ABSTRACT
The non-consensual intercourse committed by the husband with his wife is termed as marital rape and it has been creating turbulences in the most recent times. We are living in a Indian society were marriages are considered as a sacrament and such sorts of allegations by the wife cannot be proved in the court of law and moreover this act of sexual abuse committed inside a marriage which is a domestic institution should not be termed as ‘’rape’’. There are several questions raised when this issue was heed by the Hon’ble Apex court the first and foremost question is that how can evidence be gathered for marital rape in India? One of the main reasons given by the Union for not recognising marital rape as a criminal offence in India was determining the value of evidence and eventually what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his wife.
INTRODUCTION
When one mentions about the term rape, the immediate tendency is to think of someone who is a stranger, a malicious person. Usually one does not think of rapes in the context of marriage, since marriages are considered as a sacrament and in India every religion has its own personal laws, accordingly marriages are performed as per rituals attached with their religion. Marital rape cannot be treated under the ambit of Section 375 of Indian Penal Code, 1860. After all, how can a man be accused of rape if he is availing his conjugal rights and eventually law did not conceptualise it as an offence against the person of the woman, rather, marital rape is conceived as an instrument for protecting a man’s property from the sexual aggressions of other men. Therefore, the act of rape committed within marriage as not been recognised as a criminal offence in India. The foundation of marital rape exemption can be traced back to statements made by Sir Matthew Hale, Chief Justice in 17th Century England, Lord Hale wrote that: “the husband cannot be guilty of rape committed by himself upon his lawful wedded wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract’’. Being a former British colony, India adopted the common law system which recognised Hale’s ‘’Implied Consent theory’’ this started at the time of the marriage and continued for the entire course of the marriage, and such consent was deemed irrevocable by Lord Hale. This established that once married, a woman does not have the right to refuse sex with her lawful husband. Due to construction of the sex as a woman’s duty within a marriage, there is always a presumption of her consent. India is one of the 36 countries in the world does not recognise marital rape is an offence because it is protected by the legislature by giving exception clause to section 375 of the Indian Penal Code. This clearly demonstrates the intent of the legislature that they did not want to term the act as rape which is committed inside an institution of marriage because this act of sexual abuse committed inside a marriage which is a domestic institution should not be termed as rape and the husband should not be branded as a ‘’rapist’’ for any cause.
MARITAL RAPE-AN UNDERSTANDING IN WIFE’S PERSPECTIVE
Marriage is an institution which presupposes the consent of the two spouses to live together and sexual intercourse is the basic ingredient of a happy marriage this was held in the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511. There is deep understanding, commitment, faith and trust which is the bedrock upon which marriages subsist. There are numerous times when on one side there is some disagreement and the other takes recourse to persuasion. Thus, at times being persuasive it may not be misinterpreted on the touch stone of criminality. In the case of Sunder Lal Soni v. Namita Jain, AIR 2006 (MP) 51, held that in this backdrop that it must be understood that having a healthy sexual relationship goes a long way in building a happy married life. The act of sexual abuse committed inside a marriage which is a domestic institution should not be termed as ‘rape’. The Prevention of Women from Domestic Violence Act, 2005, refused to use the term rape for the act of sexual abuse against a wife. This clearly demonstrates the intent of the legislators that they did not want to term the act as rape inside an institution of marriage but still provided remedy for married women. In a relationship of marriage, if both the spouses have solemnised the marriage fully by their choice and by giving the consent to be married, it implies that the marriage includes a conscious decision to keep sexual relations with her husband as marriage without sex is insipid this was held in the case of Shashi Bala v. Rajiv Arora 188 (2012) DLT 1. The Hon’ble Apex Court in the case of Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, while referring to the judgment of Rita Nijhawan v. Balakrishnan Nijman, (1973) D.L.T. 222, where the Court observed: “Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It must be recognised that nothing is more fatal to marriage than disappointment in sexual intercourse.” Before removing the protection granted to husbands, there is a need to look into the issue as a whole. A person when gets married be it wife or a husband loses his/ her right to perform the sexual act with anyone other than the spouse this was held in the case of Pinakin Mahapatray Rawal v. State of Gujarat (2013) 10 SCC 48. So, when a person is getting married, he or she is giving consent to the spouse to have sex and if sexual assault is inflicted upon the wife then there are laws already in place. There are two corresponding rights involved currently i.e. On one hand there is a right to say no to a sexual intercourse to the spouse and on the other hand there is a right to have a conjugal relationship between the spouses. The two rights have to go hand in hand so only a happy marital relationship may sustain during the lifetime of the spouses but in no circumstance a husband should be branded as a “Rapist”.
