Amberyna
Shilpkar
Student researcher,Galgotias University
ABSTRACT
Marital rape is a serious yet
unheard offence. The walls of the house, the doors of that room are the
evidence of how deep, brutal and inhumane crime is being committed and the
victim has to remain silent only because of the social stigma and her husband uses
his superior position to breach her trust and individual integrity. Marital
rape is a serious and often insidious form of violence against women with
potentially devastating long term physical and emotional effects.
In India, marriage is considered a sacred
union hence the term attached ‘rape’
with marital is dissolving its sacred sense. Marital rape is just as heinous as
a rape, being married to a husband who rapes you every night is a daily terror,
a ritual that had to be done every night without her approval. There is a
immediate reason to change the prevailing laws in India which can give the
victim the answer that married woman have the right to approach the legal
system. With new generation coming, the archaic law should be changed and by
criminalizing spousal rape one does more than punish rapists, it protects women
in abusive relationship as well.
Keywords:
Marital,
Criminalizing, spousal, India, Integrity.
INTRODUCTION
The word ‘rape’ has been derived
from the term ‘rapio’, which means ‘to seize’. Rape is therefore, forcible
seizure, or the ravishment of a woman without her consent, by force, fear or
fraud. It involves coercive, non consensual sexual intercourse with a woman.
Rape can be viewed as an act of violence of the private person of a woman, an
outrage by all means. It is the ultimate violation of the self esteem of a
woman. The Supreme Court of India has aptly described it as ‘deathless shame
and the gravest crime against human dignity’[1].
Rape is not merely a physical assault, but is destructive of the whole persona
of the victim. The law did not conceptualize it as an offence against the
person of the woman, one that destroys her freedom; rather, it conceived rape
as an instrument for protecting a man’s property from the sexual aggressions of
other men. Therefore the act of rape within marriage was not recognized as an
offence as woman was considered the property of the husband, and a man could
not be perceived to violate his own property. Marital rape is
particularly complicated because the complex, personal nature of marital
relationships makes it hard for the victim to even see herself as a victim, which
is why Marital Rape is one of the highly under-reported violent crimes. Even
the women who do consider themselves victims are disinclined to approach the
authorities because they are financially dependent upon their husbands, and
reporting the matter could very well result in withdrawal of financial support
leaving them and their children without food and shelter.
Robin Morgan defines rape as “rape exists any
time sexual intercourse occurs when it has not been initiated by the woman, out
of her own genuine affection and desire.” Rape is not the worst thing that can happen to a
woman, as rape was in the past seen as such a terrible crime because it was
about tainted male honor. A raped woman would be defiled, a source of shame to
fathers, husbands and brothers; the deed was done and could not be undone.
Now rape is again seen as a matter
of permanent defilement. Women never get over rape; we are told that they are
scarred for life. Rape cases are a law unto themselves - the woman’s name is
kept secret, she is allowed to testify via a video link - set apart from other
crimes. Everything reinforces the notion that this is a uniquely devastating
and shameful crime. This forces the victim not to carry on the life as one
wanted, the society and our law never lets the victim forget the terrible
incident.
Today there are various countries that have
criminalized spousal rape or have laws that do not distinguish between marital
rape and ordinary rape. These countries include: Albania, Algeria, Australia,
Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy,
Japan, Mauritania, New Zealand, Norway, the Philippines, Scotland, South
Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States, and
recently, Indonesia.
Thailand outlawed marital rape in
2007[4].
LAW
AGAINST RAPE IN INDIA
“Rape of women
by men has occurred throughout recorded history and across cultures and
religions. It is a crime
against
basic human right and a most common crime against women in India.”[5]
The
history of Rape laws in India begins with the enactment of the Indian Penal
Code (IPC) in 1860 (45 of 1860) covered under Section 375 and 376. According to
the original provision as in Section 375, a man is said to have committed rape
who, except in the case hereinafter accepted, has sexual intercourse with a
woman under circumstances falling under any of the five following descriptions:
(1) Against her will,
(2) Without her consent,
(3)
With her consent, when her consent has been
Obtained
by putting her in fear of death or of hurt,
(4) With her consent when the man knows that
he is not her husband, and her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married, and
(5) With or without her consent when she is
under 16 years of age.
