Since childhood, watching happy ending Bollywood melodramas imbibes in everyone that marriage is a happily ever after kind of story. But in real life marriages may turn out to be most traumatized, tortured, abusive & mistreated relationship of one’s life. When husband gets abusive in a marriage it need not necessarily be limited to only physical violence & things take an ugly shape when even sexual violence is resorted to by a person who is entrusted with her “responsibility” after marriage.
As is said Rape is Rape. It is an act of violence on victims’ body, without her consent & just because such violence is committed by the husband so it is acceptable. Probably this is the message that goes to the sick, cruel minds who indulge into such acts & not “crime”. Marital rape as per Wikipedia is also known as spousal rape, is non-consexual sex in which the perpetrator is the victim’s spouse. As such, it is a form of partner rape, of domestic violence and of sexual abuse. Marital rape is a serious and often insidious form of violence against women with potentially devastating long-term physical and emotional effects. However, it is also vastly under reported and thus often untreated.
“Marital rape is a more dangerous form of sexual violence. A rape is normally a one-time occurrence, but marital rape allows for the victim to be raped over and over again. And the perpetrator here is not a stranger but the husband.”
Numbers tell a story:
In early 2000, two-thirds of married Indian women surveyed by the United Nations Population Fund claimed to have been forced into sex by their husbands of which women aged 15 to 49, have been beaten, or forced to provide sex.
In 2011, a similar study released by the International Center for Research on Women, a Washington-based non-profit, said one in every five Indian men surveyed admitted to forcing their wives into sex.
A nine-nation study within the European Union found that current or ex-partners were the perpetrators of around 25% of all sexual assaults, and that violence was more common in assaults by ex-partners (50% of the time) and partners (40%) than in assaults by strangers or recent acquaintances (25%)”.
Rape violates a woman’s bodily integrity, freedom, and self-determination; the harm is not mitigated because the rape occurred in her marriage bed. Marital rape can be more traumatic and abusive than stranger rape. Suffering at the hands of a spouse, who is usually a source of trust and care, produces feelings of betrayal, disillusionment, and isolation in the woman. The spousal exemption to rape statutes is a grave injustice and adds to the trauma of marital rape. A wife is not able to quickly and unilaterally secure protection; she must wait for the divorce process to take its course to obtain relief, during which time she remains endangered. The rape law exemption, therefore, removes a wife’s right to abstain from sex and subjects her directly to the dangers of sexual violence. Following are several theories which justify marital rape exception-
i. Implied Consent Theory:
The common law theory behind a spousal exemption for rape is most frequently attributed to Sir Matthew Hale, who asserted “but the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract’’. ‘R. v. Clarence’ (22 Q.B.D. 23 1888) initiated the questioning of the soundness of Hale’s theory. The bench theorized that marital rape could be possible in some cases if the wife refuses intercourse and the husband uses violence to force the sexual act upon her.
In addition to Hale’s implied consent theory, the unities of persons theory provided a basis for the marital rape exemption. This theory was premised on how marriage merged the identities of the husband and wife into one-the husband. Thus, under the unities theory, rape was impossible since a husband was incapable of raping himself. Furthermore, society viewed a wife as her husband’s property or chattel. Consequently, forced sexual intercourse was just a husband making appropriate use of his property.
ii) Separate Sphere ideology
Toward the end of 19th century, every state in the United States adopted the Married Women’s Property Acts, which allowed women to make contracts, to hold and convey property, and to sue and be sued as if they were unmarried. The property arguments discussed as a basis for the marital rape exemption lost their persuasiveness because women were no longer classified as property; rather, they could own property. The separate spheres ideology replaced the unities theory as the basis for women’s inequality. This ideology effectively separated the sexes by maintaining a woman’s place in the home. Laws traditionally did not infringe upon one’s private home, thus, legal interference into a woman’s sphere became an unlawful public intrusion.
iii) Spousal Exemption Rationale
Evidentiary problems make marital rape difficult to prove. Without the marital rape exemption, a vindictive wife may accuse her innocent husband of rape to blackmail him into giving her a favorable property settlement or custody arrangement in divorce proceedings.
Winds of change:
Around the globe social and legal attitudes began to change with the help of three developments in the late 19th& early 20th centuries. One was the Married Women’s Property Act of 1889, which afforded women the right to manage their own property, work outside the home without the consent of their husbands. Second, the divorce laws changed, making it possible for a wife to revoke her marriage contract. Third, sexual assault legislation was evolving to include a broader array of sexual offenses.
These three phenomena helped to shift the ideology surrounding the legality and rationale for marital rape exemptions and the “license to rape” given to husbands.
Various legal systems around the world have today made marital rape a punishable offence, thus recognizing women’s complete right over her body despite being married.
In 100 countries across the world, marital rape is a criminal offense and is punishable by law including 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Poland, Czechoslovakia, Canada, New Zealand and Australia have made complete reforms in their rape laws by declaring marital rape illegal. In one such case, in 1987 court of appeal’s case, R v. N , it was observed by court that parliament made no distinction between spousal rape and other rapes because all rapes produce the same severity of outrage and violation.
Where does India stand?
In India, however, marital rape is counted as offense only when the couple is separated. The Indian legal system does not recognize rape within marriage. Section 375 of the IPC mentions as an exception: “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” According to Section 376, the rapist should be punished with imprisonment for at least seven years, which may extend to a 10-year term or even life-term. In addition to this, the rapist shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.
The legal age for marriage in India is 18 years and the law protects girls only up to the age of 16.
A woman can seek legal recourse only under Section 498 (a) of the Domestic Violence Act of the IPC according to which: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is cognizable, non-compoundable and non-bailable.”
Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.
Recently justice J.S.Verma committee has said marriage or any other intimate relationship between a man and a woman is “not a valid” defence against sexual crimes like rape. Quoting various court judgments in different countries, the panel said “the exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands.” Sadly this recommendation of panel finds no place in Criminal Law (amendment) Bill, 2012. The reason for keeping marital law out of purview of anti-rape laws was given to be “heaving scope for the wife to accuse her husband of rape it has the potential of destroying the institution of marriage… the entire family system will be under great stress.”
In a patriarchal society like India women is taught to be under the husband & fulfill his needs. A man forcing himself on his wife is seen as claiming his conjugal rights. The notion is that when a man comes home tired after a day’s work then the wife must not refuse his advances. The problem here is that woman’s labor at home and the workplace is ignored. She becomes a mere object of pleasure for the man.
However it needs to be realized that introducing concept of marital rape under Indian system is the need of the hour. Today where on one hand the country is crying for equality, respect, security, safety of the womenfolk on the other hand not recognizing her right to say NO, her autonomy over her body,on pretext that it has potential of destroying family is totally absurd. And saying that courts would be flooded with false cases of marital rape is just an extensive notion of stereotype vindictive wife. Instead steps may be taken to ensure that provisions of such law must not be misused. But altogether denying to encompass marital rape under penal laws would do more harm than good to families & to societies at large.
It needs to be put into the minds of males that women is not an object & marriage is not a license to have sex anytime, anywhere at their wish & rape whether committed with wife or with stranger girl still remains rape only.
Justice Verrma Report
Indian Penal Code,1860
Domestic Violence Act,2005