MARITAL RAPE LAWS IN INDIA
First to begin with the exception clause 2 of Section 375 of Indian Penal Code which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’’. According to the Indian Government, marital rape cannot be applied in India, as marriage is considered sacred. The Minister of State for Home Affairs, Hari Bhai Parathi bhai Chaudhary in the year 2018, stated that the marital rape could not be criminalized and further added that there is no proposal to make it a criminal offence. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, such as education, illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat the marriage as a sacrament etc”. Eventually, the Law Commission of India, while making its 172nd Report on review of rape laws did not recommend for criminalization of marital rape and hence presently there is no proposal to bring any amendment to the IPC in this regard. The Same act was amended in 1983 to make way for the criminalization of spousal rape during the period of judicial separation under section 376-B of Indian Penal Code and Section 498A of the Indian Penal Code provides a husband or someone who is the relative of the husband inflicts cruelty on the woman, shall be punished and will attract imprisonment for a term which may extend to a maximum period of three years and shall also be liable for fine. The meaning of cruelty for the purpose of this section is that any wilfull act which is of the nature that can drive the women to commit suicide or cause grave injury or danger to life or to mental or physical health and it also includes harassment of the women where such an act is done to coerce her or any person who is related to her to achieve or meet unlawful demands. So, there are sufficient laws existing in the current legal framework and the married woman has remedy available if she is sexually abused by her husband and there is no need for criminalizing it.
PREVENTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Section 3 of the PWDV Act, 2005 states that any act or omission that has the capability to inflict harm, injuries or jeopardizes the health or has the tendency to cause abuse of physical, sexual, verbal and emotional in nature to the married woman. Looking at the penal and relief aspect of the matter referring to Section 18 of the PWDV Act, provides that the magistrate after giving a fair chance of hearing to both the aggrieved person and the respondent and then if the Magistrate is satisfied on a prima facie level that a case of domestic violence could be made out then he would pass an order in favor of the aggrieved party for protection from any act of domestic violence or aiding any act of domestic violence. It is also provided that protection order, interim and monetary reliefs are passed for recourse and if there is non-compliance on part of the husband then he shall be booked with imprisonment which may extend to one year or with fine which may extend to twenty thousand rupees or both as per Section 31 of the Act.
JUDICIAL PERSPECTIVE OF MARITAL RAPE
Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress vs. Haree Mythee (1891) ILR 18 Cal 49) observed that in case of married women, the law of rape does not apply between husband and wife after the age of 15. In Saritha vs. T. Venkata Subbaih (AIR 1983 AP 356), 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”. The Hon’ble Supreme Court, in the case of State of Maharashtra v. Madhukar Narayan Mandikar AIR 1991 SC 207, it has referred to the right of privacy over one’s body. In this case it was decided that a prostitute had the right to refuse sexual intercourse. 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. The right to privacy is not lost by marital association. The Delhi High Court in the case of RIT Foundation v. Union of India W.P. (Civil) 284 of 2015, held that marriage does not mean all time consent for sexual relations and in a relationship like marriage, both men and women have a right to say ‘’no’’ to physical relations, further stressing that being married does not mean the wife is always ready for sex. Consequently, the Hon’ble Apex Court in the case of Independent thought v. Union of India (2017) 10 SCC 800, held that Sexual intercourse with a minor wife is rape. In this case division bench of the apex court clearly stated that criminalizing marital rape it would breakdown the whole institution of marriage.
