MARITAL RAPE: LEGAL LACUNAE AND NEED FOR REFORM
INTRODUCTION
“Consent is not a one-time event; it must be sought and respected every single time.”
“In a world striving for equality and justice, the shadows of marital rape often go unnoticed, concealed under the guise of marital obligation.”
~Hook
Marriage, the most peaceful connection between two unknown souls with feeling of love; is not this notion believed especially in India from long time. But did it give license to man to do anything. Thus, this has been the actual scenario if we particularly talk about India number of cases of domestic violence is reported daily, the biggest reason for which is non-consensual sexual relations thus leading to sexual assault. Marital Rape is the most critical situation in marriage and overall society where marriage is viewed as sacred relation which ought to be addressed at earlier in order to prevent social and legal stigma in society by legally recognising it under ambit of law but still, it has been hidden by martial obligations.
Despite the substantial progress in women’s rights and the recognition of consent as a fundamental principle in sexual relations, it is imperative to address the pervasive issue of marital rape globally. Numerous studies unequivocally demonstrate that a significant number of women experience sexual violence from their partners. However, many do not report these incidents due to fear, shame, or a lack of legal protection. The absence of specific legal frameworks addressing marital rape further exacerbates the issue, leaving victims with limited avenues for seeking justice and support.
Marital Rape not only exposes individual to prolonged physical and mental discourse but also has huge impact on marital relation between couples and in society. Although around 150 countries legalized marital rape including 50 states of U.S. but India has not yet legalized or criminalized marital rape, whereas the definition of Rape is given under Section 375 of IPC, 1860:
“Rape means unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by sex organ, other body parts, or foreign object, without consent of victim”
But this does not include non-consensual rape between the person when in marital relation which has become the biggest license for man to engage and force wife against her will to do sex and hence, result in marital rape. Marital Rape has caused adverse impact on physiological mindset of married woman which in turn led to mental stress, physical problems like PCOD, prone to HVY ultimately lack of good health and well-being. Repetitive forceful sex sometimes causes cervical cancer to prone victim. Rape trauma is yet another term when victim get vulnerable to repetitive sex against the body causing violation of Right of body under Article 21 of Indian constitution. But still, India does not recognize this within ambit of rape, for example: 17 year girl is married to 35 year old man but their non-consent does not come under rape, but if it happens with same girl by 17 year boy , it is crime termed as ‘Rape’ under Indian Penal Code,1860.
LEGAL LUCANEA
No definite legislation for marital rape have been formulated yet in India, although various petitions for criminalizing it has been filled in courts, which has also taken shape of debates in parliamentary sessions. Let’s trace it from very beginning:
1. In 1860 when Lord Macaulay enacted Indian Penal Code, no provision was made for criminalizing marital rape.
2. In 1983, IPC was amended to make provision for domestic violence act to safeguard the interest of woman from physical and mental torture in house.
3. In 1990s, various campaigns and movement took place advocating for protection for sexual assault from marital rape thereby commencing the movement for criminalizing marital rape in India.
4. Therefore, domestic violence act was passed in 2005 but it doesn’t contain any provision for marital rape.
5. In 2013, after Nirbhaya gang rape happened, Justice Verma Committee recommended enacting laws for criminalizing marital rape but government refused to enact this law.
6. But this gain prominence and attention again in 2020 when various petitions were filled and activist took their job to raise awareness and finally in 2021, court agreed to hear petitions.
7. If we talk about the present context, Bharatiya Nyaya Sanhita has come into force in India by replacing IPC from June 2024 which still contain the exception of marital rape under Section 63 Exception 2 whereas it was formulated to enact strong provisions in order to minimize and ultimately eliminating the crimes against woman but it contain the same provisions as IPC Section 375.
Doctrine of Coverture
The exception to marital rape was originally set at 10 years of age, but was raised to 15 in 1940 and to 18 in 2017. The exception was influenced by the Doctrine of Coverture, a colonial-era concept that stated that a woman loses her legal identity after marriage and becomes her husband’s property.
Doctrine of Coverture is an English law doctrine which limit the role of wife after getting married even to enter into contract without her husband permission in simple word, wife along with their children are considered as property of husband although in modern time, this doctrine is strapped down by country following English law jurisdiction like US, India and the like but still we observe this in many sphere of our life where woman are considered inferior due to patriarchal mind-set.
This situation is more evident form the case which a married woman filled in 2017 against her husband Mr. Hrishikesh Sahoo for assault, marital rape, cruelty exceeding such behaviour with a minor daughter due to which he was arrested under POSCO and domestic Violence act where he filled petition in Karnataka high court highlighting the exception for marital rape under section 366 under IPC, 1860 but the court held the recommendation of Justice Verma Committee which restrain marital rape and gave judgement against him . Subsequently, Sahoo appealed to the Supreme Court against the High Court’s ruling.
The Supreme Court delivered a split judgment: Justice Shakdher concurred with the view that marital rape should be equated with sexual abuse, emphasizing the fundamental principle of bodily autonomy and the necessity of consent. In contrast, Justice Shankar opposed this perspective, contending that marital rape is not recognized as a distinct offense within the institution of marriage, thereby allowing both consensual and non-consensual sexual acts without legal ramifications. This case underscores the ongoing legal and societal complexities surrounding the issue of marital rape in India, reflecting the urgent need for legislative reform.
LITERATURE REVIEW
The aim of the literature review is to do critically analyses of laws governing the Rape. Marital rape, which is defined as non-consensual sexual relations between spouses, is still a hotly debated legal topic in India and other countries. This literature study covers the legal frameworks, cultural views, and continuing controversies regarding marital rape, concentrating on its consequences for women’s rights and legal change.
