Marital rape: rape culture in India

Lavanay Gupta[1]

Abstract

This paper raises the question that if there should be a law for marital rape in India. All the citations in this assignment have been cited in the bluebook format.

The author by the way of this research paper tries to describe the problem of forced sex in marriage also known as Marital Rape which is increasing with each passing day due to regressive mentality of Indian population. The paper then goes on discussing the existing legislations against sexual assaults which have drastically failed to address this problem because the leaders elected by citizen of India in 21st century still believe that India is not ready for criminalizing marital rape. The authors try to throw shadow on the various arguments tabled by the committees formed to evaluate this problem and critically analyze those reports. The paper also gives reason to criminalize marital rape based on the current social conditions prevailing in India, where courts are facing the problem of deciding on the issue of consent in rape cases.

The author aims to highlight the issue of marital rape through this research paper and critically evaluate the present conditions in India around this issue. The author hopes for bringing about a change in society and create awareness in society on this issue.

Keywords: Marital Rape, Domestic violence, Forced Sex, Consent, Section 498a

Introduction: understanding the concept of marital rape

“Any act of gender-based violence that result in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”[2] is defined as violence against women according to UN General Assembly. The above definition defining violence against women in itself is competent enough to explain that any kind of physical, sexual or psychological harm done to any women should qualify as violence as rape. It should be judged accordingly irrespective of the relation shared by the woman with the accused even if she is wife, daughter, or any other close relative violence shouldn’t go unpunished.

India being in 21st century is still a long way away from realizing this definition of violence against women where the governments avoid legislating law related to rape in marriage because we think that Indian tradition give utmost supremacy to the husband in the institution of marriage which exposes the double standards of our people who on one hand are fighting for gender equality but don’t want to respect the opinion of their own wives.

Union minister Maneka Gandhi shared her views regarding marital rape which were expressed by her in the Upper House,

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.,”[3]

Marital rape is an act of sexual intercourse, forcefully done by one’s spouse without her consent. In historical times any sexual advances made by husband towards wife with or against her consent were considered as his right and there was no term as marital rape prevalent back then and husband’s wish was given the supreme importance.

As the times changed from early 18th century to 21st century the principle of gender equality gained momentum and then in mid of 20th century constitution of India was drafted with the article 14 which talked about Equality before law[4]and article 15 which talked about ‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’[5] covered under the part III of constitution known as fundamental rights. These rights accorded to the people residing in India and enforceable by courts paved a way for women to be on same level with men in the society. The main aim of these legislations was to bring equality amongst various genders, religions or race but if we critically analyse the various laws drafted since then were we in literal sense able to accomplish this goal, maybe the answer is no and one of the most relevant section to this topic which best demonstrates this disparity is Section 375 of IPC.

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Legislative overview

Section 375

Section 375 of Indian Penal Code defines the “offence of rape-A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances such as where the activity was done against her will or without her consent or where the consent has been taken under undue influence.[6] The problem with the above section is that it doesn’t recognize the forced sexual advances done by husband with his wife as rape.

The above section of IPC has legalised the concept of forced sex by husband with wife and don’t want to amend it, just because the union government believes,

“It has to be ensured adequately that marital rape does not become a phenomenon that may destabilise the institution of marriage apart from being an easy tool for harassing husbands. The Supreme Court and various high courts have already observed the rising misuse of Section 498A of the IPC.” as mentioned in an affidavit filed by Union Government in Delhi High Court.[7]

The above paragraphs clearly indicate that how the Indians have drastically failed to achieve the benchmark set by the constitution makers to bring equality in the society by giving dominance to husband over his wife to have sex against her will and still can’t be punished for it.

Section 498A

Section 498a defines the provision for punishment to be given to husband or his family who does cruelty on his wife.[8] This section defines any such act which causes physical or mental harm to the wife as a cruel act and sexual activity done against the will of wife can be categorized as physical and mental torture. The above description of cruelty allows the wife to file a case against her husband under this section but as marital rape is not specifically included in this section so it gets difficult to use the section as a remedy for marital rape.

