SHOULD MARITAL RAPE CRIMINALISE OR NOT?

This article has been written by Sanju Jha pursuing Ba. Llb from Rnb global university, Bikaner

Marital rape is an intimate issue, which if made a criminal offence will cause more harm than do good. Since the very institution of marriage is based on procreation and sexual intimacy, it will be next to impossible to determine the circumstances which will amount to marital rape. If a wife is subjected to forced sexual intercourse by the husband it can surely amount to cruelty and can be a ground for divorce. However, the term marital rape can be used in cases where wife and husband are living separately or there is lack of cohabitation between them. So, if it is to be made an offence the circumstances need to be properly articulated, else it will be more of a weapon than being a remedy.

By Diksha Srivastava, graduated from Lucknow University and LLM from SLS, Pune

Introduction

Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized. The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside criminal law or is illegal but widely tolerated. Laws are rarely enforced, due to factors ranging from the reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal.

Marital rape is more widely experienced by women, though not exclusively. Marital rape is often a chronic form of violence for the victim which takes place within abusive relations. It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways. The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and cultural expectations of subordination of a wife to her husband—views which continue to be common in many parts of the world. These views of marriage and sexuality started to be challenged in most Western countries from the 1960s and 70s especially by second-wave feminism, leading to an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body, and the withdrawal of the exemption or defense of marital rape.

Most countries criminalized marital rape from the late 20th century onward—very few legal systems allowed for the prosecution of rape within marriage before the 1970s. Criminalization has occurred in various ways, including the removal of statutory exemptions from the definitions of rape, judicial decisions, explicit legislative reference in statutory law preventing the use of marriage as a defense, or the creation of a specific offense of marital rape. In many countries, it is still unclear whether marital rape is covered by ordinary rape laws, but in some countries, non-consensual sexual relations involving coercion may be prosecuted under general statutes prohibiting violence, such as assault and battery laws.

Why there’s a marital rape escape hatch

Marital rape is a sensitive topic, difficult to measure anywhere, but even more so in India – where most sexual violence is believed to occur within families and goes unreported. According to the Indian government’s latest National Family Health Survey, about 30% of Indian women aged 18-49 reported having experienced spousal violence. In terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724, 115 women.

The fight to criminalize marital rape goes back decades but gained steam in 2012 when a brutal gang rape on a New Delhi bus shocked the world. The victim, who died of her injuries, became known as “Nirbhaya” – the fearless one – because, under Indian law, her name could not be reported publicly as a victim of sexual violence.

Her case triggered a reform of India’s rape laws: A wider definition of what constitutes rape and longer prison sentences for convicts. Police departments across India have also added Nirbhaya brigades of female officers, who patrol dark streets at night.

“That’s a great thing! But what happens is, it also reinforces the idea that sexual violence happens outside the home,” says Nayreen Daruwalla, program director for prevention of violence against women and children at SNEHA, a non-profit group doing health and safety outreach in Mumbai’s slums. “Whereas the concept of rape within the home is still considered private. There is no recognition. There is no protocol.”

So, despite this overhaul of India’s rape laws following the 2012 Nirbhaya case, a legal loophole remained: Rape that happens within marriage is still not against the law.

Section 375 of the Indian Penal Code, which prohibits rape, also includes an exception, which reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The High Court petitioners call that patriarchal. “After marriage, it’s the husband’s right over the body of the wife, and this concept that a woman can refuse sex within marriage is not widely accepted,” explains Mariam Dhawale, general secretary of the All India Democratic Women’s Association (AIDWA), a non-profit group that also filed a petition to the court. “In fact, it was not even accepted by the government. That’s why the exception continues today.”

To many equal rights advocates, this battle to close that loophole, and explicitly make marital rape a crime, is seen as long overdue. But some conservatives see it as radical – even destructive to traditional Indian values.  So much so that some men have decided to go on strike.

Marital rape and law in India

Marital is not an offense in India. The enactment in regard to marital rape in India is either nonexistent or esoteric and depends on the understanding by courts. Section 375, the provision of rape in the IPC, mentions as its exception clause – “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” As per section 376 of IPC, which provides punishment for rape, the rapist ought to be rebuffed with detainment of either portrayal for a term which might not be under 7 years but rather which may stretch out to life or for a term reaching out up to 10 years and should likewise be at risk to fine unless the lady raped is his own particular spouse, and is not under 12 years old, in which case, he might be rebuffed with detainment of either depiction for a term which may reach out to 2 years with fine or with both.

Hence marital rape is viewed as rape just if the spouse is under 15 years old, and the seriousness of punishment is milder. There is no lawful security agreed to by the spouse after the age of 15, which is against human rights directions. A similar law that accommodates the lawful period of agreement for marriage to be 18, shields from sexual mishandle just the up to age of 15. According to the IPC, the cases wherein the spouse can be criminally arraigned for an offense of marital rape are as under when the spouse is underneath 12 years old, offense culpable with the detainment of either portrayal for a term which might not be under 7 years but rather which may reach out of life or for term stretching out up to 10 years and should likewise be subject to fine; Rape of a judicially isolated spouse, offense culpable with detainment up-to 2 years and fine; Rape pf wife of above 15 years in age is not punishable.

In 2005, the Protection of Women from Domestic Violence Ac, 2005 passed which considered marital rape as a type of local violence. Under this Act, a lady can go to court and get a legal partition from her husband for marital rape. Martial rape is unreasonable: a lady’s body is raped, as well as her affection and trust are damaged in this way throwing her it might be said of instability and dread. Her human rights are relinquished at the holy place of marriage. However, the laws to secure the interests of the casualties of marital rape are lacking and deficient, and the means taken are unacceptable. The fundamental commencement of these “laws” is that agreeing to wed includes an agreement to draw in into sexual action. However, does consenting to participate in sexual action mean agreeing to be exacted with sexual viciousness? Brutality makes a feeling of dread and instability making the lady submit to sex. It is not the same as consenting to sex. The refinement amongst and non-assent in contradistinction is central to criminal law.

It is unexpected that the lady can ensure her entitled to life and freedom, but not her body inside her marriage. The very meaning of rape (section 375 of IPC) should be changed. The main resort for ladies so far is section 498-A of the IPC, managing remorselessness, to ensure themselves against “unreasonable sexual direct by the spouse”. In any case, there is no standard of measure or translation for the court, of ‘perversion’ or ‘unnatural’ within implied spousal relations. Is unreasonable? Isn’t assent a sine qua non? Is marriage a permit rape? There is no answer, on the grounds that the judiciary and the legislatures are quiet.

CONCLUSION

Martial rape is not completely criminalized in India. It certainly is a genuine type of wrongdoing against ladies and deserving of the government’s consideration. Women who are raped by their spouses are more inclined to various attacks and frequently endure long-haul physical and enthusiastic issues. As the results of marital rape are truly high, there is obviously a dire requirement for the criminalization of the offense of marital rape. There are many loopholes in the Protection of Women from Domestic Violence Act, as the Act does not straightforwardly talk against marital rape. On the brighter side sanctioning of a particular enactment against abusive behavior at home has opened the entryway for an enactment criminalizing marital rape. This unmistakably demonstrates the move in the mentality of the state which prior put stock in non-intercession in the family circle.