Chanchal Dhakad | National Law Institute University | 23rd October 2019
INTRODUCTION
Marital rape is a disgraceful offence that has scarred the trust and confidence in the institution of marriage. Since inception, this term has led to hue and cry in India but has gained more pace recently. However, criminalization of marital rape still seems to be a distant dream in India, anticipating the bizarre and ignominious behavior of the present government. The harsh realization is that a huge chunk of women population has been facing the brunt of the non-criminalization of this ruthless practice. This is testimony to the fact that we live in a society of hidebound sentiments that echoes our innate societal misogyny, which over the years has brought women to the heels.
This issue being unsettled and debatable, prompts us to delve into the realm of history of criminal law and its impact. Before that, it is pertinent to know what is Marital Rape? 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 a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.”[1] When the word “marital” adds to the word “Rape”, scenario changes altogether. But why? Well, the reason is pretty simple. Marriage in India is legal license for legalized prostitution. It means that marital sexual intercourse done by husband with his wife without her consent or against her will or forcefully or by giving stupefying substance[2] or while intoxicated or while she is pregnant or with social coercion (which is prevalent in India) is a lawful act in India.
Generally speaking, in Indian contact, we all know that most of the boys are virgin till marriage, with no sexual education done but are left to resort to information they gather from books, magazines, youth counselors, and through pornography, with its increasing accessibility in recent times. Those exposed to sexually implicit content on the television and internet are more likely to initiate early lust, desires and develop fantasies. Viewing of both the nonviolent dehumanizing and the violent materials results in greater likelihood of engaging in rape and likelihood of engaging in coercive sexual acts after marriage as marriage gives legal license to do what one had seen. In doing so they tend to treat their wives more or less like prostitutes forcing them upon their wives on account of their irrevocable consent given by them at the time of their marriage. Irrespective of what she is going through may be periods, pregnancy, depression, agony or some health issues she is made to do acts that are not just dehumanizing but also loathsome, outraging her modesty and bereaving her of her dignity.
Just imagine the situation of a women in India from childhood. Welcomed crestfallenly, upbringed despondently, treated unfairly, regarded as part of another future family after marriage, considered a maid to help mother, given less amenities and finally forced into marriage to satisfy her husband. After marriage she is made to take a glass of milk with her to satisfy a stranger she doesn’t know and is instructed to be submissive without infuriating him. With all the exquisite pillars of Indian romantic paternalism like female feticide, discrimination, dowry, domestic work with violence and marital rape, she is reared in patriarchy. Like other forms of domestic violence, marital rape is about exerting power and control over one’s partner’s body and integrity. It is a form of partner rape, domestic violence, intimate partner sexual aggression and sexual abuse. With the passage of time, education, development in civil-politial rights and socio-economic conditions, the situation has undergone a sea change. A law which could have been justified at the time of its enactment with the passage of time may become outdated and discriminatory with the evolution of society and changed circumstances. What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic[3].
The historical background in which Section 375[4] was framed, which subjected women entirely to the guardianship of their husbands and considered women as mere chattel, is no longer relevant in contemporary society. The exemption given to marital rape, as Justice Verma[5] noted, “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Justice Indu Malhotra held[6] that:
The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone. The legislation that perpetuates such stereo-types in relationships, and institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.
Lord Keith in R v. R[7] declared: –
Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.
Justice Chandrachud held: –
Marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy of one spouse to another, considers a married woman the possession of her husband: a passive entity, bereft of agency to determine her course of life. This anachronistic conception of both, a woman who has entered into marriage as well as the institution of marriage itself, is antithetical to constitutional values of equality, dignity and autonomy. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality.
IRREVOCABLE MARITAL CONSENT
Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale’s proposition[8] involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable. In today’s time however, the status of women, and the status of a married woman, in our law have changed quite dramatically. A husband and wife are now for all practical purposes equal partners in marriage and both husband and wife are tutors and curators of their children. A wife is not obliged to obey her husband in all things nor to suffer excessive sexual demands on the part of her husband[9]. Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances. A marriage under Hindu law is a sacred covenant where promises are made to each other by groom and bride. Bridegroom promises to look after her and the bride promises to be faithful to him. These inherent differences and biases towards women are now regarded as her consent. Actually, she doesn’t specifically consent to her being ravished in bedroom but the so-called marriage institution assumes such consent. The transfer of gift that is kanyadan is done by parents of bride, to bridegroom justifying the status of women as mere chattel. The mere promise of being faithful is considered to be irrevocable consent of sexual intercourse.
The Indian courts should never embrace the notion of a general consent to sexual intercourse given once and for all on marriage by either spouse. Each spouse has a mutual right to sexual intercourse provided the right be exercised reasonably, subject to the health of the spouses and the exigencies of family life. It is a right to be exercised by consent. It is a right the exercise of which is intended to foster and maintain connubial love, not to be an occasion of abuse and degradation. Women who willingly and knowingly tie marital knot are not accepting the risk of being raped but are accepting the risk of consensual sexual intercourse. A woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion should have no place in our legislations[10].
