; she wanted to take a knife to their faces.”—F.H. Batacan

LEGAL POSITION IN INDIA

Criminal Law Aspect

Rape is unlawful sexual intercourse carried out forcibly or under threat against a person’s will or consent. In India, Rape is a criminal offense under sections 375 and 376 of the Indian Penal Code (IPC).[i] Shockingly, section 375 of the IPC categorically excluded marital rape from the definition of rape; that is, if a husband forces his wife to have sexual intercourse with him, then it is not considered rape. There is only one exception to this section. If the wife is under fifteen years of age, then it is considered as rape.

It looks back to the idea that marriage makes a woman her husband’s sexual property and giving him sex whenever he wants is a wife’s duty. We support this sexual subjugation of women in marriage in different ways, through religious rituals, social festivals, and also in our culture. On the one hand, this sexual subjugation is shown to be harmless and on the other hand, news, media, TV shows, and movies reinforce the mindset that the threat of rape or sexual violence only comes from “monstrous outsiders.” But here are the facts: Over 80% of married women who are victims of sexual violence report their current husbands as the perpetrators, and 9% report their former husbands.

Activist movements have led to many progressive changes in India’s anti-rape laws in 1983 (The Criminal Law—second amendment), in 2002 (Amendment to Indian Evidence Act), in 2012 (Protection of Children from Sexual Offense—POCSO Act), and again in 2013 (Criminal Law Amendment Act). Marital rape is a form of physical and mental cruelty done by the husband to his wife. So, the wife can invoke section 498A of IPC for cruelty against the husband. This is one of the remedies available to the victim for protection from marital rape.

Civil Law Aspect

Marital rape is considered as a form of domestic violence under the Protection of Women from Domestic Violence Act, 2005. Section 3 states that “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it harms or injures or endangers the health, safety, life, limb or wellbeing, 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. It also states that sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.”[ii] Under this act, the offense of marital rape provides for a lesser punishment than non-marital rape. This is also one of the remedies available to the victim for protection from marital rape.

Constitutional Law Aspect

Marital rape is a clear violation of Women’s Fundamental Rights, that is, the Right to Equality (Article 14) and the Right to Life and Personal Liberty (Article 21).

Violative of Article 14

Article 14 of the Indian Constitution states that “the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.”[iii] It permits reasonable classification, and it should be based on intelligible differentia and rational nexus. However, exception 2 of section 375 of IPC violates the right of married women who are the victims of marital rape by treating them differently than other victims of rape. The classification based on marital status does not satisfy the test of reasonableness; and hence, it violates Article 14 of the Indian Constitution.

Violative of Article 21

Article 21 of the Indian Constitution states that “no person shall be deprived of his life and personal liberty except according to the procedure established by Law.”ⁱⁱⁱ The Supreme Court has interpreted this article in various judgements. It says that the Right to Life and Personal Liberty also includes the right to health, privacy, live with human dignity, a safe environment, and others. In Maneka Gandhi case, the Court said that the right to life is not restricted to mere animal existence but also includes the right to live with human dignity.[iv] However, exception 2 of section 375 of the IPC violates the right to live with human dignity, the right to bodily self-determination, the right to privacy, and the right to good health.

In Bodhisattwa Gautam v. Subhra Chakraborty (1995), the Supreme Court said that rape is a crime against not only women but also the entire society. It destroys the whole psychology of a woman and pushes her into deep emotional crises[v] and thus it infringes article 21 of the Indian Constitution.

In Suchita Srivastava v. Chandigarh Administration, the Supreme Court held that the right to make choices in sexual activity flows from the right to personal liberty under article 21 of the Constitution. It says that taking away a woman’s choice regarding her own body would amount to a violation of her right to privacy.[vi]

In Justice K.S. Puttaswamy v. Union of India, the Supreme Court held that each individual has the right to privacy under article 21 of the Indian Constitution.[vii] The Right to Privacy includes the right to engage in a sexual act, the Right to bodily integrity, sexual autonomy, and self-determination.

LEGALLY RAPED

There is a systemic problem with the interpretation of section 375 of IPC. What are we looking at?: A crime or relationship. Consent is consent. Rape is rape. It doesn’t matter how the victim and assault are related, and this is precisely what Delhi High Court asked in RIT Foundation v. Union of India. The case before them is very simple. Does marital rape violate constitutional rights like the right to equality, right to life, and personal liberty? The court says it does. The Judge said “A woman was unwilling; the man imposes himself... An offence has happened... The only reason the accused is not visited by Section 375 of IPC is that they are married... A woman is a woman before and after marriage... Jurisdiction after Jurisdiction has held that merely because you are married, it is not enough to say rape is not an offence.”[viii] But the Government refuses to change the law. Some say it will destabilize the institution of marriage. How could one even respond to criticism like this? If the husband is forcing his wife to have sex, how is this a stable institution? It has already become a cruel and offensive setup. If the argument is to save the institution of marriage, then marital rape must be criminalized. But legal changes alone will not help, we as a society must change our perception. We must understand what consent means. Marriage is not a lifetime consent form. A woman has the right to say no to anyone at any time to a husband, to a boyfriend, to anyone and that must be the foundation of our legal system.

Another argument against the proposal is this, what if the people misuse this law? What if they make fake allegations? First of all, such a mindset exposes their misogyny. We are debating a law to protect women and the first question that comes to your mind is this, what if a woman misuses it? Second, no law is perfect. There will always be loopholes. But the greater good must prevail. For centuries, men have dominated society. Everything was skewed in their favor—our culture, our legal system, our society, our economy, and our job market. I don’t remember men complaining then. So why all the outrage over this proposal? Criminalizing marital rape is not a woman’s right. It’s a human right. We must think deeply about what the Delhi High Court is asking. “Sex workers can say no at any stage of intercourse then why not a married woman?” This question was asked by the Delhi High Court and the fact is Government had no answers. Let’s not make this about sensitivities and institutions. As the Judge put it, a crime has happened that is what the debates come down to. Surveys have found that one in three married women has experienced some sort of violence from their spouse. How long can we ignore these numbers? How long can we treat marriages as permanent consent for sexual relations? And this is not a man versus woman debate, it’s a simple principle of consent, “yes or no” and that consent is the same for everyone “wife or not.”

CONCLUSION

It’s high time that we should drop the notion of implied consent in marriage. The immediate requirement is to criminalize marital rape to reduce the rate of sexual offense within marriage. The law must uphold the equality, dignity, and bodily autonomy of all women irrespective of marital status. Marital rape is a heinous and voiceless crime. It is merely an eleven-letter word that is capable enough to tear apart a woman mentally, physically, and emotionally leaving behind an unrecoverable mark upon her soul. The awareness among the people of society with strict, responsible, and well-enforced laws shall be a boon to the victims and help to cure the deeply embedded sexism, patriarchal structure, and asymmetrical relation within a marriage.