This
definition explains that penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape. It gives an exception that sexual
intercourse
By a
man with his wife, the wife not being under 15 years of age will not constitute
rape.
Section
376 provides punishment for rape. According to this Section, whoever commits
rape shall be punished with imprisonment for life, or with imprisonment of
either
description for a term, which may extend 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 or with fine or with both.
AMENDMENTS
The
rape law under IPC had gone through a lot of amendments[6].
In 1983, amendment was made and Section 376 (2), that is, Custodial Rape,
Section 376 (A), that is, Marital Rape, and Section 376 (B to D), that is,
Sexual Intercourse not amounting to rape were added. As per the Criminal Law
Amendment Act (1983), revealing the identity of a rape victim is an offence.
Though this Act maintains more or less the same definition of rape, it
introduces many new categories of offence of sexual intercourse by persons in
custodial situation such as superintendents of hospitals, remand homes,
prisons, and police officials with women in their custody. In cases of
custodial rape, burden of proof lies with men and if a woman victim makes a
statement that she did not consent, the court would believe that she did not
consent. Sexual intercourse by a man with his wife, who is living separately
from him under a decree of separation or under any custom or usage without her
consent, is punishable with imprisonment, which may extend to 2 years. This
offence is cognizable and bailable[7].
The Supreme Court verdict of 2012[8] says
that the rape trials must end within 2 months as stipulated under law. The
Supreme Court also directed trial courts to "strictly
adhere" to existing norms while asking them to rule out the possibility of
"maneuvering" through undue long adjournments. Section 309 of the
Criminal
Procedure
Code (CrPC) provides that in every inquiry or trial the proceedings should be
held as expeditiously as possible and once the examination of witnesses begins
the same shall be continued on a day today basis till all the witnesses are
examined. In cases that come under Section 376 (rape) and related offences
under Sections 376 A to D of the IPC, the CrPC stipulates that "the
inquiry or trial shall, as far as possible, be completed within a period of 2
months from the date of commencement of the examination of witnesses." The
victim of rape suffers mental and psychological trauma, which must be addressed
to provide a helping hand to
Enable
her to cope with the trauma suffered and to tide over her immediate and long term
needs so that she is able to lead a dignified and meaningful life. The
provision of rape laws in the IPC (Section 375 and 376, IPC), echoes very
archaic sentiments, when it mentions as its exception clause "Sexual intercourse by man with his own wife, the wife not
being under 15 years of age, is not rape." Law
bestows an absolute immunity on the husband in respect of his wife, solely on
the basis of the marital relation. It is a nonconsensual act of violent perversion
by a husband against the wife where she is physically and sexually abused.
Marital rape is far too common in Indian society. The UN Population Fund[9] states
that more than two third of married women in India, aged 1549 have been beaten,
raped, or forced to provide sex.
LAW COMMISSION REPORT
There
are four major law commission reports[10]that
address the law on rape while two reports recommend on the IPC in general
within which the provision of rape is discussed, the other two reports
exclusively deal with reforms related to rape. These are as follows:
1.
42nd Law Commission Report
2.
84th Law Commission Report
3.
156th Law Commission Report
4.
172nd Law Commission Report.
Each
successive Report is an improvement over the prior one addressing the issue;
however, many useful recommendations have not found their way into the Bills
presented to Parliament. The 172nd Law Commission Report had made
the following recommendations for substantial change in the law with regard to
rape.
1.
Rape should be replaced by the term 'sexual assault'.
2.
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.
3.
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’.
4.
Rape laws should be made gender neutral as custodial rape of young boys has
been neglected by law.
5. 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 Domestic
Violence Act, 2005 (DVA)[11]provides
civil remedies to what the Section 498A of IPC provision of cruelty already
gave criminal remedies, while keeping the status of the matter of marital rape
in continuing disregard. Though Section 498A deals with cruelty, to protect
women against perverse sexual conduct by the husband, there is no 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? These are some of the questions
need to be answered. [33] Section
3 of
the DVA, among 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 an individual status, where
she does not need to concede to every physical overture even though it is only
her husband.
IDEA
OF MARITAL RAPE
Roots
of 'marital rape' can be traced in the statement of Sir Mathew Hale, England's
chief justice during the 1600s, "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."
