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MARITAL RAPE IN INDIA- CAN IT BE CRIMINALIZED?

Abstract:

Non-consensual sex within marriage is not considered rape in India, one of the few countries in the world. One of the more contentious issues is whether marriage provides the husband with an expectation of intercourse and whether the wife implicitly consents to sex. Will removing this exception result in the creation of a new crime? Because marital rape is not currently classified as rape, the court should read the exception. A jury of two judges from the Delhi High Court has been hearing a series of petitions aimed at overturning the Indian Penal Code’s marital rape plea since January 20, 2022. The Supreme Court ruled in the case of the State of Maharashtra v. Madhkar Naraya in 1991 that every woman has a right to privacy that must be respected. We’ll look at the concept of marital rape in this article.

Introduction:

The RIT Foundation v Union of India case was decided on May 11 by two judges from the Delhi High Court. The case in front of the Court was simple. Rape is defined by section 375 of the IPC as when a man has sex with a woman without her consent. Section 375, on the other hand, does not consider having sex with a wife without her consent to be rape. A husband cannot be accused of raping an adult wife under the law. The Delhi High Court has received four petitions challenging the constitutionality of the “marital rape exception.”

Because it is a religious ceremony, any sexual act performed within the confines of a marriage is not considered illegal. When there is no consent, rape is defined as sexual intercourse or sexual penetration. As a result, proving rape necessitates proving the absence of consent. In most cases, it is the victim’s responsibility to demonstrate that there was no consent. Minors, for example, are presumed to be unable to consent to such acts by law, so consent is unlikely. However, consent is commonly assumed when the victim and the offender are married.

In the patriarchal system that governs Indian families, women have always been regarded as property of their significant others or guardians. As a result, rape was viewed as both a theft of a woman’s property and a crime against her husband or guardian. Our legislators have been influenced by this belief system to overlook the spouse’s rape crime by granting him the protection of his spouse’s right to marry, thus quietly tolerating that women are nothing more than a protest of his sweetheart’s sexual satisfaction, with no control over his sexuality. The right of women to equality and uniformity was established with this decision.

Rape is more than just ferocity against women; it is a grave violation of a person’s fundamental right to life and individual freedom. Nothing changes because there is a link between the victim and the offender. As a result, it is incorrect to assume that having sex with your spouse is a privilege bestowed on the husband by marriage. Marital rape is associated with social shame because it silences a woman’s voice against her husband, who takes advantage of her advantageous position to break her trust and trustworthiness. It has been proven that marital rape is more traumatic, with long-term physical and mental consequences. As a result, in some countries, marital opposition to spouses has decreased. Our state fails to fulfill its responsibility to ensure sexual fairness, which includes protection from wrongdoing and mistreatment, by decriminalizing spouse rape.

Several countries have now passed laws prohibiting marital rape, revoked special cases of marital rape, or enacted laws that do not distinguish between marital and ordinary rape. This demonstrates that marital rape is now considered a human rights violation. In 2006, more than 100 countries were estimated to have made marital rape illegal, but India was not one of them. According to those in charge of the strategy, despite the fact that India has passed numerous laws and institutions addressing violence against women in their homes, such as laws prohibiting the murder of girls and domestic violence, marital rape has yet to be recognized as a crime. In India, the sacred draperies of marriage hide marital rape.

Marital Rape and laws:

In India, rape in a married relationship is not a crime. In India, laws against marital rape are either non-existent or esoteric, and are interpreted by the courts. “A man’s sexual relations with his wife, his wife who is no less than 15 years old, are not rape,” says section 375 of the Indian Penal Code (IPC).  Unless the raped woman is the spouse and is not less than 12 years old, the rapist should be punished with imprisonment or imprisonment for a period that can extend to life imprisonment or up to 10 years, in addition to the fine, under article 376 of the CPI.

As a result, marital rape is only considered if the spouse is under the age of 15, and the punishment is less severe. After the age of 15, the spouse has no legal protection, which is against international human rights standards. A similar law that raises the legal age of consent for marriage to 18 protects only children under the age of 15 from sexual abuse.

When the wife is between the ages of 12 and 15, the offense is punishable by up to two years in prison or a fine, or both, under the Indian Penal Code; when the spouse is under the age of 12, the offense is punishable by up to ten years in prison and shoving. Rape of a legally separated spouse can carry a sentence of up to two years in prison and a fine, but not rape of a wife over the age of 15.

The Protection of Women from Domestic Violence Act, passed by Congress in 2005, recognizes marital rape as a form of domestic violence. A woman can sue her husband for marital rape under this law through legal division. Marital rape is irrational because it damages a woman’s affection and trust, leaving her feeling insecure and afraid. In the sacred place of marriage, he must give up his human rights. On the other hand, laws protecting the rights of victims of marital rape are inadequate and ineffective, and the methods employed are unacceptable.

