By Kartavi Satyarthi, National Law University, Jodhpur.

…… Marriage is for women the commonest mode of livelihood and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution…..”

~ British philosopher and political activist Bertrand Russell

Rape per se is an offence against women, violating her dignity and self-respect and when it occurs within the four-walls of a matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification. Marital rape is possibly the worst form of offence that can be perpetrated on the body of a person as it scars the very soul of a person’s existence when the victim is supposed to live and lead a life with the perpetrator. Marital rape stems from the very root of sexual discrimination and gender bias. It is based on the notion that women are supposed to be subdued and submissive under the influence of men. Once married, a woman’s autonomy over everything she owns, including her body, transfers to her male partner, in the same way as all rights of use and enjoyment of property is transferred with the sale of an object.

The following three kinds1 of marital rape are identified by legal scholars as generally prevalent in the society:

[sociallocker]

Battering rape: In “battering rapes”, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

Force-only rape: In what is called “force-only” rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive” rape; these assaults involve torture and/or “perverse” sexual acts and are often physically violent.

Rape is defined in the Indian Penal Code under S. 375. This section provides an exception for marital rape in the words:

Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”

The exception, thus, keeps outside the ambit of ‘rape’ a coercive and non-consensual sexual intercourse with a ‘husband’ with his ‘wife’ (above fifteen years of age) and thereby, allows a ‘husband’ to exercise, with impunity, his marital right of (non-consensual or undesired) intercourse with his ‘wife’.2 It is believed that the husband’s immunity for marital rape is premised on the assumption that a woman, on marriage, gives forever her consent to the husband for sexual intercourse and her husband has the right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to surrender and submit to his will and desire.3 The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote: “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 herself in kind unto the husband, which she cannot retract”4. As long back as in 1869, John Stuart Mill observed that marital rape is never welcome to women since it represents a surrender of dignity so absolute in nature, that it lowers the stature of the wife beneath that of a slave.5 The other traditional justifications for the marital exemption were the common law doctrines that a woman was the property of her husband and that the legal existence of the woman was ‘incorporated and consolidated into that of a husband’.6 Thus, this provision is a discriminatory provision that discriminates arbitrarily between married and unmarried women. It is violative of Article 14 of the Constitution of India.

So far as the Indian Penal Code is concerned for sexual intercourse with a man or his wife, the age limit was raised to fifteen years by an amendment of the Act in 1949. There may be cases in which the check by the law may be necessary to restrain men from taking advantage of their marital rights prematurely.7 A man cannot be guilty of rape on his own wife when she is over the age of fifteen years, on account of matrimonial consent that she has given which she cannot retract, but he has no right to enjoy this right without regard to the question of safety to her.8

However, non-consensual sexual intercourse, in terms of the acts mentioned in s. 375 (a) to (d), IPC, by a person with his own wife who is, under a decree of separation or otherwise, is living separately is made an offence under IPC9.

The 172nd Law Commission Report has also made a recommendation with regard to deletion of the exception of marital rape.10 A marital sexual abuse victim should be treated as a rape victim, a trial court has held while denying bail to a man accused of sodomizing his pregnant wife. The court lamented that there were no laws to protect survivors of marital rape but said such a victim cannot be discriminated against just because she is the wife of the sexual aggressor.11 J. Virender Bhat, in the case of Vikash12, invited headlines while holding marriage as a sacrosanct institution incapable to take within its purview the offence of rape. Vikash, who allegedly drugged and raped his wife, was acquitted after the judge substantiated that Indian rape laws don’t apply to married couples. The woman in the present case claimed that her marriage was not legal because she had been abducted against her will, after being sedated by the accused and his father. She alleged that she was abducted by a man, who forced her to sign a marriage certificate while she was intoxicated, in a registry office situated in Ghaziabad. He then raped her on several occasions and threatened of dire consequences if she tried to complain to anybody. The accused denied all allegations. The Court thus ruled that, the prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.

In Emperor vs. Shahu Mehrab13, the husband was convicted under section 304A Indian Penal Code for causing death of his child-wife by rash or negligent act of sexual intercourse with her. In Saretha vs. T. Venkata Subbaih14, the Andhra Pradesh High Court 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”. What is sad to know is that all stranger rapes have been criminalized and all females, other than wives, have been given the right of privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse.

It may be concluded that India has a long way to go when it comes to its laws with respect to women. We have grown through more than 65 years of Independence, but actual independence would only be achieved when the women in the country receive a status above that of a mere transferrable object. They need to be treated as human beings, capable of liking and disliking things, capable of disagreement, capable of doing everything their male counterparts can do.

It is an acceptable argument that criminalizing marital rape would involve practical implementation difficulties; however, such difficulties arise with every kind of law whether related to curbing corruption, regulation of smuggling activities or using a helmet while driving. Criminalizing marital rape may result into a number of false reports and cases; however, this cannot be a valid argument for accepting the plight of women subdued under the weight of this heinous crime disguised in the form of their nuptial duty. The ratio of false cases to the actual number of cases involving perpetration of marital rape would be too less to accept an argument with respect to implementation difficulties.

Hence, it is recommended in this article that marital rape should be made an offence under the Indian Penal Code, punishable in a similar manner as rape outside marriage, saving a major population of the women in the country from the crime they are subjected to on an everyday basis.

1 Saurabh Mishra & Sarvesh Singh, Marital Rape — Myth, Reality and Need for Criminalization, (2003) PL WebJour 12.

2 PSA Pillai, Criminal Law, p. 723, (New Delhi: LexisNexis, 12th ed. 2014).

3 Id.

4 Hale, Matthew, History of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972)

5 Dr. Bhavish Gupta & Dr. Meenu Gupta, Marital Rape: Current Legal Framework in India and the Need for Change, 2013 GJLS, Vol. 1, No. 1, available at < http://law.galgotiasuniversity.edu.in/pdf/issue2.pdf> (Last accessed on April 7, 2015).

6 “To Have and to Hold- The Marital Rape Exemption and the Fourteenth Amendment”, 99 HARV. L. REV. 1255, 1256 (1986) p. 442.

7 Ratanlal & Dhirajlal, Indian Penal Code, p. 2108, (New Delhi: LexisNexis Butterworths, 2011).

8 Huree Mohan Mythee, (1890) 18 Cal 49; as cited in Id.

9 S. 376B, Indian Penal Code, (45 of 1860); as cited in Supra note 1.

10 172nd report of Law Commission of India on Review of Rape Laws, March 2000, para 3.1.2.1.

11 Sana Shakil, “Treat marital sexual abuse as rape: Court”, Mar 5, 2015, available at http://timesofindia.indiatimes.com/india/Treat-marital-sexual-abuse-as-rape-Court/articleshow/31434943.cms , (Last accessed on April 7, 2015): J. Kamini Lau (unreported).

12 Vikash case, delivered on 10 May, 2014, Virender Bhat, J.; (unreported).

13 AIR 1917 Sind 42; as cited in supra note 6.

14 AIR 1983 AP 356; as cited in supra note 6.

[/sociallocker]