Protection of children from Sexual Offences Act, 2012

Protection of children from sexual offences act was legislated in the year 2012 which criminalized any kind of sexual activity done with a child below the age of 18 years irrespective of the consent given by the child under section 2.[9] This act provides a relief to the wives stuck in child marriages and are below 18 years, they can get their husband booked for marital rape under this act.

Current legislations to address the problem of forced sex in marriage

India currently has very few recourses available for wives to address the problem of forced sex by husband with them, most of which are covered under the sections addressing the issue of cruelty done by husband with her wife.

Currently wives suffering from the problem of marital rape can file a case under section 498a of IPC which states that any women being subject to any kind of cruelty from her husband or his relatives can get them punished[10] under this section or section 377 of IPC which states that any kind of unnatural sex is prohibited in India.[11]

Section 498a[12]is being widely used at present in India as a recourse for forced sex being practised but still the percentage of cases being filed for forced sex under this section is negligent which shows how the institution of marriage is still being dominated by men and women are afraid to take any step towards the hardships being faced by them. According to survey carried by The International Centre for Women (ICRW) and United Nations Population Fund’s (UNPFA) India sees an average of 30% sexual violence cases within marriages but only 2% are reported[13] which depicts the backwardness and male dominance in Indian society.

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Section 377[14] has a relatively restricted use as this section states that unnatural sexual intercourse consists of anal intercourse which is not reproductive in nature[15] so if wife wants to take recourse under this section anal intercourse is must, which makes the usage of this section restrictive in nature due to which it’s difficult to find cases filled by wives under this section.

Issues

Current laws for marital rape

The current laws which can be used to book the accused of marital rape are too vague which don’t give a clear definition of marital rape under them due to which it gets difficult to use them in courts and counsel for the victims have to rely on precedents to get justice.

The other problem with the current laws for marital rape is under section 498a[16] there is provision of maximum three years of imprisonment whereas section 375[17] for rape provides a minimum punishment for seven years which may go up to imprisonment for life which doesn’t give justice to the victim as non-consensual act done within marriage or by a stranger gives same level of trauma to the victim but due to this section the rapist who rapes in marriage is given a special treatment and is distinguished from the normal rapist.

Arguments for/against criminalization

172nd law commission report

There have been various reports submitted by various committees formed by union government and courts from time to time addressing the issue of legislating law pertaining to marital rape.

The first report addressing the issue of marital rape was 172nd law commission report[18] which was asked by the Supreme court in the writ filed by ‘Sakshi’ organisation[19] to look into the questions raised in the above writ. The writ revolved around the demand to widen the scope of rape and clarify the meaning of rape under section 375.[20] Under this report law commission stated that the forced sex by husband is punishable under respective sections and deleting the exception under section 375 would result in excessive interference with the marital relationship.[21] This advice in the report is too problematic because it gives the husband right to treat his wife in any way he wants because formulating any law pertaining to these issues would result in excessive interference with the matrimonial relationship.

Justice J.S. Verma committee

The next report submitted on the issue of marital rape was by Justice J.S. Verma committee which was formed after December 16 gang rape who advice on the changes to be made in the laws to deal with such situations. This report gave progressive advice to deal with the problems faced by women and bring equality in real sense in the society. This committee suggested that in the case of rape the matrimonial relation between the victim and accused shouldn’t be taken into consideration and should be dealt in the same as any other rapist would have been.[22] The committee in its report said,

“Relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”[23]

This report in real sense intended to give long lasting equality to women in the closed room which she was dying to get since ages.

Recent developments

Recently Supreme Court of India on October 11, 2017in its judgement criminalized any kind of sexual activity done with any girl under the age of 18 even by her husband[24] is a progressive judgment which has paved a way to criminalize the forced sex practiced in marriage within closed doors.

Need to criminalize marital rape

Feminist theory

According to feminist’s point of view sex is used as a suppressing tool by men to suppress women in one or the other.