The
revolution against marital rape began 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. The importance of consent for every
individual decision cannot be overemphasized. A woman can protect her right to
life and liberty, as well as her body even within the wedlock. As a result most
of the Western countries have declared marital rape unlawful.
The
Section 376 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 and 15 years, an offence is
committed, however, less serious, attracting milder punishment. Once, the age
crosses the permissible limit there is no legal protection accorded to the
wife, in direct contravention of human rights regulations.
The
definition of rape (Section 375 IPC) has been criticized for other reasons as
well by the 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 as the "sexual penetration, not just penile penetration, but also threatening,
forceful, coercive use of force against
the victim, or the penetration by any object, however slight."
In 1869,
John Stuart Mile observed that marital rape is never welcome to women for it
represents a surrender of dignity so absolute in nature, that it lowers the
stature of the wife beneath that of a slave. The basic premise fir this
assumption lies in the fiction that the wife is considered to have given her
irrevocable consent to sexual intercourse at the time. Article 2 of the
declaration of the elimination of Violence against women includes marital rape
explicitly in the definition violence against the victim and not the criminal
the benefit of doubt.
Statistics of Marital Rape
In 2010,
figures released by the Medical Research Council showed that 18.8 % of South African women admitted to
being subjected to marital/partner rape. Similarly, 18.2 % of men who were
studies admitted to forcing their current or ex partners/wives to have sex when
they refused. A similar study by the Council showed sexual violence by an
intimate partner was only reported by 2.1 % of women experiencing this form of
violence. South Africa only criminalized marital
rape in 1993. But even in countries where it has been made illegal, laws are
not always reinforced by communities, for example: Nepal passed a law in 2006,
making marital rape a criminal offense. Yet, the World Health Organization
found in 2007, that in practice, this law is not enforced strictly, owing to a
lack of support for it by law enforcement agencies, as well as the prevalence
of victim-blaming.[12]
In 2013, a United Nations survey found that nearly a quarter of 10,000
men questioned in six Asia-Pacific countries including India, admitting to
having rape a female partner. The belief that they are entitled to have sex
even without their partner’s consent is a common motivation, the study found.
Majority of these men experienced no legal consequences. “This study reaffirms that violence against women is
preventable, not inevitable” says James Lang, Programme Coordinator, Partners for
Prevention. “Prevention is crucial
because of the high prevalence of men’s use of violence found across the study
sites and it is achievable because the majority of the factors associated with
men’s use of violence can be changed.”
Regarding rape, the study found that in the sites where the survey was
conducted:
·
Of
those men who had admitted to rape, the vast majority (72-97 percent in most
sites) did not experience any legal consequences, confirming that impunity
remains a serious issue in the region.
·
Across
all sites, the most common motivation that men cited for rape was related to
sexual entitlement - a belief that men have a right to sex with women
regardless of consent. Over 80 percent of men who admitted to rape in sites in
rural Bangladesh and China gave this response.
The study’s findings reaffirm that violence against
women is an expression of women’s subordination and inequality in the private
and public spheres. The findings show how men’s use of violence against women
is associated with men’s personal histories and practices, within a broader
context of structural inequalities.[13]
For the average Indian man, masculinity is about “Acting tough, freely exercising his privilege to lay down the rules in
personal relationship and above all controlling women.[14]”the study found
that 60% of men admit their wifes to have sex by using violence.
Efforts
towards bringing Change
Various incidents happen to women that they cannot share with anyone and
remain silent, there are certain cases
that are so henious that women have to be admitted in hospitals. Doctors know that
this is the case of marital rape yet no FIR in lodged against the husband
because no such parameters are given in our law.
In 2013, a article was published[15]
in a newspaper which had and interview with a lawyer named Manisha Tulpule she
said “There is a pattern
to the silence: women stay quiet about the assault when young, but are willing
to report it at a later stage. Recalling a particularly gruesome case where a
man administered electric shocks to his wife’s vagina, lawyer Manisha Tulpule,
who handles cases of domestic violence and family matters, said the woman
complained after enduring 25 years of this: “The woman was over 50 when she complained.”
Ms. Tulpule said that in many cases, women are in their forties when they speak
out.
