Marital Rape – Violence,Trauma & Consent
By:- thelawiq.com Author:- Thota Sai Srinija (3rd Year, BBA LLB Presidency University, Bangalore)
The concept of Marital rape which is also called as spousal rape is one of the burning issues in today’s world. The courts, society & also media is stuck up between calling it an offence or not. Marital rape is basically defined as the sexual intercourse by the man with his wife, without her consent for such act. It is been said that sexual intercourse within marriage was considered as their ‘Right’ and then now the focus has been shifted to the element called ‘consent’ engaging such act. Hence, Consent of a spouse has become an essential element & plays a vital role to discuss upon this concept.
Marital rape is not though a physical violence it is considered to be a part of domestic violence against women. From the second half of 20th century, the huge number of debates were going on regarding the issues of the violence against women. Then the world realized the amount of pain that women are facing through these issues and has drawn an attention towards this concept, introduced and also implemented certain laws accordingly. However, still in many countries people are seen tolerated silently due to lack of knowledge and awareness.
Marital rape is though a widely experienced by women, it is still a confusion in many countries that whether it must be stated under ordinary rape or simply consider under violence by the spouse, like assault, battery etc. The main issue behind the confusion is due to the lack of perfect definition to the term ‘non-consensual rape’ which is a necessary element to analyze the concept of marital rape.
It is not that this issue is completely left aside as it has been unclear from the beginning, there are many statutory exemptions, judgements, laws & reference which prevent people using marriage as a defense. Since marital rape is more kind of implied offense it is very critical concept analyze and draw the conclusions, but still not impossible so let’s understand the concept from the below analysis through this article.
What is marital rape?
To understand what is marital rape, one must first know what is rape? Rape is an unlawful act of sexual intercourse made by a man with a woman without her consent. And such an act by outsider is considered to be an offense in India under section 375 and therefore penalized under section 376 of IPC.
Marital rape is when the act of rape is committed by the spouse/ husband not any outsider. The only difference between rape and marital rape is that the wrongdoer is an outside in case of rape whereas not a stranger in case of marital rape. Although marital rape is a same offense is not considerably penalized liberally than rape, as keeping the marriage as a defence.
History – Gradual change in the concept
It has always been very unfortunate to hear that, women were treated more as property than human beings. That is where the crimes against women have been left unnoticed or recognized only in the name of their guardian(s). Rape was also used to be considered as theft of ladies or wrong against; spouse of a husband (or) guardian(s) property.
Earlier as all the legal rights of the women were considered to be left with the husband after marriage, there was an implied consent theory. In which it was considered that the consent of women is automatically conferred to her husband after the marriage. And then there was also a theory considering women to be the property of the husband, thus rendering marital rape an oxymoron. That is the complexity of the concept arises.
Later, there was a ray of focus falling on the concept through the feminist movement in the 19th century. But it was seen argued that marital rape is still less serious than other forms of rape. Most of the western countries criminalized marital rape by the 1960s and 70s considering it as not a statutory exception under the definition of rape or by explicitly defining marital rape as a criminal offence.
There were many laws formulated by numerous countries to declare marital rape as offence from then. Over 150+ countries have been criminalized marital rape according to the statistics of the year 2019. Even though it has been criminalized, the process of prosecuting it is still left behind as it is seen to be problematic in implementing.
Marital Rape – Indian context
As known India follows to Indian Penal Code, 1860 to penalize the crimes in the country. It is noticed that marital rape is not considered to be a rape. It is still on debate whether it is an offense or not (In India),
The Indian Minister of State for Home Affairs, Haribhai Parthibhai Chaudhary, stated in April 2015, “The concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty, myriad social customs and values, religious beliefs, [and] the mindset of the society to treat the marriage as sacrament” (Torres, 2016).
Although India notably specifies that forced intercourse within a marriage cannot be considered rape, it provides some laws prohibiting marital rape only if the wife is under a certain age.
- Sexual intercourse by a man with his own wife, under 15 years of age is not considered to be rape U/s 375 of Indian Penal Code, 1860. Marital rape under is considered as offense under below condition and penalized according –
- When the spouse is of 12 – 15 years of the age, shall be punishable with imprisonment up to 2 years (or) fine (or) both.
- When the spouse is under 12 years, shall be punishable with imprisonment may not be under 7 years and which may extend up to 10 years or life term and subject to fine as well.
