Mohd Ayan & Wasia Naqvi both second year law students of Jamia Millia Islamia, New Delhi analyzes the implications of non-criminalization of marital rape in India.

Introduction

“Mother, he raped me!” uttered the girl dejectedly, “But he is your child’s father!” whispered her mother, and tears welled up in her eyes as she anticipated that at least her mother would understand her plight. Well, this would not have been the conundrum if marital rape had been criminalized in India.

Marital Rape or Rape in marriage is a serious societal issue that has received very little importance over time, and it is a prevalent form of violence against women. It is unwanted intercourse obtained forcefully without the consent of the female partner. Over the decades, the marital rape exemption is recognized and heard of as a crime. Confident analysts have criticized the immunity as it violates the “Law of Equity.”[1] With the accumulation of evidence and facts, it is observed that Marital Rape is not just a crime but also a persistent problem in a large number of marriages.[2] 

Historical Context of Decriminalization of Marital Rape

Dated back to the 18th Century concept and the “Unities Theory” laid down that rape is a property crime committed against another person, which meant that marital rape does not exist as one cannot commit a crime against himself[3] and the concept of ‘wifely duty’ is based on the assumption that the wife has to satisfy her husband sexually.[4] The reason for the non-criminalization of marital rape could be traced back to the British colonial rule in the Victorian Era.[5] Back in the 1860’s when the Indian Penal Code was drafted, a married woman was not considered a legal entity and had no rights that are now guaranteed to her. Exemption two that excludes women from taking action against their husbands for rape is primarily influenced and derived from the “Doctrine of Converture” that demands the merger of a woman’s identity with  her legally married husband.[6]

Current Indian laws are the adoption of English laws and Victorian regulations. The marital rape exception to the IPC’s definition of rape is based on Victorian patriarchal norms that even forbids married women to own property, but with modernization, Indian laws have been amended providing married women with an exclusive and independent legal identity and the modern age much of jurisprudence is concerned with women’s protection but still fails to recognize marital rape as an offense.

Current legal framework and the need for change

Rape is defined and codified under section 375 of the Indian Penal Code (“IPC”)[7], which includes all forms of sexual abuse, including non-consensual intercourse with a woman. However, there is an exemption to section 375 which articulates that non-consensual intercourse with a wife, above 15 years of age, would not amount to rape. Later, in Independent Thought v. Union of India[8] the Supreme Court of India has increased the age of consent for sexual intercourse in marriage to 18 years. Before the verdict, a husband’s sexual act against her wife aged above 15 years did not amount to any offense. The court also asked for legal reforms to prevent and address violations of women’s rights against child marriage. However, the court refrained from dealing with the marital rape issues of a woman aged above 18.

Under the current Indian society, after entering into a marital relationship, a wife is deemed to consent to sex. If women’s rights are taken away after marriage, then marriage itself would violate the fundamental rights guaranteed under Article 14 & Article 21[9] in the Constitution of India. In State of West Bengal v. Anwar Ali Sarkar habib[10], the Supreme Court held that under Article 14 of the Constitution of India, any classification is subject to reasonable examination that could only be passed if it draws a rational connection for the goal that the act tries to achieve. Excluding a husband from punishment is utterly contrary to the very purpose. In short, the consequences of rape are the same whether the woman is married or not. It can be noted that there are exceptions made but no rigid laws regarding marital rape.

Statistical analysis

According to the National Crime Record Bureau report, in 2015, in every two minutes, a case of crime against women is reported, and most of them were committed by their husbands.[11] Following this, according to the UN Population fund report[12] two-third of married women in the age group of 15-50 in India had been subjected to forced sex, physical violence, torture, and dowry demand. Poland was the first country to criminalize marital rape in 1932 and Australia being the first common law country to criminalize marital rape. Since the 1980s, many other countries have criminalized marital rape. Some of these countries are Canada, United States, Malaysia, and South Africa.[13] Thailand criminalized it in 2007[14] while South Korea and Rwanda in 2009. The criminalization of marital rape now indicates that it is a violation of human rights. In India, rape in a marriage is still not considered as a violation of human rights.

Effect on victim

Marital rape has both psychological and physical impact on the victim.[15] It was observed through the research[16] that the victims of Marital Rape experience emotional pain, nightmares, and inability to trust and becomes fearful and tends to blame themselves for the rape. Husbands forcefully make their wives pregnant without their consent and force them to have a child when she is not ready for it.  In Suchita Srivastava v. Chandigarh Administration[17] the Supreme Court of India held that the right to reproduction is also a dimension of the right to personal liberty guaranteed under Article 21 of the Indian Constitution. It is analyzed that most of the women who are victims of marital rape are even experienced physical violence repeatedly.[18] Victims suffer from soft tissue injuries, bumps, tenderness, and abrasions. Researchers have shown that the victims suffer from psychological problems and disorder in which the most prominent ones are depression and post-traumatic stress disorder symptomatology.