In 2013, a panel of lawmakers told parliament
that the move “has the potential of destroying the
institution of marriage.” Home
Affairs Minister Haribhai Chaudhary said[16]
in April that “the concept of marital rape, as understood
internationally, cannot be suitably applied in the Indian context due to various factors, including illiteracy, poverty, social custom,
religion and the widespread perception that “marriages are sacrosanct the
Indian government, would not be considering any amendment to its laws regarding
marital rape despite a United Nations recommendation to do.”
It does not take literacy or wealth to
recognize that rape is wrong[17]
nor is this problem restricted to poor communities. In fact, no social custom
or religious belief permits rape. “For a large part of society, marriage is not
a romantic, egalitarian partnership entered into by choice, but an
understanding between two families promising economic and social security to a
woman in exchange for sexual availability and fidelity, housekeeping and child
birth and care,” Supreme Court advocate Sood
said. “The issue of non consensual sex is often not even seen as a valid issue
then, as marriage is viewed as irrevocable consent for life.” This view that
wives are duty-bound to have sex with their husbands is, in fact, codified in
law.
In 2012, a high court in the southwest Indian
state of Karnataka ruled that a woman denying sex to her husband without
a specific reason is a form of “cruelty.” The Supreme Court made a similar ruling last year.
In other words, while “a woman can’t accuse
her husband of rape,” the husband “can legally take her to court for saying no
to sex,” said the Nalsar University of Law’s Mustafa. “Marital rape is legal,
[but] a woman saying no too often is not.”
A 27-year-old woman last week, who,
after being abused, beaten, and raped by her husband in their first year of
marriage, petitioned the courts to change the archaic law. “Every night was a nightmare. I used to get jitters before
going into my room at night. I would dread the thought of what was awaiting me.
What happened in our bedroom every night was not what normally happens between
a husband and wife. I felt like he had bought me. I was treated like a sex
slave, like a sex toy. He would insert things inside me, slap me, and bite me”.she told the
Hindu.
“It was the 14th of
February 2014, and it was his birthday. I had baked a cake. What he did to me
that night is a disgrace to the institution of marriage. He hit me 17 to 18
times with a box and with a [flashlight], after which he inserted [the
flashlight] into my vagina. I started bleeding but instead of taking me to the
hospital he took me to my in-laws’ house and locked me up until late evening.
When the bleeding didn’t stop, my in-laws took me to the hospital. I was in a
semi-conscious state and had to be taken in an ambulance. My legs and my entire
body had swollen up. I was bleeding profusely. I bled for 60 long days. After almost a year of trying to get justice in lower
courts, the woman—who is not being identified because Indian law forbids
revealing the identity of sexual assault victims—with the help of lawyers from
the New Delhi-based Human Rights Law Network (HRLN), a collective of lawyers
and human rights activists, approached the Supreme Court of India in February,
petitioning to declare marital rape a criminal offense.
“I’m not angry, but
I’m sad. I’m sad at the condition of the women in my country who face this, day
after day, night after night. If, as an educated and independent woman, I’m
struggling for justice, think about the many women who endure the pain and
torture in silence every day. Will there never be a law that upholds their
rights?” “I don’t understand the law. I’m a layman.
All I want to know is: Don’t married women have any right to approach the legal
system? Are they only meant to suffer, commit suicide or die?”
This is something serious and
demands an urgent need to change, this law can let women go before the court
after marriage and not feel powerless. If our law cannot provide them the help
they need it is worthless to their existence. Woman has and still continues to
be victimized by man and society. There is a need toacknowledge her as a human
being, to give her respect and the dignity she deserves.
[8] Supreme court norms on rape trial
not being followed strictly: Experts. The Economic Times. PTI Dec 30; 2012
[9]
The United
Nations Population Fund: Assault on the World's People, http ://www .cfam.org /docLib/2
0080624 _U NPF.pdfý [2008 Jun 24].
[11] The Protection of Women from
Domestic Violence Act 2005 (43 of 2005)
http://indiacode.nic.in/fullact1.asp?tfnm=200543
[12] Infographic: marital rape is
still legal in these 38 countries, http://www.w24.com/infographic.
[13] United Nations survey of 10,000
men in Aisa and the pacific, “why some men use violence against women and
girls”, (Sep 10,2013), http://www.unpd.org
[16]
Dominique Mosbergen, Huffintonpost, November 24,2015.
[17]
Minakshi Ganguly interview with huffintonpost.
