On
Criminalising Marital Rape in India
Anuleena Bhattacharjee
and Belayet Hussain Mazumder
Abstract
The
unprecedented silence that shrouds the issue of marital rape is a reflection of
India being out and out a typically gender-biased patriarchal society, where
male chauvinism still reigns supreme. In India, where thousands of women remain
afflicted with unbearable atrocities within the four walls of their house,
marital rape is another shameful chapter in the saga of suffering of women, an
issue which has remained grossly neglected owing to the utter patriarchal
mindset of the society, which fails to recognise rape within the bonds of
marriage. As a result, married women in India, excepting in certain
rigid conditions, are deprived of protecting their body and soul from
being abused and exploited from men only for the sheer fact that they happen to
be their husbands, or their ‘masters’
who have an exclusive right over their ‘property’. The following paper thus
hereby attempts to explore into this crucial socio-legal issue with special
reference to the need of criminalisation of marital rape in India, as early as
possible, for the sake of human dignity and in the interest of justice.
Keywords: Marital rape, Violence, Criminalisation, Legal scenario.
1.1 Introduction
Women in India, since time immemorial, have been
virtually perceived as becoming the ‘exclusive property’ of their husbands on
entering the sacrosanct institution of marriage. Unfortunately, for many women,
marriage becomes an institution which literally binds them with an
irretrievable duty to satiate the unquenchable lust of their husbands, and
grants the latter with a licence to rape their wives, without their consent, at
any point of time. Although time has changed and radical changes have been
brought especially in the wake of feminist movement across the globe, however
little changes have been brought to the fate of married women in India who are
left to languish helplessly if raped by their husbands, excepting the
circumstances when a wife is below fifteen years of age or if she is living in
judicial separation from her husband- the only cases where a wife can
criminally prosecute her husband for rape. It implies that in absence of these
exceptional circumstances, a woman has no right to punish a man who injures her
body or soul only for the fact that he is her husband which debars him from
being a rapist. This hence amounts to a blatant violation of all known canons
of human rights when marriage, which is supposed to confer equal rights on both
the parties to it, becomes a shield in the hands of men to subjugate women and women
lose all rights to protect their self-dignity owing to the absolute immunity enjoyed
by their husbands for raping them.
1.2 Understanding Marital Rape and its Devastating
Consequences
Rape is the violation with violence of the private
person of a woman, an outrage by all means.
However, when rape is committed by a husband upon his own wife, it is seldom
treated as a offence for a wife is more or less treated as the husband’s
property, and the decision making as to what to do with his ‘property’ is the
husband’s sole prerogative. This unfortunately has been the prevailing social
norm in most of the societies throughout history and therefore even in
contemporary times, marital rape
despite being a grossly pervasive phenomenon remains one of the least reported
crimes. This is due to the fact that sexual transgression within the bonds of
marriage is perceived to be socially sanctioned and hence it is more often
treated as less severe crime than when a woman is raped by a stranger. However
on pondering seriously and sensibly over the issue, marital rape is found to be
as invasive and disastrous like other forms of rape and if considered from a
psychological standpoint, it appears to be much more dangerous than the former
having potentially devastating long term effects. The logic behind this
argument lies in the fact that in cases of stranger rape, the woman is outraged
of her dignity only once, while in cases of marital rape, a woman is subjected
to sexual torment more frequently, often everyday when a woman is compelled to
submit her person forcibly without her consent or will, and often meted out
with ruthless physical violence that accompanies the sexual act. A majority of
married women are subjected to ‘battering
rape’ in which women are physically battered and violently tortured by
their husbands during the sexual act which they employ to coerce their wives.
If not battered, substantial degree of force is used to coerce wives for sexual
gratification which is often termed as ‘force-only
rape’ – another category of marital rape where women are frequently
assaulted by their spouses in cases of refusal to submit themselves. Women are
also believed to undergo traumatic experiences of ‘obsessive rape’, where rape is a sadistic obsession of men where
they find pleasure to sexually dominate their wives and their aggression is
often complemented by perverse sexual
acts which are both violent as well as demeaning in nature.
The violence
associated with marital rape often leads women to suffer from severe physical
injuries as well as gynaecological complications such as miscarriage and
stillbirths. Unwanted pregnancies and contraction of diseases including STDs
and AIDS are also a part of the atrocities that afflict them. Besides, the psychological trauma and
emotional disorder that results from episodes of marital rape, often shatters
the self-confidence of victims who find it unacceptable to be treated
inhumanely by persons from whom women seek love, care and support. The
instances of marital rape often leaves an unhealed scar in their memories of
women owing to which women suffer from stress, depression, anxiety, post
traumatic behavioural orders and sexual dysfunction. Victims lose all hope,
faith and confidence being caught in a relationship which imposes an obligation
upon her to endure all agonies with unquestioned obedience. The plight of
victims is further enhanced when the law, like in India, maintains an
unprecedented silence over the issue and does not empower women with effective
remedy or relief to rebuke the man who pathetically tortures and dominates her
without showing any mercy.