Sexual autonomy constitutes an inviolable core of the dignity of every individual. It is not lost in masquerade of marriage. It is an inalienable right of a married women. Justice Chandrachud held[11]: –
Curtailing the sexual autonomy of a woman or presuming the presence consent to unwarranted sexual acts once she enters a marriage is antithetical to constitutional values. The right to privacy depends on the exercise of autonomy and agency by individuals. Identity of a women is personal to her and does not get submerged as a result of her marriage.
Individuals in a relationship in a marriage, have a legitimate expectation that each will provide to the other the same element of companionship and respect for choices. Implied consent to intercourse is not irrevocable, as separation or mutual divorce demonstrates that such consent can be withdrawn, and that in these circumstances a relevant charge of rape may lie against a husband[12]. An implied consent to engage into sexual activity does not mean consent to being inflicted with sexual violence.
Consent differs from time to time. There cannot be an irrevocable consent which can’t be taken back. Consent for cohabiting, intimate relations, caring and being faithful doesn’t include consent to use her as a tool for sexual satisfaction. It is important to recognize that reproductive choices of a women can be exercised by her to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that if she is unwilling to participate in a sexual activity for whatever reason, her choice needs to be respected. She has absolute right over her choice to indulge in sexual act or not.
“It is time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”[13]
EXEMPTION NOT ONLY FROM SEXUAL INMTERCOURSE BUT ALL SEXUAL ACTS
Sexual intercourse means dreadful experience for them to do these acts that too forceful, unwillingly without their consent. It has a severe psychological impact on women, outraging her modesty which is very personal to her, leaving her in an utter state of disbelief, breaching her trust and promises made during marriage and leaving her helpless in disbelief in the legal system to provide her with a legal remedy. One of the purposes of marriage is procreation involving sexual vaginal – penal intercourse but now since the ambit of sexual intercourse is widened including non-reproductive sadomasochistic sexual acts just for the personal gratification of husband without regard to the consent and enjoyment of wife, the position of wife is further deteriorated. Now to rectify this legislative blunder the whole exception needs to be repealed to ameliorate the situation of married women in India so that they can enjoy their sexual autonomy provided to them by the constitution of India.
HACKNEYED JUSTIFICATION GIVEN BY UNION AGAINST DELETING OF EXCEPTION OF 375
Misuse of the penal provision to harass innocent husbands
The safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false marital complaints, and any person who institutes untrue and malicious charges, can be made answerable in accordance with law. However, this fear, by itself, is not sufficient to just ignore the marital rape.
Destroying the institution of marriage
Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable[14]. A divorce may destroy a marriage but does it have the potential of destroying the ‘institution’ of marriage? A judicial separation may dent a marital relationship but does it have the potential of destroying the ‘institution’ of marriage or even the marriage? Can it be said that no divorce should be permitted or that judicial separation should be prohibited? The answer is quite obvious. Marriage is an institution which casts upon a husband an obligation to respect a wife’s personal integrity and dignity; it does not give the husband a power to violate her personal integrity and destroy her dignity. It would be impossible to preserve, much less to foster, the institution of marriage as an exclusive union of man and wife for life if it were otherwise.
Marriage as private affair
Justice Chandrachud in Adultery case[15] has himself not accepted this contention raised by the Union of India. He held: –
Remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. Any legislation which results in the denial of these Constitutional guarantees to women, cannot pass the test of constitutionality. The delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality. It is the duty of this Court to break the stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’.
State has long regulated various aspects of the institution of marriage, by determining the
age when an adult can enter into marriage; it grants legal recognition to marriage; it creates
rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody,
guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole like marital rape does.
ABBETING BRIDAL TRAFFICING
When a third party like pimp or the subsequent husband for the purpose of exploitation which could be deciphered if he uses force, threat, by means of abduction, by fraud or deception abuse of power or by inducement transfers, harbours, transports, or receives will be guilty of trafficking. But traffickers are using marriage as an alibi to rape girls in the first instance, to break them, before selling them to pimps and brothel owners. This first rape, say campaigners, is a method to control the victim. By robbing girls of all dignity, it is easier to trap them in sex work where they are shamed into submission. They make girls to sign on marriage documents and when she realises that she is being raped she has no legal recourse left. They cannot claim the remedy under Section 366 IPC as mostly because of their poor background they consensually marry some random rich people. As Section 366 require “against her will”. Subsequently after marriage they are raped or sexually assaulted by their husbands which breaks them into living like prostitutes and consenting to be sold. This legal immunity from raping the wives is encouraging these traffickers who use this legal loophole to exploit married women. The wording of the section prohibits “illicit intercourse” i.e. sexual intercourse between persons not united by marriage or by any union or tie constituting a quasi-marital relation, which exempts marital sexual intercourse from its purview.
