“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female”
– Justice Arjit Prasayat, Former Judge of the Supreme Court
Introduction:
Humanity has created an obligation for both, men and women but women are bound to face humiliations in the patriarchal society. There are several offences against women such as sexual harassment, dowry death, domestic violence, rape and so on. Among all these, marital rape is the one which is not yet recognized as a crime which needs to be regulated immediately as it reduces the dignity of the women which is used merely for sexual gratification.
Marital rape is an offence to some extend and punishable under Section 376 of Indian Penal Code, 1860 but only when the wife is below the age of 15.[i] An essential condition to prove the offence of rape rests upon the consent of the victim but woman has to have sex with her husband just because of marital relationship irrespective of her consent, dignity and health. In this regard, the idea of rape becomes anti-ethical.
The recommendation to criminalize the marital rape was laid down by the Verma Committee headed by Justice J.S. Verma, Former Chief Justice of India who also suggested various amendments to India’s sexual assault laws but after long-standing demand of the public, committee stated that marriage is not a valid defence against sexual crimes like rape.
“The law ought to specify that marital or other relationship between the perpetrators or victim is not a valid defence against the crimes of rape or sexual violation,” the committee said in its report. The committee said the “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.”[ii]
Laws guarding Marital Rape in India:
By bringing the light of equality among husband and wife it is important to note that consent is also an important factor to sexual intercourse. Marriage is the sacred institution witnessing the bedrock of the society and these matters are considered to be very personal and the State is hesitant to interfere in that space so as to maintain privacy of the parties. Constitution is safeguarding against all the wrongs for the Indian citizens, but it also clearly demarcates what’s right from what’s wrong.
- Violation of Right to Equality
Article 14 of the Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.[iii] This article purely outlawed the class legislation and even did not conceptualize the reasonable classification in this context. Moreover, society is largely influenced by and derived from the thought process of merging the women’s identity from her husband. Therefore, law of equality shall be enforced in the patriarchal society which does not determine the reasonable classification.
- Violation of Right to Life
Article 21 ensures “person shall not to be deprived of his life or personal liberty except according procedure established by law”. The Supreme Court have vividly interpreted the ambit of this article which also guarantees rights to health, privacy[iv], dignity, safe living conditions and safe environment. In Govind vs. State of Punjab it observed that forced sexual cohabitation is a violation of right to privacy but this ruling do not recognized the rights of married women irrespective of her mental and health conditions.
Status of Marital Rape in other Countries:
There are 36 countries in the world still refuse to criminalize the marital rape in the country, including India, China, Pakistan and some other West Asian countries. It has been criminalized by about 150 countries as of 2019 which includes United State of America, United Kingdom, Ireland, Canada, New Zealand, Malaysia, Ghana, and Israel and many more which ultimately contributes to creating the social conditions where equality, choice and autonomy surrounding sexual relations in marriage and other intimate relationships can be accepted norms but establishing the legal recognition that sexual assault in a relationship is criminal is only a first and necessary step towards this larger goal.[v] In 1932, Poland being the first country has a law explicitly making it a criminal offence.
However, not all the states in the United States of America consider marital rape and rape the same because the laws vary according to the state. Some other states like Ohio, Michigan, and Nevada treat them antithetically. In Maryland, two individuals who have been separated by way of judicial separation and coerced sexual act between the two will be considered no different than rape. This part of the US law corresponds to that law of India. However, the twist takes place when two spouses are living together, if one of them coerces, threatens or uses force on the other, without the consent of the other spouse, then a valid prosecution takes place in the court of law.
In the United Kingdom, marital rape is expressly treated as a crime. Section 1 of the Sexual Offences Act, 2003 states that a person is said to have committed the crime of rape if the accused penetrates his penis into the vagina, anus or mouth of the person without their consent and on purpose. It doesn’t matter whether the victim resides is married to the accused or not. Many common law countries, Australia, South Africa and Canada followed the UK’s conception of criminalizing the marital rape and have abolished this exemption.
Conclusion:
In this changing time every law needs to go through a change as one is discovering new things everyday and human mind is constantly evolving and growing. Marital rape should be criminalized by the Parliament of India as an offence. It is high time to get through from this lacuna of criminal law at present defeating the constitutional provisions that provides women equality and autonomy. Therefore, the exemption of Section 375 of Indian Penal Code should be widely interpreted for the protection and dignity of married women too.
REFERENCES:
[i] Ritu Bisht, Marital Rape in India ready to let the law dive into the privacy of marriage by making marital rape an offence?, Medium,https://medium.com/the-%C3%B3pinion/marital-rape-in-india-is-india-ready-to-let-the-law-dive-into-the-privacy-of-marriage-by-making-baa92616f0fa
[ii] Marriage is not a valid defence against rape, says committee, The Hindu, https://www.thehindu.com/news/national/marriage-is-not-a-valid-defence-against-rape-says-committee/article4351148.ece
[iii] The Constitution of India, 1949
[iv] Justice K.S. Puttuswamy (Retd) Vs. Union of India
[v] The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi, Melanie Randall, Jennifer Koshan, Patricia Nyaundi, Bloomsbury Publishing, 19-Oct-201