Effect on children

Marital rape has a devastating and everlasting effect on the children. Personal accounts of marital rape victims suggest that children often witness sexual assault, screams, and plight during rape. In Oregon v. Rideout[19], in 1978, John Rideout was accused of raping his wife Greta Rideout in front of his two-year-old daughter. He was found guilty of first-degree rape. He was convicted and was sentenced to 16 years in prison. It was the first case in the United States that led to the criminalization of marital rape. Studies show that children who witness physical abuse between their parents in childhood are more likely to be involved in the same act as adults.[20]

Suggestions and remedies that can be available to a marital rape survivor 

It’s high time, marital rape should be criminalized with a rigorous punishment. It should be declared as a ground for divorce in matrimonial laws. Marital rape cases must follow the standard rape protocol, which includes careful documentation and legal instructions. Victims of marital rape should receive medical, mental, and social assistance services for addressing post-trauma difficulties. If an FIR is filed, police officers must immediately help transport the victim for a medical test. Simultaneously, we need to educate and empower our women, to make them free from the shackles of dependence.

Conclusion

Rape is less of a sexual offense than an act of aggression aimed at humiliating and outraging a woman. The doctrine of marital exclusion in rape has represented that a married woman is effectively deprived of her right to bodily self-determination concerning personal choices, that is, consent to sexual intercourse. Patriarchal power structures view marriage as a license to legitimate unwanted sex. There is a complete denial of a woman’s self-worth. Marital rape also has devastating effects on the children, which may harm their future. Efforts should be made to provide the victims with health as well as social service assistance. A crime so brutal should be criminalized.   


Mohd Ayan & Wasia Naqvi are second year students from Faculty of law, Jamia Millia Islamia, New Delhi


[1]All Answers Ltd. November 2018, The Law of Equity, Law Teacher, (accessed 16 August 2020). available at: https://www.lawteacher.net/free-law-essays/property-trusts/the-law-of-equity.php?vref=1 

[2]Raquel Kennedy Bergen, Marital Rape: New Research and Directions, VAWnet: The National Online Resource Center on Violence Against Women, available at: https://vawnet.org/sites/default/files/materials/files/2016-09/AR_MaritalRapeRevised.pdf

[3]Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of  Marital rape in India: Understanding  its constitutional, cultural and legal impact, NUJS Law Review, available at: http://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf

[4]Sumedha Choudhary,  Why  criminalization of marital rape  is still a distant dream in India,  Business Standard, (accessed 16August, 2020)  available at: https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html

[5]Jill Elaine Hasday, “Contest and Consent: A Legal History of Marital Rape,” University of Chicago Law Occasional Paper, No. 41(2000) available at: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi article=1008&context=occasional_papers

[6]Keri Engel,  The law of Converture: Why a women called by her husband’s name?,  Amazingly women in history, available at: https://amazingwomeninhistory.com/law-of-coverture-why-call-a-woman-by-her-husbands-name/

[7]The Indian Penal Code, 1860, section 375

[8]Independent Thoughts v. Union of India (2017) 10 SCC 800

[9]Indian Constitution, art. 14 & art 21

[10]State of West Bengal v. Anwar Ali Sarkar habib (1952) 1952 AIR 75

[11]NCRB, Crime against women (2015) (accessed 16 August 2020)  available at: https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%205-15.11.16_2015.pdf 

[12]UNFPA and International Centre for Research on Women, Violence against women in India, UNPFA India (2004) available at: https://india.unfpa.org/en/publications/violence-against-women-india

[13]Vedant Saraf, Marital Rape should be criminalized, Lawnomy, available at: https://www.lawnomy.com/post/marital-rape-should-be-criminalized

[14]Women living under muslim laws (2007) available at: http://www.wluml.org/node/3905

[15]Chabra, Smrithi & Rai, Devdas & Chacko, Kevin. (2014). The emotional and psychological aspects of rape. Journal of Evolution of Medical and Dental Sciences. 3. 9001-9009. 10.14260/jemds/2014/3159.

[16]Bennice, Jennifer A., and Patricia A. Resick, “Marital Rape: History, Research, and Practice.” Trauma, Violence & Abuse 4, no. 3 (2003): 228-46 (accessed August 16, 2020) www.jstor.org/stable/26636357.

[17]Suchita Srivastava v. Chandigarh Administration (2009) AIR 2010 SC 235

[18]Patricia Mahoney and Linda M. Williams, “Sexual Assault in Marriages” Prevalence, Consequences, and Treatment of Wife Rape. Partner Violence” A 20 year old Literature review and synthesis (accessed August 16, 2020)  http://www.ncdsv.org/images/nnfr_partnerviolence_a20-yearliteraturereviewandsynthesis.pdf

[19]Oregon v. Rideout U.S.(1979) ;26(1):49-56.

[20]Patricia Mahoney, supra note 17.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

One thought on “THE CONUNDRUM OF NON-CRIMINALIZATION OF MARITAL RAPE IN INDIA

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s