Other remedies like in Sections 370A (2) also could not be availed by women who willingly married due to the poor family conditions, as they are not trafficked in the first place but during marriage, they are subjected to sexual exploitation which ultimately results in their consenting to further exploitation. Sections 372 and 373 specifically deal with the minors not adult married women. In the veil of marital status women are exploited with no legal remedy and if available also with meagre punishments. Marriage is used as an initial stage to dissuade, discourage, oppress and making them vulnerable for further exploitation. With the removal of this legal immunity traffickers could be deterred from using marital sexual exploitation as a weapon to sexually exploit women in India.
CONCLUSION
Marital rape as an exception to rape even though amended several times continues to exist because of the prevalent gender discrimination, legislative despotism, male chauvinism and widespread patriarchy in Indian society. By not repealing the exception we continue to support and adore the parochial vestiges of the colonial rule which favours the top male legislators. We still regard women as chattel without an individual person who has her sexual decisional autonomy to say no or yes as she wishes. Even the britishers regard this principle of coverture as anachronistic. Lord Keith in R v. R declared: –
“marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it”.
But with the recent judgements of Hon’ble Supreme Court of India like adultery and right to privacy, the position of women has changed from a mere chattel to an independent identity even after marriage. Justice Chandrachud held[16] that
“privacy began with the human body, and that at the heart of the right to privacy was the idea of decisional autonomy – that is the right of each individual to decide how, and to what end, her body would be used. Just as individuals cannot sell themselves into slavery, nor can they be deemed to have waived their right to decisional autonomy upon marriage”.
Our inability to criminalize marital rape amounts to our lawmakers acting as accomplices to sexually exploit married women under the guise of ‘institution of marriage’. Judicially there is no point left in not prosecuting husband for behaviour, which, if done to a stranger, would be criminal.
There are a lot of anomalies present in IPC with regard to basic assumption of exempting marital unconsented sexual intercourse or sexual acts which is the irrevocable marital consent to submit sexually, physically and emotionally to your husband. Anomaly could be found in section 354 and 375. While a husband could be held under outraging the modesty of a women under section 354 for doing perverted sexual acts even in private, not acceptable to wife in specific and society in general such as cunnilingus and fellatio as these acts are regarded as indecent and against the reproductive sexual intercourse but could not be held for a graver offence like Rape. But he cannot be held under section 375 as he is exempted from all sexual acts no matter how loathsome or repulsive, they may be.
Criminalizing marital rape, therefore, is not about the State invading the bedroom, but about ensuring that the principles of consent, dignity, and autonomy, apply as much within the bedroom as outside. In striking down the marital rape exception, the court will not be creating a new crime, or trespassing into the domain of Parliament, it will be holding that an artificial immunity from criminal law, created by an 1860 law, can no longer survive constitutional scrutiny. Supreme Court held that;[17]
No one can compel a woman to love. She has the absolute right to reject. In a civilized society male chauvinism has no room.
The delicate and reverent nature of sexual intimacy between a husband and wife excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a participation in the mystery of creation. It is a deep sense of spiritual communion. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It is an expressive interest in each other’s feelings at a time it is needed by the other and it can go a long way in deepening marital relationship. When it is egoistically utilized to despoil marital union in order to advance a felonious urge for coitus by force, violence or intimidation, the same should be made punishable to protect its lofty purpose, vindicate justice. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed. The Husbands may then begin to recognize that marital rape is wrong. Recognition coupled with the criminal punishment should deter the husbands from raping their wives. Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.
[1] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) HARVARD LAW REVIEW, 1256 (1986).
[2] The Indian Penal Code, 1860. §375.
[3] Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222.
[4] Supra note 2.
[5] JUSTICE J.S. VERMA COMMITTEE, Report of Committee on Amendments to Criminal Law (January 23, 2013).
[6] Joseph shine vs uoi (2019) 3SCC39.
[7] R v R [1991] 3 WLR 767.
[8] MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN (Philadelphia, Robert H. Small 1st Am. ed. 1847) (1736).
[9] Masiya vs. Director of Public Prosecutions Pretoria (The State) and Another (10.05.2007 – SACC): MANU/SACC/0027/2007.
[10] Joseph Shine,supra note 8.
[11] Navtej Singh Johar v. Union of. India, (2018) 1 SCC 791.
[12] R v. L [1991]HCA 48.
[13] Nimeshbhai Bharatbhai Desai v. State of Gujarat AIR 2004 SC 3566.
[14] Joseph shine, supra note 8.
[15] Joseph shine, supra note 8.
[16] K. S. Puttaswamy v. Union of India, (2017)10SCC1.
[17] Pawan Kumar v. State of Himachal Pradesh AIR 1983 AP 356.
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