Often cited by Dworkin’s critics, interpreting the book as claiming “all” heterosexual intercourse is rape, or more generally that the anatomical mechanics of sexual intercourse make it intrinsically harmful to women’s equality. For instance, Cathy Young1 says that statements such as, “inter-course is the pure, sterile, formal expression of men’s contempt for women”, are reasonably summarized as “all sex is rape”.[25]

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Basically, feminists’ theory condemns the practice of any kind of rape which is done against the consent of the women as it leads to the suppression of women by men which is the main objective of Feminist Theory to remove any kind of oppression faced by women.

This gives rise to an important reason for removing the ill practice of marital being practiced in India, as India is concentration is on the issue of gender equality and if there is any practice through which one gender is being oppressed by the other then how gender equality be achieved in such a country.

Consent

Idea of consent in India is still in developing stage as laws based on consent aren’t too well defined in India at this stage, they just talk about the minimum age required for giving the consent and rest is left on the circumstantial evidences and on the prejudice of judge.

Consent in the cases of sexual offences is offence perceived on the basis of physical injuries suffered by the victim or sometimes on the testimony of the victim or accused.

Marital rape laws are necessary to be drafted so that the idea of consent is also defined on the basis of some theory as it won’t be possible to judge the cases of marital rape merely on the circumstantial evidences and testimonies as assessing consent is by free or not in a relation is way too different from assessing the same between people who aren’t related to each other.

So, this leads us to another important reason why marital rape should be criminalized as this would lead to identification of the principle of consent in most complex situations.

Conclusion

Marital rape in today’s time is rebut by the scholars and government by claiming it to afancy word which is used in western culture and not relevant to Indian society as it would destabilize the institution of marriage. What can’t be understood is that how this definition could help in empowering women and restore their dignity be compared to western culture or affect the institution of marriage. The claim of people that the current laws for women are being misused so we shouldn’t make a law for marital rape as it would affect the males is baseless, how can we make an excuse of misuse of laws to not give any recourse for a problem being faced by a citizen.

On this note I would like to end my research paper demanding for a strict law to be legislated against the forced sex being practiced maybe in marriage or outside marriage.


[1] Student, O.P. Jindal Global University.

[2] United Nations Declaration on The Elimination of Violence Against Women (1993), art. 1.

[3] Himanshi Dhawani, Maneka does U-turn on marital rape, The Times of India, Mar 13, 2016

https://timesofindia.indiatimes.com/india/Maneka-does-U-turn-on-marital-rape/articleshow/51377837.cms.

[4] Indian const. art 14.

[5] Indian Const. art 15.

[6] Indian Penal Code, 1860, section 375

[7] Satya Prakash, Criminalising Marital Rape. May Destabilise Marriage: Govt. To HC, the tribune, Aug 30, 2017

http://tribuneindia.com/news/nation/criminalising-marital-rape-may-destabilise-marriage-govt-to-hc/459327.html.

[8] Indian penal code 1860, Section 498A.

[9] Protection of Children from Sexual Offences Act 2012, Section 2.

[10] Supra note 7.

[11] Indian Penal Code 1860, Section 377.

[12] Supra note 10.

[13] Rukmini S., Marital Rape: The Numbers Don’t Lie, The Hindu, Nov. 11, 2014

http://www.thehindu.com/data/statistics-on-marital-rape/article6586829.ece#!.

[14] Supra Note 11.

[15] Id.

[16] Supra note 10.

[17] Supra note 5.

[18] Law commission report No. 172, Ch. 3 (2000).

[19] Sakshi v Union of India, 1997.

[20] Supra note 17.

[21] Supra note 17.

[22] Justice J.S. Verma committee, Amendments to criminal law 113, (2013).

[23] Id.

[24] Krishnadas Rajagopal, SC verdict will have immediate effect on those in child marriage: legal experts, the hindu, Oct. 11, 2017, http://www.thehindu.com/news/national/sc-verdict-will-force-people-in-existing-child-marriages-to-live-separately-experts/article19840796.ece#!.

[25] Tamanna Khosla, Women’s World, mainstream weekly (September 13, 2014),

http://www.mainstreamweekly.net/article5177.html.