Marital Rape - An unaddressed stigma of Indian society
The article 'Marital rape - an unaddressed stigma of Indian society' by Animesh Nagvanshi deals comprehensively with the ill-treatment of women in Indian Society.
The article 'Marital Rape- An unaddressed stigma of Indian society' by Animesh Nagvanshi deals comprehensively with the ill-treatment of women in Indian Society. It deals with the definition of rape, current issues related to rape, and constitutional provisions for the wife's protection. The article further analyzes marital rape's current status around the world.
Introduction
Despite the fact that India celebrated its 75th year of independence, a woman in the country is still neglected and are not genuinely free and independent to act of their own will and carry out their normal day-to-day operations. The status of women in Indian society has been drastically downgraded day by day, leading to the ill-treatment of women in society. The woman plays an important role in the development of society, and their abuse or mistreatment hinders society's growth.
Definition of Rape
Rape is defined as a "Sexual activity that is illegal and typically involves having sex against one's will, against the threat of harm, with a minor, or with someone unable to give their permission voluntarily due to mental illness, mental disability, drunkenness, unconsciousness, or deceit. In layman's terms rape is forceful sex against a woman's body and against their will. Rape is an offence against a women's body that violates her dignity and self-respect and lowers the image of women to the position of an object primarily used for sexual desire or enjoyment.
Definition of Rape under the Indian Penal code
A man is said to commit rape if he does any of the following:
(a) enters his penis, to any degree, into a woman's vagina, mouth, urethra, or anus, or forces her to do so with him or another person; or
(b) forces any item or body part, other than the penis, into a woman's vagina, urethra, or anus, to any extent; or
d) puts his mouth to a woman's vagina, anus, or urethra or makes her do so with him or any other person, or
(e) manipulates any portion of a woman's body in such a way as to induce penetration into her vagina, urethra, anus, or any other part of her body,
under conditions matching any one of the following seven definitions:
Firstly, against her will.
Secondly, without her permission.
Thirdly, having her consent means after winning her approval by making her feel threatened or vulnerable, whether it's herself or someone she cares about.
Fourthly Having her permission, even if she is aware that he is not her husband and that she is only giving it because she mistakenly thinks that she is legally married to him or another guy.
Fifthly, with her permission if, at the time of providing such consent, due to mental instability, drunkenness, or the administration of any stupefying or unhealthy drug by him directly or via another, she is unable to comprehend the nature and effects of that which she provides consent to.
Sixthly, when she is less than eighteen years old, with or without her permission.
Seventhly, when she is unable to express permission.
Explanations under IPC
Explanation 1. The term "vagina" as used in this section includes the labia majora.
Explanation 2. When a woman expresses her willingness to engage in a certain sexual act by words, gestures, or any other verbal or nonverbal communication, she is expressing her unambiguous voluntary consent.
Exception under IPC
With the exception that a woman who does not physically resist the act of penetration should not be deemed as consenting to the sexual activity simply because of that fact.
1. An intervention or surgery for a medical condition does not qualify as rape.
2. The act of a man engaging in sexual activity with his own wife, provided that she is beyond the age of 15, is not rape.
How did the exemption regarding marital rape get included in the IPC?
British Colonial empire
- In India, the IPC was put into effect in 1860 during British colonial control.
- The marital rape exemption was once only applicable to women above the age of 10, but in 1940 that age was lifted to 15.
1847 Draft of Lord Macaulay
Amicus curiae (friend of the court) claimed in January 2022 that the IPC was based on Lord Macaulay's 1847 blueprint, who served as the head of the First Law Commission formed in colonial-era India. The draft's exemption eliminated all age restrictions on the decriminalization of marital rape.
Development of marital rape in the world
The first foreign nation to pass performs for marital rape was Australia in 1976 and after its many Scandinavian and European countries also recognised marital rape as an offence.
History of Marital Rape in India
Domestic Violence Act, 2005
It raises the possibility of marital rape through any type of sexual abuse in a live-in or marital relationship. It does, however, solely offer civil remedies. In India, victims of marital rape are unable to file a criminal complaint against their assailant.
