LAW MANTRA

THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

Marital rape and the Indian legal scenario1

Introduction Despite the increased recognition that the topic of marital rape has generated in the past two decades, the literature in this area remains sparse. Mental agony of being raped, trauma of being victimized by the husband, helplessness of being quiet and the unforgettable scars of the incident are all the elements of marital rape. Apparently, the streets in India are relatively free of crime but woman have not been safe from crimes in their own homes. But the first and foremost question is what impression this statement will have on the society at large and to what extent does the length of marriage or wifes faithfulness to the husband influence the perception of responsibility or trauma in marital rape? Indiana University press, 1990 reported More than 1 in every 7 women who have ever been married, have been raped in marriage. According to the United Nation Population Fund, more than two-thirds of married woman in India aged between 15 and 49 have been beaten, raped and forced to provide sex along with the demand of dowry. In India, the Protection of Women from Domestic Violence Act, 2005 created a civil remedy for victims, but it did not criminalize marital rape. However, excessive and unreasonable demands for sex, or demands for unnatural sex have been considered forms of cruelty and may entitle a woman to a divorce.2Criminalizing marital rape was one of the suggestions made by the Verma Committee, which suggested amendments to Indias sexual assault laws. But, Government left this aspect out of the draft bill considering it as a weapon of destroying institution of marriage. It is much more traumic being a victim of rape by someone known, a family member, and worse to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse? Methodology

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By:- Priya Nagpal, Vaibhav goyal, Vibhuti Khetan, U.P.E.S Dehradun and Nirma University Manushi, laws against domestic violence and abuse,(January5,2013), http://www.indiatogether.org/manushi/issue137/laws.htm

The quality and value of research depends upon the proper and particular methodology adopted for completion of research work. Looking at the vastness of the research topic-historical, doctrinal legal research methodology has been adopted. The relevant information and data necessary for its completion has been gathered from both primary as well as secondary sources available in books, journals, periodicals, newspapers, research articles and proceedings of seminars, conferences, conventions, websites. Keeping in view of the present research, various cases filed in the Supreme Court as well as in the High Courts on the issue and the judgments therein have also been used as a source of information. Discussion Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force or physical violence, or when she is unable to give consent. It is nonconsensual act of violent perversion by a husband against his wife where she is physically and sexually abused. Approximations have quoted that every 6 hours a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN population fund states that more than 2/3rds of married woman in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands families.56% of Indian women believed occasional wife beating to be justified.3The need for a new law on sexual assault was felt as the earlier law did not define and reflect the various kinds of sexual assault that woman are subjected to in the country. The Supreme Court in Sakshi v Union of India had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes. Therefore, the law commission had examined the entire law relating to rape and sexual assault in IPC and suggested a complete overhauling of the law after the barbarous incident of rape in Delhi. In the backdrop of the incident, the central Government setup Justice Verma committee headed by former CJI of India, to make recommendation on the inefficiency of the rape laws and other laws for protection of women in IPC because of great hue and cry by the Indians. After passing of Criminal law amendment Bill,2013 rape was redefined as most horrific events and the Parliament by means of Amendment Act,2013 enlarged the ambit of rape by making oral, anal and other non-penetrative acts as offence amounting to rape. Despite various amendments on rape laws, no law was made on marital rape, thereby granting no protection to married women. The much awaited Domestic Violence Act, 2005(DVA) has provided civil remedies to what the provisions of cruelty already gave criminal remedies, while
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Priyanka Rath, Marital rape and the Indian legal scenario, INDIA LAW JOURNAL,(December11,2013), http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html

keeping the status of the matter of marital rape in continuing disregard. Section 3 of Domestic Violence Act, amongst other things has included any act of causing harm, injury, anything endangering health, life, etc., mental, physical or sexual. 4Today there are many countries that have criminalized marital

rape.Thesecountriesinclude:Albania,Algeria,Australia,Belgium,Canada,China,Denmark,France ,Germany,Hong Kong, Ireland ,Italy, Japan, New Zealand , Sweden, United Kingdom, United States and Indonesia. As per the estimation of 2006, marital rape is an offence punishable under 104 countries but India is not one of them. The consent to marry gives an implied consent to sexual activity but it does not give consent of being inflicted with sexual violence. The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty to protect themselves against perverse sexual conduct by the husband.5Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.172nd Law commission report has suggested various changes in the law with regard to rape but despite the efforts, no changes has been made regarding the criminalization of marital law. It was suggested that the law under section 376-A and exception under section 375 should be deleted equate marital rape and sexual assault. But despite the efforts made by the commission and many women activists, no heed has been paid to their cries and parliamentary committee supported the government decision that leaving scope for the wife to accuse her husband of rape has the potential of destroying the institution of marriage and felt that if marital rape is brought under the law, the entire family system will be under great stress and the committee be perhaps be doing more injustice. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. The number of victims of marital rape is increasing day by day but still the legislature is ignorant to criminalize such an offence of shame. Women are ignorant to reach the authorities and report this offence as 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. Indian Penal Code & Marital Rapes

