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“When men are oppressed, it's a tragedy. When women are oppressed, it's tradition.”-Letty Cottin Pogrebin

Women, in most of the countries of the world, are often considered as the inferior sex and are prone to innumerable offences right from the day they are born. From female infanticide to child marriages, from acid attacks to sexual assault, from female genital mutilation to rape, women are often made to bear the brunt of everything until they take their last breath.

Rape is considered to be the most heinous of all the crimes committed against women. It is even worse than a murder where the victim dies, but in the offence of rape, the victim does not always die and has to live the rest of her life as a reminder of that dreadful day on which she was raped. When a woman is raped, the abhorrent act wrecks her not only physically but also psychologically, shattering her mind and soul. Though not specific to any gender, it mostly affects the women in general.

The offence of rape has become so common that it happens in almost every country of the world despite stringent laws in place. The rate at which the rape cases are sky-scraping shows the need of the hour to ameliorate the situation before it worsens further.

Marital rape is one of the species of rape, which can be defined as undesirable sexual intercourse by a man with his own wife without her consent. As rape is punishable in almost all the countries of the world, the same cannot be said about marital rape. India is among one of those thirty-six countries where it is not considered a crime. The women have been given the right to fight for protection when the violators are outside entities, but when the perpetrator of her body is her own husband, to whom she is married with all pomp and show, such protection is withdrawn by the legislators.

In the pre-conceived notion, that by marriage a woman gives implied consent to her husband to have sexual intercourse with her at any time on his will, lies the origin of the exception of marital rape from rape. Sir Matthew Hale described this view and wrote that “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself upon his lawful wife, for by their consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.’’

Also, in State v. Oliver, the 1874 North Carolina case it was held that it would not open the courts door to every type of marital assault: “If no permanent injury has been inflicted, nor malice, cruelty, nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”

Moreover, women in the past were considered as husband’s property, to be used in whatever way they like. In such times criminalizing marital rape was a distant dream. Many women have been victims of this dreadful crime ever since. But as the saying goes, that “there is nothing permanent except change”, the same applies to marital rape too. With changing times, many developed and developing countries have criminalized marital rape with certain exceptions, of course.

The 19th century began with whole-hearted criticism from the feminist groups of the presumed right of men to have coerced sexual intercourse with their wives whenever they deem fit. The feminist groups demanded that women should be given right in respect of their own bodies equal to that of men. Massive support came from British liberal feminists including John Stuart Milland Harriet Taylor and many others. Since 1960s onwards feminists worked with all their blood, sweat and tears towards a trail of criminalizing marital rape.

With the development of the concept of human rights, in December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women, which recognizes marital rape as a human rights violation. But, not all members of the UN member states recognize this declaration.

There are many countries, which have criminalized marital rape but there is also quite a handful of them, which have not. For instance, Soviet Union criminalized marital rape in 1922, Poland in 1932, Czechoslovakia in 1950 and Norway in 1971. Even Israel criminalized marital rape in 1980. Many other countries followed suit including the USA where the criminalization process had started in mid-1970s and marital rape was declared a crime by 1993 in all its 50 states.

Some of the recent countries, which have successfully criminalized marital rape, include Turkey (2005), Mauritius (2007), Malaysia (2007), Thailand (2007), Rwanda (2009), South Korea (2009) and Jamaica (2009).

When talking about India, marital rape exists de facto but to make it exist de jure there is still left a long path of hurdles which needs to be crossed.

Marriage is considered, as a sacred institution in India and though very prevalent, marital rape is hidden behind the sacrosanct veils of marriage as also stated by the then Minister of State for Home Affairs Haribhai Parthibhai Chaudhary in the Rajya Sabha on April 29, 2015- “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs, and values, religious beliefs, mindset of the society, to treat marriage as sacrosanct.”The statement was criticized by legal luminaries and social activists as well. I wonder that how can such a cruel marriage be called as sacred in the first place. What is sacrosanct about it?

It is saddening to know that neither the Indian Penal Code, 1860 nor the Domestic Violence Act, 2005 specifically recognizes marital rape as a crime.