1.3 Status of
Criminalisation of Marital Rape across the Globe with special reference to
India
1.3.1 Initial
Tolerance to the Phenomenon
Recognition of marital rape is a recent development in
law which gathered momentum only in late 70’s. Prior to that, spousal exemption
in rape was the prevalent assumption which was based on the ‘implied consent theory’ propounded by
English Judge, Sir Matthew Hale during
the 1600s, who pronounced:
"A husband
cannot be guilty of rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract the wife hath given up herself in
this kind unto her husband, which she cannot retract.”
This theory of Common Law which lied on the principle of
irrevocable consent of a wife to submit to the sexual demands of her husband
when once entered into the contract of marriage justified the marital rape
exemption and this infact became an accepted notion in law for decades owing to
which husbands could not be accused in courts of law of raping their wives and
robbing of their self-dignity.
In the case of R v. Kowalski,
the Court of Appeal in the United Kingdom held that a man can be found guilty
of indecent assault but in no way shall be guilty of raping his own wife
because of the implied consent to sexual intercourse given by the wife which
she cannot revoke during the subsistence of marriage. Again in R v.
Miller, Justice Lynskey ruled that a petition
for divorce did not revoke the implied consent to sexual intercourse and during
the continuance of proceedings too, a man cannot be held guilty of his own
wife.The deep rooted biasness operating in favour of the superiority of a man over
his wife found expression in Scottish Criminal Law too which strictly
maintained that rape within marriage is no rape as marriage. Similar contention
was reiterated by the Courts of law in the United States as well which highly
drew inspiration from the Common Law doctrine of implied consent.
1.3.2 Radical
Changes in Attitude and Paradigm Shift in Law
The legality and rationale for marital rape exemptions
became a subject of vehement criticism with the change in societal and legal
attitudes in the late 19th and early 20th centuries
realising the fact that married women are effectively denied protection of law
from marital violence due to the fallacious and age old doctrine of Common Law
which enabled men to oppress women in the private sphere and hence unduly
sheltered male chauvinism in the society.The simple fact was significantly realised that a married
should not be left without the full protection thatthe law affords otherwise to
unmarried women who are raped.
More particularly, it was realised by the Judiciary that
it was high time to liberalise women from the shackles of bondage and therefore
the House of Lords in England, the country being the one which laid the
foundations of marital rape exemptions, denounced the implied consent theory
and criminalised marital rape in the historic case of R v. R.
in 1991 where the five Law Lords unanimously held that ‘a husband’s immunity from the charge of raping his wife no longer
formed part of the English law’.
It was noted that in the light of changing social, economic and cultural
developments, a husband and wife were now regarded as equal partners in
marriage and therefore it could not be any longer maintained that by marriage a
wife submits herself irrevocably to sexual intercourse in all circumstances.
In the words of Lord
Keith, “Marriage was in modern times regarded as a partnership of equals and no
longer one in which the wife was to be the subservient chattel of the
husband".
This judgement was subsequently affirmed by the European
Court of Human Rights in the decision of SW v. United Kingdomand
served as precedentin courts of law in Scotland, Southern Ireland, New Zealand,
Canada, Israel, France, Sweden, Denmark, Norway, The Soviet Union, Poland,
Czechoslovakia, United States and Australia.
The U.S Court supported this revolutionary development
in the case of People v. Liberta,
where it was held that ‘the bodily
integrity of the wife must outweigh the husband’s right of marital privacy’.
Similarly, the U.S Supreme Court in Trammel v. U.S.A
reinforced the necessity of abolishing the marital rape exemption with changing
times stating that, “nowhere in modern
society is a woman regarded as chattel or demeaned by denial of a separate
legal identity and the dignity associated with recognition as a whole human
being”.
Besides the paradigm changes in judicial response to
marital rape, statutory recognition to marital rape as a criminal offence was
offered in various countries. Thefirst State to
abolish the marital rape exemption has been Nebraska in 1976, and North
Carolina being the last in 1993. Subsequent to the judgement of R v.
R.
in 1991, the Criminal Justice and Public
Order Act, 1994 has been enacted in England which abolished the marital
rape exemption altogether.
Another example can be cited of Maine, which completely excluded the spousal
exemption in rape.The
law in Pennsylvania, which formerly regarded marital rape as a lesser grave
crime than stranger rape, has been repealed to equate marital rape on the same
footing with stranger rape so as to establish that rape by one’s spouse is as
heinous a crime as when committed by a stranger.