These “laws” are based on the assumption that marriage entails consent to sexual activity. Is it true, however, that consenting to sexual activity entails consenting to sexual violence? The woman feels threatened and insecure as a result of the brutality, so she submits to sex. This is not the same as giving your consent to engage in sexual activity. In criminal law, the distinction between assent and non-assent is critical.

It’s odd that a woman’s right to life and liberty is protected in her marriage but not in her body. Rape should be defined differently (IPC section 375). Women have been using IPC section 498-A, which deals with the lack of remorse, to protect themselves from “unreasonable sexual intercourse directed by the spouse” until now. In any case, in marital relationships, there is no legal definition of ‘perversion’ or ‘unnatural.’ Is it possible to have too much sexual desire? Isn’t consent a prerequisite for everything? Is raping your partner legal? There is no response because both the judiciary and the legislature are deafeningly silent.

Reasons for Marital Rape not being a crime in India:

Women’s voices are silenced in a patriarchal society based on marriage. Making marital rape a crime, according to former Chief Justice of India Dipak Mishra, would cause complete anarchy in families and that our country’s survival depends on the family platform, which upholds family values. Marital rape cannot be criminalized due to existing traditions and social values. According to the Indian government, those who try to prevent women from being raped by their husbands are following Western countries’ lead.[1]

Our culture is built on the idea that once a woman marries, she gives her husband perpetual sexual consent. By mutual consent and marriage contract, the wife has thus relinquished her rights to her husband, which she cannot revoke. Judge Matthew Hale of the United Kingdom ruled that a husband cannot be held liable for raping his legitimate wife. The union government claimed in an affidavit to the Delhi High Court that a law criminalizing marital rape could be used to harass husbands, absurdly arguing that if all sexual acts between a husband and his wife occur, then the wife will be the sole judge of whether it is marital rape or not.[2]

This argument that women will falsely accuse their husbands and that, even if they do, the judiciary will be there to assist them has been made numerous times. Marital rape is a heinous, oppressive, and violent crime, which is the only valid justification or argument. Although the Indian constitution guarantees equality, the marital rape law is unconstitutional because it discriminates against women raped by their husbands.

Many women could use the criminalization of marital rape as a pretext to file a false report against their husbands, according to men’s rights activists. Making marital rape illegal, they argue, would encourage the wife to harass her husband. The male victim will not be able to prove his innocence because the wife’s relationship with her husband is essentially sexual in nature and the wife’s denunciation will be the main witness of the crime.

International Convention on Marital Rape

India should end marital impunity, according to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW). “Any distinction made on the basis of sex which has the effect of preventing… the exercise by women, regardless of their marital status… of human rights and fundamental freedoms in the…, cultural, civil or any other field,” according to Article 1 of the CEDAW.

The Indian Penal Code’s marital impunity also goes against General Recommendation 19, which labels mental and sexual violence against women as discriminatory. Sexual and mental harms, according to the report, deny women equal access to human and fundamental rights. General Recommendation 35 expands on General Recommendation 19 by stating that marital rape is defined by the use of coercive measures and the lack of free consent.

Despite the fact that India has not signed the CEDAW Optional Protocol, Article 2 mandates that women be protected regardless of their marital status. The organization may impose sanctions if the aforementioned provision is not followed.

India also violates the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights by granting marital immunity. According to Article 26 of the International Covenant on Civil and Political Rights, domestic law should ensure that all citizens, regardless of their status or race, are treated equally. Married and single women react to rape in the bedroom differently.

As a member state, India should not be allowed to violate any of Article 5’s fundamental rights. Due to the discriminatory nature of exception 2 to Article 376, India also violates Article 1 of the Universal Declaration of Human Rights.

India’s law also goes against the Beijing Declaration on the Status of Women. The Beijing Platform for Action encourages countries to adhere to CEDAW’s provisions, including the Optional Protocol, and to amend or repeal discriminatory provisions in national legislation.

Violence against women is a violation of their human and fundamental rights, according to the 59th session of the Commission on Human Rights, held in 2003. The United Nations has expressed concern about the dangers of laws that allow for marital rape on numerous occasions. In its annual Progress of the World’s Women report, UN Women urged member countries to make marital rape a criminal offense. He also chastised various countries’ “marry your rapist” laws.

Chief Justice Sir Mathew Hale’s book The History of the Pleas of the Crown, published in 1736, laid out the theory of implied consent. “The husband cannot be guilty of raping his lawful wife because the wife has thus given herself to her husband with their mutual consent and marriage contract, which she cannot retract,” she claimed. This theory has been adopted by the legal systems of all British colonies, as well as the British common law system. Another common law principle that supported the theory of implicit consent is the doctrine of coverage. When a woman married, her legal rights were subsumed by those of her husband, according to this doctrine. The theory of implied consent underpins this doctrine. The idea that husband and wife are the same person is a legal fiction.[3] The Doctrine of Coverture was widely accepted in England until the feminist movement in the mid-nineteenth century. It was considered oppressive to force women to exercise their legal and financial rights.