Moreover, rape is punishable in India under Sec. 376 of the IPC, but marital rape is not, it is, in fact, an exception to rape as mentioned under Sec. 375 as, sexual intercourse by the husband with his own wife and wife not being under 15 years of age is not considered as rape. Even though Sec. 376B of the IPC provides for protection of women upon judicial separation, where non-consensual sexual intercourse by a husband takes place upon his own wife during judicial separation. Under Sec. 376B there is a provision for punishment, which is imprisonment up to two years and also fine. But, the said provision does not recognize the offence as marital rape.

It is quite ironic that there are stringent laws in place for rape but not for marital rape. The reason not to punish the culprit just because he is the husband of the victim is biased, not to mention illogical.

There have been numerous changes from time to time in the rape laws of the country to make them adaptable with the changing needs of the society including the Criminal Law (Amendment) Act, 2013 and the very recent changes proposed in the Criminal Law (Amendment) Ordinance, 2018 which has provision for death penalty for child rapists, provisions for speedy investigation and trial of rape cases, an increase in the minimum quantum of punishment for rape convicts and the scrapping of anticipatory bail if the victim is a minor. The government has also decided implementation of a series of measures including new fast-track courts to try rape cases.

Gang rape was declared as a separate offence punishable under Sec. 376D after the Nirbhaya rape case in the Criminal Law (Amendment) Act, 2013 while the Criminal Law (Amendment) Ordinance, 2018 came up after the inhumane Kathua rape case that shook the country. This shows that how much do the laws of the country lag behind. Waiting for such barbaric incidents to happen and then criminalizing them is quite an imprudent thing to do. Tracing back to these major events, the country would not be able to bear the shock of another such tragedy happening in case of marital rape. Its high time that marital rape should be criminalized in the country before another Nirbhaya or Aasifa is made to become a toy for all those pleasure-seeking monsters out there.

Marital rape is something, which doesn’t find mention in any of these ordinances despite the fact that it is so prevalent in India that according to a 2018 National Family Health Survey, more than 80 percent of married women who have experienced sexual violence, named their current spouse as the perpetrator.

The apex court in the case of Maharashtra v. Madhukar Narayan Mandikar had referred to the right of privacy over one's body. In this case, it was decided that a prostitute had the right to refuse sexual intercourse. What is sad to know is that all stranger rapes have been criminalized and all females, other than wives, have been given the right to privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse.

It is pertinent to note that the path towards criminalization of marital rape is not an easy one and there are innumerable challenges faced by the legislators in this regard. Since marriage is a very personal affair, such criminalization often clashes with the right to privacy of individuals. In such cases, it is also very difficult to prove the offence as it is a personal affair of the husband and the wife. Another challenge that would come across if marital rape is criminalized is the misuse of law, many women would file baseless cases on their husbands and such innocent husbands have to then face the music. But, such challenges should not come in the way of criminalization of the offence because offenders of such a heinous offence cannot be let scot-free.

Another irony regarding marital rape is that the term itself is not correct. If it is used as “marital rape” then it should be punishable because rape is an offence. If not punishable in the same manner as rape is, it should rather be called as “sexual assault” as suggested by the 172nd Law Commission Report.

It is yet again saddening to note that in India rape can be committed only against women and men are not protected under its ambit. Marital rape is also always talked in terms of men committing it against women and not vice-versa. Such orthodox thinking must be changed and even men should be protected under the ambit of rape because rape can be committed against them too.

In conclusion, it can be said that there is a dire need to amend Sec. 375 and remove the exception thereby; criminalizing marital rape and thus helping the victims achieve justice. It is a fact that patriarchy prevails in the Indian society and there exist discriminatory social norms and customs. There is a need for a major change in the outlook and perspective of the citizens. Judicial initiation is one thing, apart from that general awareness must be spread among people about this heinous offence. The law should not in any circumstances encourage forced cohabitation and should not protect a raping partner.

The solution does not lie in refusing to amend the law because of fear of its misuse but instead an effective implementation of the law. The wheat should be separated from the chaff, i.e., genuine cases of marital rape should be separated from the frivolous ones and the police should investigate the matters with due diligence.

The married couples of the country cannot be left in the hands of raping partners. They should be given due protection against their oppressors both inside and outside the marriage.

Author: Navin Kumar Jaggi

Co-Author: Amisha Raghuvanshi


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