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Protection of women from Domestic Violence Act, Section 3 Bhavish Gupta & Meenu Gupta, Marital rape-Current legal framework in India and the need for change,(November 10,2013), http://law.galgotiasuniversity.edu.in/pdf/issue2.pdf

India is growing in every possible field if we compare to earlier times but still there are no provisions in our statute for punishing marital rapes. Although there had been many amendments done in our statutes (basically in IPC), there are many law commissions reports came for this matter even new acts also made by parliament but still this act of marital rape is not an offence in India. If we look at the options that a women has to protect her from marital rape are very less and the law makers are totally depended upon the discretion of courts in this issue. If we look at the Exception given in Section 375 of Indian Penal Code it says that Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape. Even there is amendment in 2013 in IPC but there is no change in the said provision. Section 376 of IPC talks about the punishment for rape, according to the section, the person who commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine if the women is not his own wife and also not under the age of 15. This section of IPC has very narrow view in dealing with sexual assault, that if a wife is below the age of 15 only then the person is liable for the offence of rape. Once, the age of wife crosses 15, there is no legal provision which protect wife and this is in direct contravention of human rights regulations. How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 15? Beyond the age of 15, there is no remedy the woman has. The Indian Penal Code was amended in 1983 to make way for the criminalization of spousal rape during the period of judicial separation.6 As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under: 1. When the wife is below 15 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or and shall also be liable to fine. 2. Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine; 3. Rape of wife of above 15 years in age is not punishable.

Marital Exemption to rape viz-a-viz the Constitution of India

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Indian Penal Code (45 of 1860), Section 376A

As per the Indian Constitution, every law that is passed in the country has to be in conformation with the principles and ideas enshrined in the Constitution of India. Any law that fails to meet this standard is considered ultra vires and is liable to be struck down by the courts and declared unconstitutional. Article 14 guarantees a fundamental right of equality before the law and equal protection of laws to every citizen of India.7Section 375 aims to protect the women and criminalizes the offence of rape by protecting her from forceful sexual intercourse against her will and without her consent. However, ironically, section 375 of the IPC makes a classification in terms of an exemption that does not regard a forceful sexual intercourse within a marriage as rape. The exemption withdraws the protection from the married women on the basis of her marital status. This classification and differential treatment is violative of Article 14 of the Indian Constitution. In the case of Francis Corallie Muin v. Union Territory of Delhi8, Supreme Court held that, Article 21 of constitution of India which talks about right to life includes the right to live with human dignity and all that goes along with it, namely, the basic necessities of life as clothing, adequate nutrition and shelter over the head and facilities for reading, writing, freely moving and enjoying with fellow human beings. The right to live includes right to with human dignity and it is one of the most important rights to recognize the autonomy of individual. There is no concept of Right to privacy in Constitution of India but in cases like Kharak Singh v. State of U.P.9; Govind v. State of Madhya Pradesh10, Neera Mathur v. LIC11, court recognized that right to privacy is a fundamental right and it is protected under article 21 of the constitution of India. There is another case of State of Maharashtra v. Madhkar Narayan12 in which Supreme Court held that every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased. In a case of The Chairman, Railway Board v. Chandrima Das13 Supreme Court has held that the offence of rape with any women violates her right to life and her right to live with human dignity as she is the victim of rape. The Supreme Court in another case of Bodhisattwa Gautam v. Subhra Chakraborty14 has held that rape is not only an offence under the IPC, but is a crime
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Constitution of India, Article 14 AIR 1981 SC 802 9 AIR 1963 SC 1295 10 AIR 1975 SC 1378 11 (1992) 1 SCC 286 12 AIR 1991 SC 207 13 AIR 2000 SC 988 14 AIR 1196 SC 922

against the whole society. Rape is an act of showing sexual aggression towards women to humiliate her. Thus we can say that exempting the marital rape from the purview of rape or section 375 of IPC is bad in law and if a marital rape is happens it is against womens right to life and personal liberty. The law which legitimizes the forceful act of husband towards her wife to do sexual intercourse without her consent is against the essence of Article 21 of Constitution of India and hence should be called as unconstitutional.