Judicial Interpretation:

We’ll look at a few examples, as well as the story of a husband who seriously injured his wife. Marital rape law does not apply after fifteen years between husband and wife, according to Queen Empress v. Haree Mythee[4]. The husband was found guilty of rupturing his 11-year-old wife’s vagina and inflicting an injury on her that resulted in her death under section 338 of the Indian Penal Code, 1860.

The Andhra Pradesh High Court held in Saretha v. T. Venkata Subbaih[5] that the enforcement of the restitution of marital rights decree violates the inviolability of the person subject to the decree, as well as marital integrity and privacy, and that person’s home intimacy.

According to the Supreme Court of Karnataka’s ruling against Krishnappa, sexual violence is an illegal invasion of a woman’s right to privacy and holiness, as well as a dehumanizing act. Non-consensual sexual intercourse is considered physical and sexual violence, according to the same decision.

The Supreme Court equated the right to choose sexual activity with constitutional rights to personal freedom, privacy, dignity, and physical integrity in the case Suchita Srivastava v. Chandigarh Administration[6].

The Supreme Court defined the right to privacy on one’s body in the case of State of Maharashtra v. Madhukar Narayan Mardikar[7]. The right of a prostitute to refuse sexual activity has been established. Stranger rape is illegal, and all women, except wives, have the right to privacy over their bodies, which includes the ability to refuse sexual intercourse and refuse consent. The issue is that marriage is highly regarded. Rather than forcing the wife to meet her husband’s every need, especially sexually, mutual respect and trust should flourish. Being raped by a friend is far more traumatic, and living with them makes it even worse.

The Supreme Court of India recognized the right to privacy as a fundamental right of all citizens in the case of Justice KS Puttuswamy (Retd.) V. Union of India.[8]

As defined by “decision-making privacy,” “the ability to make intimate decisions that primarily involve one’s sexual or procreative nature and decisions regarding intimate relationships.”

In each of these cases, the Supreme Court recognized the right to refrain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution to all women, regardless of marital status. As a result, forced sexual coexistence is a violation of the Constitution’s Article 21.

In Different Countries:

In 1932, Poland became the first country to make marital rape illegal. In 1976, Australia became the first common law country to pass reforms making marital rape a criminal offense, thanks to the impact of the second wave of feminism in the 1970s. Several Scandinavian and Communist bloc countries, including Sweden, Norway, and Denmark, as well as the former Soviet Union and Czechoslovakia, had passed laws making marital rape illegal over the previous two decades. In 1932, Poland became the first country to make it illegal. Many common law countries have abolished marital rape immunity through legislation since the 1980s. South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel are among the countries represented.

Between the 1970s and 1993, all 50 US states made marital rape illegal. The New York Court of Appeals repealed the marital exemption in 1984. The European Parliament Resolution on Violence Against Women of 1986 called for the criminalization of marital rape, which France, Germany, the Netherlands, Belgium, and Luxembourg quickly implemented. The common law principle that a marriage contract implied a woman’s consent to all sexual activities was overturned by the UK House of Lords in 1991.

The spousal rape exception was abolished in Nepal in 2002 after the country’s Supreme Court ruled that it was infringing on constitutional rights to equal protection and privacy. The statement read, “It is not a reasonable classification of the law that an act committed against an unmarried girl becomes a crime while the same act committed against a married woman does not.”

According to the 2011 United Nations Women’s Report, 52 countries have changed their laws to make marital rape a crime. The remaining countries are those that have made an exception for marital rape in their rape laws, as well as those that haven’t and can prosecute their spouse under general rape laws.[9]

Conclusion:

In India, marital rape is not entirely prohibited. It is undeniably a serious form of female abuse that necessitates government intervention. Women who have been raped by their husbands or wives are more vulnerable to a variety of attacks and frequently suffer from long-term physical and emotional issues. Marital rape is much scarier for a woman in this situation because she has to live with her tormentor on a regular basis. Due to the seriousness of the consequences of marital rape, it is clear that the crime must be criminalized. Positive legal changes for women are occurring in India, but more work is required to achieve both legal and social changes, such as criminalizing marital rape and changing attitudes toward women in marriage. The law protecting women from domestic violence has numerous flaws because it does not expressly prohibit marital rape. On the plus side, passing a law prohibiting domestic violence has paved the way for legislation prohibiting marital rape. This reflects a shift in the state’s mentality, which previously valued non-interference in family situations.

 

[1] https://theswaddle.com/marital-rape-inda-decriminalized-crime/

[2] https://indianexpress.com/article/explained/marital-rape-a-crime-in-many-countries-an-exception-in-many-more-4821403/

[3]https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms

[4] (1891) ILR 18 Cal 49

[5] AIR 1983 AP 356

[6] (2009) 14 SCR 989, (2009) 9 SCC 1

[7] AIR 1991 SC 207

[8] (2017) 10 SCC 1

[9]https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision#:~:text=Justice%20Choudary%20held%20that%20%E2%80%9Ca,at%20the%20heart%20of%20the/

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