Law Commission of India
While considering multiple recommendations to change India's laws on sexual assault, the Law Commission of India denied the necessity to abolish this provision for marital rape in 2000.
Justice JS Verma Committee
The Justice JS Verma Committee was given the responsibility of recommending changes to India's rape laws in 2012. While some of its ideas were implemented into the Criminal Law (Amendment) Act that was approved in 2013, others, such as the one regarding marital rape, were not.
Parliament
This subject has also been raised in Parliament. The notion of criminalizing marital rape was rejected in 2015 at a Parliamentary session with the argument that "marital rape cannot be applied in the country as marriage was viewed as a sacrament or sacrosanct in the Indian society."
Meaning of Marital Rape
Marital rape or spousal rape is any unwanted or undesired sexual acts by a spouse or ex-spouse committed without consent or obtained against a person's will by force, coercion, or threat of life. In India, marriage is considered as a sacred bond between two individuals for their joint pursuit of dharma, karma, and moksha.
The law of the nation also does not see or endorse this archaic view and refuses to acknowledge that marital rape is no less than rape defined under Section 375 of the Indian Penal Code. Historically also our society has found it very difficult to comprehend the concept of marital rape. Their belief is how is it rape if they are married in proper perception when couples in a marriage cohabit, there is no rape because there is implied or presumed matrimonial consent. In our country, there is an increase in the number of cases of marital rape and it is still not recognized in India it only exists as "de acrobat not de jure while in other countries either the legislature has criminalized marital rape or the judiciary has played an important or dominant role in recognizing marital rape as an offence.
Causes of Marital Rape
There are many causes for marital rape discussing the few and the most prime factor which are dominance, treating women as property, unemployed men, and sexual dissonance between the couple.
Indian society which is mainly a patriarchal society in which women is dependent on the husband for the day-to-day expense or for his livelihood cannot resist the man for marital rape and seek for divorce is also not an option as marital rape is not ground for divorce in Hindu Marriage Act 1955, Muslim Personal Law Application Act, 1937 and Special Marriages Act,1954.
Married women only have resources to civil remedies provided under the protection of women from the Domestic Violence Act, 2005. Indian society is foremost an orthodox society that believes that women should be kept within the four walls of the house which does not let women become financially independent and this becomes the root cause of marital rape or any kind of domestic violence.
Talking about the second factor which is women treated as the property of husbands, historically rape was seen as property (usually either a man's property or a father's). In this case, the property damage meant that the crime was not legally recognized as damage against the victim, but instead to her father or husband's property. Therefore, by definition, a husband could not rape his wife so a man could not be prosecuted for raping his wife, because she was his possession however if another man raped someone's wife this was essentially stealing property (a women's sexuality). This concept of women as property permeates current marital rape ideology and laws throughout India.
Talking about the third factor which is unemployed men, men who carry out marital rape have very low self-esteem and a person who is low self-esteem may not resort to forcing himself on his wife against her will for sexual pleasure. A prudent man will have enough dignity to either respect her will or seek sexual pleasure outside of that particular period.
Talking to the last factor which is sexual dissonance between the couple, the woman might have refused sexual intercourse for a variety of reasons including mensuration, stress, mood swings, or a physical injury but the husband does not want to lose his power of superiority on the women and forcefully intercourse with his wife.
Effects of Marital Rape
The women or wives who were subjected to marital rape have long-term implications on them. They suffer clinical depression after being forcefully raped by their own husband, their desire to live diminishes from time to time, they live under constant fear of rape which causes both psychological and physical effects on their body such as shocks, stress, suicidal tendencies, injury to private organs, torn muscle, fractures, etc. Women who are subjected to physical violence or rape suffer from other complications such as blackened eyes and wounds inflicted by any sort of weapon during sexual intercourse.
Constitutional Provisions
Constitutional rights given against marital rape under the Indian constitution are under Articles 14,15,19 and 21.
Article 14, the Indian constitution states "equality before the law", therefore Indian women should be treated equally under Article 14 and an individual human right should not be ignored by anyone, including by their spouse. Exception 2 of section 375 discriminates against married and unmarried women, which infringes the right to equality guaranteed under article 14. It also discriminates against equality before the law penalizing the rape of strangers and not criminalizing the husband who committed a similar crime.