CONCLUSION
ABSTRACT
The non-consensual intercourse committed by the husband with his wife is termed as marital rape and it has been creating turbulences in the most recent times. We are living in a Indian society were marriages are considered as a sacrament and such sorts of allegations by the wife cannot be proved in the court of law and moreover this act of sexual abuse committed inside a marriage which is a domestic institution should not be termed as ‘’rape’’. There are several questions raised when this issue was heed by the Hon’ble Apex court the first and foremost question is that how can evidence be gathered for marital rape in India? One of the main reasons given by the Union for not recognising marital rape as a criminal offence in India was determining the value of evidence and eventually what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his wife.
INTRODUCTION
When one mentions about the term rape, the immediate tendency is to think of someone who is a stranger, a malicious person. Usually one does not think of rapes in the context of marriage, since marriages are considered as a sacrament and in India every religion has its own personal laws, accordingly marriages are performed as per rituals attached with their religion. Marital rape cannot be treated under the ambit of Section 375 of Indian Penal Code, 1860. After all, how can a man be accused of rape if he is availing his conjugal rights and eventually law did not conceptualise it as an offence against the person of the woman, rather, marital rape is conceived as an instrument for protecting a man’s property from the sexual aggressions of other men. Therefore, the act of rape committed within marriage as not been recognised as a criminal offence in India. The foundation of marital rape exemption can be traced back to statements made by Sir Matthew Hale, Chief Justice in 17th Century England, Lord Hale wrote that: “the husband cannot be guilty of rape committed by himself upon his lawful wedded wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract’’. Being a former British colony, India adopted the common law system which recognised Hale’s ‘’Implied Consent theory’’ this started at the time of the marriage and continued for the entire course of the marriage, and such consent was deemed irrevocable by Lord Hale. This established that once married, a woman does not have the right to refuse sex with her lawful husband. Due to construction of the sex as a woman’s duty within a marriage, there is always a presumption of her consent. India is one of the 36 countries in the world does not recognise marital rape is an offence because it is protected by the legislature by giving exception clause to section 375 of the Indian Penal Code. This clearly demonstrates the intent of the legislature that they did not want to term the act as rape which is committed inside an institution of marriage because this act of sexual abuse committed inside a marriage which is a domestic institution should not be termed as rape and the husband should not be branded as a ‘’rapist’’ for any cause.
MARITAL RAPE-AN UNDERSTANDING IN WIFE’S PERSPECTIVE
Marriage is an institution which presupposes the consent of the two spouses to live together and sexual intercourse is the basic ingredient of a happy marriage this was held in the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511. There is deep understanding, commitment, faith and trust which is the bedrock upon which marriages subsist. There are numerous times when on one side there is some disagreement and the other takes recourse to persuasion. Thus, at times being persuasive it may not be misinterpreted on the touch stone of criminality. In the case of Sunder Lal Soni v. Namita Jain, AIR 2006 (MP) 51, held that in this backdrop that it must be understood that having a healthy sexual relationship goes a long way in building a happy married life. The act of sexual abuse committed inside a marriage which is a domestic institution should not be termed as ‘rape’. The Prevention of Women from Domestic Violence Act, 2005, refused to use the term rape for the act of sexual abuse against a wife. This clearly demonstrates the intent of the legislators that they did not want to term the act as rape inside an institution of marriage but still provided remedy for married women. In a relationship of marriage, if both the spouses have solemnised the marriage fully by their choice and by giving the consent to be married, it implies that the marriage includes a conscious decision to keep sexual relations with her husband as marriage without sex is insipid this was held in the case of Shashi Bala v. Rajiv Arora 188 (2012) DLT 1. The Hon’ble Apex Court in the case of Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, while referring to the judgment of Rita Nijhawan v. Balakrishnan Nijman, (1973) D.L.T. 222, where the Court observed: “Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It must be recognised that nothing is more fatal to marriage than disappointment in sexual intercourse.” Before removing the protection granted to husbands, there is a need to look into the issue as a whole. A person when gets married be it wife or a husband loses his/ her right to perform the sexual act with anyone other than the spouse this was held in the case of Pinakin Mahapatray Rawal v. State of Gujarat (2013) 10 SCC 48. So, when a person is getting married, he or she is giving consent to the spouse to have sex and if sexual assault is inflicted upon the wife then there are laws already in place. There are two corresponding rights involved currently i.e. On one hand there is a right to say no to a sexual intercourse to the spouse and on the other hand there is a right to have a conjugal relationship between the spouses. The two rights have to go hand in hand so only a happy marital relationship may sustain during the lifetime of the spouses but in no circumstance a husband should be branded as a “Rapist”.