CONTENT
1) SOCIETAL PRESPECTIVE
Marital rape is often an emotional and physical stigma to victim which always is vulnerable to wishes of some superior power which not the society but patriarchal mindset of people tend to consider. Howsoever, this has inflicted not the health of woman but raise question mark on mentality of society where a woman is believed inferior to man which provoke their spirit much higher for sexual assault and consider them machine for all works, provided that they married her to fulfill their necessities. Women are inherently educated to be subservient and peaceful in marriage, whereas males are schooled to be assertive and dominant. Women are associated with love and care. However, the majority of those who engage in sexual entertainment with violent themes are men.’ role socialists are of the view that marital rape is nothing but an expression of the traditional perceptions of sex roles.
2) VARIOUS TYPES OF MARITAL RAPE
Marital rapes are broadly classified into three categories:
• Battering Rape: This majorly covers all the marital rape because it not only cause sexual harassment but also physical violence to woman which make them vulnerable to atrocities, fear, mental and physical problems like stress, cervical cancer or may be unwanted pregnancy where they not only have to take care of their unborn baby but also has to fill physical needs of their husbands.
• Force only Rape: The violence in this type only occurs to get physically intimated against the will of wife by forcefully coercing her to do sex. Unlike battering, this does not cause any physical harm but only occur for sexual mean from wife.
• Sexual coercion by non-physical means: This occur when man verbally force woman to enter into sexual intercourse by making her realize about her duties of being a wife, this took until the unwilling wife enter into physical relation with husband. Although this type of rape occur due to non-physical force and verbal communication it is less severe than battering rape but cause lot of mental distress to married woman.
3) CONSTITUTIONAL PROVISIONS
Marital rape is not only morally and physically wrong but also does not fall under ambit of constitutionally as it cause violation of Article 14 and Article 21.
Article 14 of our constitution states that every citizen must be given equal rights but it does not deny reservation until and unless it has reasonable nexus. But this law, differentiate the provisions of rape applicable on married woman beyond or 18 years of age and the above.
Article 21 of our constitution states that every citizen must have right to privacy, food, life, liberty, and the like. But this law again does raise question on right to liberty by providing unequal access to married woman.
RESEARCH METHODOLOGY
Mixed approach combined with both qualitative and quantitative approach has been applied to raise an accurate result for studying legal lacunae which will help to comprehend various reforms which can be suitable for this situation. Legal research concerning the legal background, legal cases and judgments were analyzed along with taking into consideration quantitative data of marital rape which helped to formulate that nearly about 40 to 50 % marital rape are battering rape which include both physical and sexual torture to woman.
WAY FORWARD
Definite law and legislation must be formulated against marital rape to protect woman from sexual violence but before that social change must take place mentally in society by changing looks and thinking about the patriarchal structure of society to physically and mentally get rid of any torture within household. Thereby stringent laws must be made by government and recommendation given by Justice Verma Committee must be taken into consideration, if not they another committee must be formulated under the former action plan to achieve the desired results. This will not only reduce the incident of marital rape but also other heinous crimes which woman are prone to in everyday life.
CONCLUSION
While celebrating the Amrit Mahotsav-78 years of Independence, India is still in the process of getting shaped as a fully developed nation. All pervasiveness of marital rape in the country may be imagined by slow pace of improvement of situation of woman. Though the institution of Government and Judiciary instilled hopes for a safety for woman in future, the fight against marital rape is very important and immediate. Loopholes and weaknesses in the current exception under Bharatiya Nyaya Sanhita under Rape section must be rectified to fight against atrocities against woman effectively.
But both the Judiciary and Government has taken step back for formulating any law regarding marital rape, former emphasizing it to be duty of government and latter contending it against the institution of marriage. Thus, there is need for legal discourse which must be taken considering both the socio-physical impact on the health of woman and society.
AUTHOR: Saloni Rani, student of Rajiv Gandhi National University of Law, Punjab
REFERENCE
1. Criminalisation of marital rape in India. Available at: https://nujslawreview.org/wp-content/uploads/2018/01/11-–-1-–-Raveena-and-Pradyumna.pdf (Accessed: 10 October 2024)
https://articles.manupatra.com/article-details/Marital-Rape-and-Law
2. Criminalisation of marital rape in India. Available at: https://nujslawreview.org/wp-content/uploads/2018/01/11-–-1-–-Raveena-and-Pradyumna.pdf (Accessed: 10 October 2024) https://nujslawreview.org/wp-content/uploads/2018/01/11-%E2%80%93-1-%E2%80%93-Raveena-and-Pradyumna.pdf
3. Marital rape: A glaring lacuna in India’s rape laws. Available at: https://ijpsl.in/wp-content/uploads/2021/01/Marital-Rape-A-Glaring-Lacuna-in-Indias-Rape-Laws_Varada-B.pdf (Accessed: 10 October 2024).
https://ijpsl.in/wp-content/uploads/2021/01/Marital-Rape-A-Glaring-Lacuna-in-Indias-Rape-Laws_Varada-B.pdf
4. Marital rape: A glaring lacuna in India’s rape laws. Available at: https://ijpsl.in/wp-content/uploads/2021/01/Marital-Rape-A-Glaring-Lacuna-in-Indias-Rape-Laws_Varada-B.pdf (Accessed: 10 October 2024).
https://ijpsl.in/wp-content/uploads/2021/01/Marital-Rape-A-Glaring-Lacuna-in-Indias-Rape-Laws_Varada-B.pdf
5. Sacred violence: India’s marital rape exception. Available at: https://journals.tulane.edu/ncs/article/view/3885/3635 (Accessed: 10 October 2024).
https://journals.tulane.edu/ncs/article/view/3885/3635
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