- Marital rape of an adult wife, who is officially or unofficially separated from her husband, is a criminal offence punishable by 2 to 7 years of imprisonment.
The gradual change and movement in the world & society introduced some rights to the women in order to protect them, which now play a key role to the concept. Some of the rights are developed through following cases:
Right To Live With Human Dignity –
In the case of Francis Corallie Muin v. Union Territory of Delhi, the SC that the offense of rape abuses the right to life and the right to live with human dignity of the victim of the crime of rape. For the first time right to life under Article 21 of the Constitution was brought into the picture which introduced a new angle of thought about the concept.
The right to live with human dignity is a standout amongst the most fundamental component of the right to life which perceives the independence of a person. And women are as now considered to be human not a property anymore must be entitled to avail such rights.
Later, in the case of Bodhisattwa Gautam v. Subhra Chakraborty the court held that rape is to a lesser degree a sexual offense than a demonstration of hostility gone for corrupting and mortifying the ladies. That’s where it was noticed that marital exception is the violation of spouse’s entitlement to live with human dignity. Any law/provision which is seen infringing women to entitle their right to live with dignity and gives spouse appropriate to drive wife to have sexual intercourse without her consent must be held unlawful.
Right To Sexual Privacy –
Right to privacy is not mentioned in the Indian Constitution. In the case of Kharak Singh v. State of U.P.; Govind v. State of Madhya Pradesh,; Neera Mathur v. LIC etc, the SC has perceived that a right to privacy is intrinsically ensured under extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. It is also presented in the marital exclusion to rape damages of married women infringes entitlement of right to protection by driving her to go into a sexual relationship without the consent.
In the case of State of Maharashtra v. Madhkar Narayan, the SC has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished. In the landmark case of Vishakha v. State of Rajasthan the SC extended this right of privacy also to the workplace. Further, it is understood that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital exception infringes this right of privacy of married women and is consequently could be held illegal.
Right To Bodily Self- Determination –
The privilege to substantial self-assurance can likewise go under the ambit of Article 21 in spite of the fact that the Constitution does not explicitly remember it, such a correct exists in the bigger system of the right to life and personal liberty. On the off chance that the law tries to take away the privilege of communicating and repudiating such assent certainly denies a lady her protected right of real self-assurance. In this way, it is presented that the marital exclusion principle successfully denies a wedded lady her entitlement to substantial to self-assurance and meddles in her most individual decision making.
In the case of State of Maharashtra vs. Madhukar Narayan Mandikar the SC has alluded to one side of security over one’s body. Thae tricky part is how does court watch whether it was advantageously put spouse out and has yet not given her protection over her own body while women who have been subjected to rape by stranger have that perfectly declared criminalized however not marital rape. In this situation it was said that even a sex-worker has the right to say NO on the off chance that she was unwilling, through this line it can be analyzed that it’s all about the women consent just the matter of a two-letter word NO does not matter its between strangers or in a marriage or in case of sex-worker.
In the case of Sree Kumar vs. Pearly Karun, the Kerala HC seen that the offense U/S 376A, IPC won’t be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or convention, regardless of the possibility that she is liable to sex by her spouse without wanting to and without her assent. In this situation, the spouse was subjected to sex without her consent by her husband when she had to live with her husband for 2 days when the settlement of separation procedure was going ahead between the two parties respectively. Hence, spouse was held not liable of raping his wife however he had done as such.
In my opinion marital rape is not any small crime and it does not only violate the dignity and privacy of women but also effects the mental health of the victim. There is a lot of physical violence seen against women and were also seen going through mental trauma. This worst part in this is the women had to live with the same person who has committed crime against her.
It is really very important to recognize marital rape as an offense and penalize in the better way thereupon, as this crime is growing a lot and lot behind the defense called ‘marriage’. The criminalization of marital rape must be done everywhere setting aside the cultural norms & customs which are nothing but illegal justifications to the implied consent theory. I believe that the theory of implied consent is the major hurdle in the concept and has to be struck down to highlight the element ‘consent’ in every situation by the women.
As the debate is still in the process on the present matter shows the change in mental state of the society and it is a good sign to implement penalization of this offence because it is seen that even in countries where marital rape is criminalized the penalization of marital rape is a failure. Hence it is necessary to introduce strong provisions which create a he impacts on this issue. Therefore, the marital rape could not be treated liberally anymore.