MARITAL RAPE LAWS IN INDIA
First to begin with the exception clause 2 of Section 375 of Indian Penal Code which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’’. According to the Indian Government, marital rape cannot be applied in India, as marriage is considered sacred. The Minister of State for Home Affairs, Hari Bhai Parathi bhai Chaudhary in the year 2018, stated that the marital rape could not be criminalized and further added that there is no proposal to make it a criminal offence. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, such as education, illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat the marriage as a sacrament etc”. Eventually, the Law Commission of India, while making its 172nd Report on review of rape laws did not recommend for criminalization of marital rape and hence presently there is no proposal to bring any amendment to the IPC in this regard. The Same act was amended in 1983 to make way for the criminalization of spousal rape during the period of judicial separation under section 376-B of Indian Penal Code and Section 498A of the Indian Penal Code provides a husband or someone who is the relative of the husband inflicts cruelty on the woman, shall be punished and will attract imprisonment for a term which may extend to a maximum period of three years and shall also be liable for fine. The meaning of cruelty for the purpose of this section is that any wilfull act which is of the nature that can drive the women to commit suicide or cause grave injury or danger to life or to mental or physical health and it also includes harassment of the women where such an act is done to coerce her or any person who is related to her to achieve or meet unlawful demands. So, there are sufficient laws existing in the current legal framework and the married woman has remedy available if she is sexually abused by her husband and there is no need for criminalizing it.
PREVENTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Section 3 of the PWDV Act, 2005 states that any act or omission that has the capability to inflict harm, injuries or jeopardizes the health or has the tendency to cause abuse of physical, sexual, verbal and emotional in nature to the married woman. Looking at the penal and relief aspect of the matter referring to Section 18 of the PWDV Act, provides that the magistrate after giving a fair chance of hearing to both the aggrieved person and the respondent and then if the Magistrate is satisfied on a prima facie level that a case of domestic violence could be made out then he would pass an order in favor of the aggrieved party for protection from any act of domestic violence or aiding any act of domestic violence. It is also provided that protection order, interim and monetary reliefs are passed for recourse and if there is non-compliance on part of the husband then he shall be booked with imprisonment which may extend to one year or with fine which may extend to twenty thousand rupees or both as per Section 31 of the Act.
JUDICIAL PERSPECTIVE OF MARITAL RAPE
Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress vs. Haree Mythee (1891) ILR 18 Cal 49) observed that in case of married women, the law of rape does not apply between husband and wife after the age of 15. In Saritha vs. T. Venkata Subbaih (AIR 1983 AP 356), 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”. The Hon’ble Supreme Court, in the case of State of Maharashtra v. Madhukar Narayan Mandikar AIR 1991 SC 207, it has referred to the right of privacy over one’s body. In this case it was decided that a prostitute had the right to refuse sexual intercourse. 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. The right to privacy is not lost by marital association. The Delhi High Court in the case of RIT Foundation v. Union of India W.P. (Civil) 284 of 2015, held that marriage does not mean all time consent for sexual relations and in a relationship like marriage, both men and women have a right to say ‘’no’’ to physical relations, further stressing that being married does not mean the wife is always ready for sex. Consequently, the Hon’ble Apex Court in the case of Independent thought v. Union of India (2017) 10 SCC 800, held that Sexual intercourse with a minor wife is rape. In this case division bench of the apex court clearly stated that criminalizing marital rape it would breakdown the whole institution of marriage.
CONCLUSION
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