Article 15 states "prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Discrimination is faced by married women on grounds of sex where they are not given the option of consent or will to get into a sexual relationship if they are not having the mood or desire to get into a physical relationship at that particular time.
Article 19(1)(a) states freedom of speech and expression to each and every citizen of India, if freedom is given to everyone then why it is curtailed for women in case of marital rape. The voice of women has equal rights as compared to men or unmarried girls. There are roughly 6500 languages that are spoken throughout the globe and the meaning of 'no 'is the same in all the languages. Despite the fact that the world is progressing each day toward modernization there are some social prejudices that still dominate our social paradigm. It's high time for society to stand for the voice of women at large.
Article 21 of the constitution talks about the "right to life and personal liberty. The article interpreted liberty by our Indian judiciary in numerous cases where it held the "Right to Live with Human Dignity in cases such as Maneka Gandhi v. Union of India[1], a case where the court held that the right to live is not a mere physical right but includes within its ambit the right to live with human dignity.
The court elaborating the view said the same judgment in the case of Francis Coralie v. Union Territory of Delhi[2], where it held that the right to live is not restricted to mere animal existence, it means something more than just physical survival. The right to 'live 'is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes the "right to live with human dignity, and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human beings.
In Suchita Srivastava v. Chandigarh Administration[3], the Supreme Court connected the right to sexual freedom with the rights to personal liberty, privacy, dignity, and physical integrity under Article 21 of the Constitution. In State of Karnataka v. Krishnappa[4], the Supreme Court ruled that sexual assault is an unlawful invasion of a woman's right to privacy and to the sanctity of her person. It was ruled in the same case that non-consensual sexual activity qualifies as both physical and sexual violence. The second sub-point which can be discussed under the ambit of Article 21 is the "Right to Sexual Privacy" which was discussed in the case of State of Maharashtra v. Madhukar Narayan[5]. The court held that every woman is entitled to her sexual privacy and it is not open to violate her privacy as and whenever he wished.
Current Status of Marital Rape in India
In India, domestic violence is a pervasive issue that has only become worse in recent years. The 'Crime in India' 2019 report from the National Crime Records Bureau (NCRB) estimates that domestic abuse affects over 70% of Indian women.
Marital rape is one example of this domestic violence. An unfair but frequent method of demeaning and undermining women is marital rape, which is the act of forcing your spouse to have sex without sufficient permission. Today, Marital rape has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized. The non-criminalization of marital rape in India undercuts the dignity and human rights of women, despite the fact that several legislative changes have been made to the criminal code for the protection of women.
The Current Issue concerning Marital Rape
The issue started when petitions were filed in Delhi High Court for criminalizing Marital Rape. The Delhi High court asks the central government regarding the criminalization of marital rape to which the central government says that criminalizing marital rape may disestablish the institution of marriage. In the year 2017, the Delhi High Court starts hearing the matter. In the year 2022, the Delhi High Court delivered a split decision, with one judge favouring the repeal of the law's provision protecting husbands from prosecution for extramarital sex with their wives while the other judge declined to declare it illegal. Nevertheless, both justices concurred to award the certificate of leave to appeal to the Supreme Court in this case since it includes important legal issues that call for the highest court's ruling. The matter will now be heard by the Supreme Court in February 2023.
Marital Rape around the world
According to data from Amnesty International, 77 out of 185 (42%) nations have laws that make marital rape a crime. In other countries rape laws either don't mention it or specifically omit it, both of which can result in sexual violence.
Conclusion
With the advent of separate and independent legal identities for husbands and wives under Indian law, the protection of women is a major focus of contemporary jurisprudence. Therefore, it is past due for the legislature to recognize this legal flaw and repeal Section 375 (Exception 2) of the IPC in order to bring marital rape inside the ambit of rape legislation.
References
1. AIR 1978 SC 597
2. 1986 SCR (2) 516
3. (2009) 9 SCC 1
4. AIR 2000 SC 1740
5. AIR 1991 SC 207
6. Constitution of India, Available Here
7. Indian Penal Code, Available Here
Important Links
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