Role of Judiciary If we look at the judicial decision the court in Queen Empress vs. Haree Mythee15 held that if the wife is over the age of 15 then the rape laws does not apply in that situation. In this case the husband was punished because her wife was of age of 11 years only. In Saretha vs. T. Venkata Subbaih16, the High Court Andhra Pradesh held: There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person. If State enforced sexual intercourse between husband and wife is a violation of the right to privacy, surely a womans right to privacy is equally violated in case of non-consensual sexual intercourse with the husband. Rights and duties in a marriage, like its creation and dissolution are not the terms of a private contract between two individuals. The right to privacy is not lost by marital association. The Kerala High Court in Sree Kumar vs. Pearly Karun17, observed that if the wife does not live separately with the husband under the judicial separation and if she was subject to sexual intercourse without her will this act does not amount to rape and does not attract section 375 of the Indian Penal Code. In the present case, there was dispute on divorce going on between the parties. Then after some settlement both agrees to reside together. The wife stayed with the husband for two days during which she alleged that she was subject to sexual intercourse by her husband against her will and consent. Hence the husband was held not guilty of raping his wife though he was de facto guilty of having done so.

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[(1891) ILR 18 Cal. 49] AIR 1983 AP 356 17 1999 (2) ALT Cri 77

Through these judgments we can say that judiciary is also not taking this matter in the favour of women and according to the judgment we can conclude that there is no punishment for husband if he does intercourse with his wife against her will. So no remedy remains with a women if she is sexually exploited by her husband. Position in other countries In the year 2006, the UN Secretary-General's said in -depth study on all forms of violence against women : "Marital rape i.e. Rape by husband is not an offence in at least 53 countries. Four countries criminalize marital rape only when the spouses are judicially separated. In the United States, the marital rape is become criminalization in the mid-1970s and in 1993 North Carolina became the last country to make marital rape illegal.18 In many countries, the laws regarding marital rape is ambiguous and they are not clear that whether a person can be prosecuted under the given law for marital rape. In the absence of a spousal rape law, it may be possible to bring prosecution for acts of forced sexual intercourse inside marriage by prosecuting, through the use of other criminal offenses (such as assault based offenses), the acts of violence or criminal threat that were used to attain submission. 19 Countries where the laws on rape exclude a husband as a possible perpetrator include several Asian countries which have inherited the 1860 Indian Penal Code (which states that "Sexual intercourse by a man with his own wife is not rape"20) and several countries in the Commonwealth Caribbean region. Conclusion It can be concluded that India is growing in every sphere and recognizing itself at the word level but still the laws which govern Indian people are old and obsolete. The laws fails to provide proper protection to women and as earlier the women are still treated as the property of husband and he has all the right to exploit her and there is no remedy which remains with her. Though a husbands violent and non-consensual act of intercourse may entitle a wife to bring action for criminal assault, inquiry or matrimonial relief, what is needed is the incorporation of the principle of liability for marital rape in our penal laws. Not only child-brides, but all wives need legal protection from rape within the marriage. It is high time that the dignity and
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Raleigh, N.C the last state to outlaw marital rape, THE DAILY GAZETTE,July2,1993 Aware, Rape and sexual assault,(September 5,2013), http://www.aware.org.sg/rape/ 20 http://globaljusticecenter.net/index.php?option=com_mtree&task=att_download&link_id=105&cf_id=34 (last accessed December 6, 2013)

freedom of a woman over her body and person must be recognized. It would seem, therefore, that insofar as the marital rape exception creates a classification between married and unmarried women, and denies to the former the equal protection of its criminal legislation, it prima facie violates Article 14 and article 21 of Indian Constitution and I cannot, at the moment, think of a legitimate State purpose that would bear a rational nexus to the differentia, and save it from unconstitutionality. By: Name- Priya Nagpal College- University of Petroleum & Energy Studies , Dehradun Semester- VI Course - B.B.A. LL.B (Hons.)

CO- AUTHOR Name- Vaibhav goyal College- Institute of Law Nirma University Semester- VI Course - B.Com LL.B (Hons.)

CO- AUTHOR Name- Vibhuti Khetan College- Institute of Law Nirma University Semester- VI Course - B.Com L.LB (Hons.)