The law in NorthCarolina also has made it clear that sexual offences by
spousesshould be treated the same as sexual offences by strangers, and it
explicitly states, “A person may be
prosecuted under this Article whether or not the victim is the person’s legal
spouse at the time of the commission of the alleged rape or sexual offence.”Again,
the law in the District of Columbia also reaffirms the similar proposition when
it states that, “No actor is immune from
prosecution under any section of this subchapter because of marriage or
cohabitation with the victims.”
1.3.3 Unsatisfactory Legal Provisions
However, apart from these positive
developments, it is unfortunate to note that there are many States in which
either spousal exemption from the offence of rape is totally retained by law or
the law is coupled with certain conditions for accusing husbands as rapists due
to which the offenders are seldom prosecuted.
For example, in Washington, a spouse
cannot be charged with third degree rape.
In the State of Tennessee in U.S, the law imposes a condition precedent that a
person can be accused of rape or sexual battery of a spouse (i.e. sexual
penetration without consent) only when the person is armed with a weapon or
credible decoy, and causes serious bodily injury to the victim, or when the
spouses live apart and one of them has filed for a divorce or separation.
Similarly, the law in the State of Maryland in U.S mandates that a spouse may
only be prosecuted for rape if force or threat of force is used, or if at the
time of the alleged crime they lived apart (under a written separation
agreement or for at least three months before the offence) or under the decree
of limited divorce.
In Mississippi too, the perpetrator is not guilty of sexual battery under the
law of the State if ‘the alleged victim is that person’s legal spouse and at
the time of the alleged offence such person and the alleged victim are not
separated and living apart, except in certain circumstances’.
Again in the State of Ohio, the offence of rape by the use of a drug or
intoxicant that impairs the victim’s ability to resist only applies to a spouse
who is living apart from the victim.
Criminalisation of marital rape
hence remains an unaccomplished task under many statutes and therefore has a
long way to go. It is however much more distressing to note that even in those
countries where the issue has been addressed by law, marital rape still remains
one of the most under-reported crimes and continues to be socially perceived as
a tolerable form of violence which women are expected to endure or ignore.
1.3.4 Position in India- Legislative Apathy to Marital Rape:
So far as Indian law on marital rape
is concerned, it can be said that the criminal law takes a very narrow approach
in addressing the issue, and marital rape is more often viewed as a form of
non-criminal domestic violence in India, and not generally as a distinct sexual
offence in all cases. The Indian Penal Code (IPC), 1860 recognises marital rape
to a limited extent in Section 375, the exception to which states that sexual intercourse by man
with his own wife, the wife not being under 15 years of age, is not rape. This
age has been now proposed to be raised to 16 years which ironically still
remains below the legal age for marriage in India. Whatsoever, it is to be
noted that the Penal Code in India makes a man guilty of raping his minor wife
and not otherwise. The only situation other than this where a man can be held
guilty of raping his wife is contemplated in Section 376-Awhich makes any form
of sexual intercourse between a judicially separated couple without the consent
of the wife punishable with imprisonment for a term which may extend to two
years as well as with fine. It therefore follows that any married women in
India not below the above specified age and not living apart from her husband
has no power to punish her husband for the degrading and inhumane sexual
torture meted towards her; she can at best seek divorce from him on the ground
of cruelty or have recourse to Section 498-A of IPC dealing with cruelty,
provided she can prove the fact of ‘perverse sexual conduct by the husband’,
which often appears to be something too difficult to establish or correctly
interpret.
Surprisingly,
like the legislature, the Judiciary in India which has otherwise been playing a
pro-active role in securing social justice in India has not been that sensitive
enough in cases of marital rape as it should have been and has not been very
effective in alleviating the miseries of married victims. For example, in Queen Empress v. H.M Mythee,
the court defended the marital rape exemption on the ground that it aims at the
preservation of family. This proposition is grossly illogical and fallacious
and reflects the orthodox patriarchal mindset prevalent in India. Further in
recent cases of Bodhisattva Gautam v. Shubra Chakrabortyand
Sakshi
v. Union of India,
the Supreme Court failed to recognise marital rape as a separate criminal
offence and refused to criminalise the same.
It is hence
pathetic to note that in a country which casts a fundamental duty upon citizens
to denounce derogatory practices against women and where every person is
assured of protection of his life and personal liberty, wherein right to life is
interpreted to denote right to live with human dignity, women are left in a deplorable
condition to without the right of representation or the right to redress
grievances against their wrongdoer just because they happen to be their
husbands.
1.4 Need of Reforming the Stagnant Laws in India-
High Time to Change
In a country like
India, where women have remained a subject of discrimination and persecution
for ages and the low socio-economic status accorded to them through structural
factors makes them remain a ever vulnerable class, a refreshing change in the
attitude of lawmakers is a dire necessity to assure a woman of her right to
dignity, her right to a self identity within the bonds of marriage, for
marriage is not the tool of depriving a woman of her basic human rights and
fundamental freedoms.
The recent deliberation
made by the law makers of our country that marital rape ought not to be
criminalised for it is capable of destroying the sanctity of marriage is
entirely erroneous. This is because marriage is a bond of love and trust which
forms the basis of its purity and in a marriage where dominance, violence and
sadism reigns supreme, the sanctity of marriage is already lost. It is
therefore not the sanctity of marriage which is sought to be protected but the
perverted offenders who are sheltered under the veil of marital relationship.
Also there is need to correctly interpret the implied consent theory which does
not preclude a woman to resist at reasonable times from having unwanted sexual
intercourse. Sex is a part of marriage no doubt but forced cohabitation is
definitely not the sole obligation of a wife to perform as per the whims and
fancies of her husband who tends to dominate her physically, emotionally or
sexually.
The legislators
have further opined that criminalisation of marital rape might increase
instances of false and fabricated claims against innocent husbands in India.
This approach is however untenable, both logically and legally. It is illogical
to say that laws should not be made because someone might be at risk of a
fabricated claim. If this was so, no law pertaining to the protection of any
specific class would have ever been enacted in the country. And legally
speaking, when it is already difficult to prove a claim of rape, it would be
much tougher to prove a fabricated claim of rape against someone beyond
reasonable doubt. Besides, taking into consideration the societal norms of our
country, it can be further inferred that accusing one’s husband of rape and
dragging him into court is one of the least possibilities for an Indian woman
to do, who values her family reputation more than her life and worships her
husband like deity, and unless she is compelled by unbearable circumstances, no
woman would take such stringent action. Weird though it may sound, but this is
the stark reality of Indian women who are genuinely an embodiment of tolerance
which often leads them to compromise with their liberty and dignity throughout
their lives. The absence of legal provision to this effect would hence add to
the misery of women, who would find no assistance or remedy of law even if they
dare to stand up against all atrocities, defying the societal and cultural
norms. Hence not enacting a law in fear of possibility of fabricated and
malicious claims is definitely not the solution.
Further, it is
high time that the Indian Judiciary should take positive concrete steps in
regard for unless women are protected within the bonds of marriage, right to
equality enshrined in Article 14 of the Indian
Constitution would have no meaning. Article 21 of the Constitution which
guarantees every woman a fundamental right to life and personal liberty, would
become a sheer mockery, unless interpreted as to include her right to bodily
integrity at all times, irrespective of marital status. The Judiciary being the custodian of
fundamental rights of all citizens has an inherent duty to secure justice to
the fairer sex ensuring that no man has a licence to rape his wife, just
because she might be fed and clothed by him through his earnings. The task is
not difficult for it is the same institution which has once mandated that even
a woman of easy virtue has a right of privacy and no person has a right to
violate her person. The only essential
requirement is that the Judiciary is to rise above any sort of prejudice which
may cripple it and shed off any patriarchal biasness for the greater cause of
justice to thousands of married women in India, whose miseries often go
unheard, unwept and unsung.
1.5 Conclusion
It can be hence
be concluded that marital rape is definitely one of the burning social issues
that needs to be criminalised for securing the interests of married women who
do not deserve to be left alone in their crusade against injustice. It is
insufficient for law to think about affording security to women only against outsiders
when they are at risk at the hands of persons who are most close to them.
Marital privacy definitely deserves to be secured but that should not outweigh
the interest of women. Removing the spousal exemption from rape, irrespective
of any age-factor for consent, is a positive step that is looked forward
to. Also criminalising marital rape
would become a deterrent to prospective husbands who would think twice before
subjecting their wives to sexual slavery and exploiting her sexuality. A change
in the attitude of the civil society is equally pertinent to shed off all
stereotype notions that a woman becomes a husband’s private property on
marriage and that she is bound to tolerate all physical or emotional abuses. It
is time to end the preconceived notion of the Indian society, that marriage is
a licence to rape. Rape is rape, a violent and distorted expression of male
aggression which deserves to be punished when committed by any person
whosoever; for a woman has a identity of her own, she has a primary right over
her body or soul which never loses its individuality. Marital status in this
context is completely immaterial.
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Commonwealth
v. Patrick Fogarty & others, 74 Mass. 489 (Massachusetts 1857) (In Fogarty, the counsel cited 1
Hale P.C. 629. Archb. Crim. Pl. (Waterman’s ed.) 306, note. 1 Russell on
Crimes, 676, that a man cannot commit a rape on his own wife.).
Hasday, Jill Elaine Contest and Consent: A
Legal History of Marital Rape. 88 Calif. L. Rev. 1373, 2000.
Connerton, Kelly C. ‘The Resurgence of the Marital Rape Exemption: The Victimization of
Teens by Their Statutory Rapists’. 61 Alb. L. Rev. 237, 1997.
