Marital rape: The social reasoning why it is a legal exception
Her friends used to tell her it wasn't rape if the man was your husband. She
didn't say anything, but inside she seethed; she wanted to take a knife to their
faces.- F. H. Batacan[1]
A Man will be held guilty of rape if he does any of the acts mentioned in Section 375 of The Indian Penal Code [2]without taking consent of a woman. Nevertheless, there is an exception to this rule.
Exception 2 of the said clause states that Sexual Intercourse or Sexual acts by a man with his wife not being under 15 years of age, is not rape.[3]
This exception implies that the consent of a wife is not a mandatory requirement for sexual intercourse with her husband. It can also be understood that even forced sexual intercourse by her husband is a legal right of the husband and that women have no legal right to protection from rape by their spouse. This exception legitimizes the interpersonal violence within the institution of marriage.
This legislation highlights the dominant role of patriarchal gendered socialization in India. It absolutely ignores the legal remedy and rights of a woman who is a wife, her consent, and the trauma she faces after suffering from such kind of acts. The existence of this legislation to date brings forth several points for contention as to what could be the reason that when we in society call for equality, respect, and acceptance of opinions and desires of people, reject the basic notion of consent of wife in such a private matter.
Rationale
Rape indeed happens between husband and wife. Men who force their wives into having sex are committing rape period. Considering the age old notions and perspectives and still holding on to the treatment of wives as chattel is not justified. There should be no spousal exemption in rape law on any social ground as it objectifies woman as a commodity of her husband depriving her of her rights and making her suffer.
Objectives
The objective of the forthcoming discussion is to illuminate the double face of the society in which we live. On the one hand, we talk of equal rights of men and women, freedom of women, her protection and upliftment while on the other hand under the social, patriarchal dogma we abstain from actually shielding the woman from infringement of her rights, her persona in the name of the sanctity of marriage.
This article will try to highlight on:
Methods
For the discussion in this paper, information has been gathered following the doctrinal method of research. Along with this reports from reputed institutes, academic outputs like journals, articles relevant for the topic and, narratives put forward by media have been read and interpreted to put forward the understood intricacies of this matter.
Discussion and analysis
If a man rapes a woman, it is a crime. If a man marries a woman and rapes [her], he is exempted, it is legally acceptable, said Colin Gonsalves, advocate for marital rape survivor in Khusboo Saifi v. Union of India and Anr[4]. In the said pending petition in the Delhi High court, Section 375(exception 2) was challenged to be unconstitutional, inhumane, and out of sync with the world. The petitions argue that the exception discriminates against the married women, it violates Articles 14 and 15 of the constitution, which prohibits discrimination without an intelligible basis, Article 19 which guarantees the freedom to express or withhold sexual desire in all consensual contexts and Article 21, which guarantees the right to life and personal liberty.[5]
In 2015, the National Crime Records Bureau stated that an estimated 95% of rape victims knew the offender, and at least 2% were former husbands or partners. Ranjana Kumar, director of the Centre for Social Research, runs five rape crisis centres in Delhi, which receive around 7,800 cases each year, which include marital rape complaints, Kumar also said the exact number goes undocumented as there is no law under which to report them.[6]
Statistics of marital rape in the country by National Family Health Survey states that at the pan India level, 9 out of 100 men believe that the husband has the right to use force and have sex with his wife even if she does not want to. The survey also reported that 36.5% married women in the age group of 15-49 years had experienced sexual violence committed by their husbands on them[7].
In 2011, the International Men and Gender Equality Survey, one in five men, had at some point in time forced their wives or partner to have sexual intercourse. [8]A study by the Joint Women Programme, found that 1 out of 7 married women had been raped by their husbands at least once.[9]The UN Population Fund stated that more than 2/3rd of married women in India, aged between 15 to 49, have been beaten, raped, or forced to provide sex.[10]
These all statistical analyses are nothing but a reflection on the fact that marital rape is pervasive yet an unreported crime in our society due to the unsupportive laws of our nation pertaining to the patriarchal and orthodox mindset.
The patriarchal ideology of our society in its assumption that marriage being a sacrament gives men a right over the woman as a property fails to recognize the trauma that a woman suffers from when exposed to the appalling act of rape by her husband. A portion of the fleeting impacts of marital rape incorporates uneasiness, stun, solemn dread, despondency, self-destructive ideation, and post-horrible pressure along with the physical injuries inflicted upon a woman due to this act. In furtherance, a lack of legislation for her protection acts as a last nail in the coffin endangering her to further social trauma that she must prepare herself to suffer when she wills to report against the unjust act.
Not only is there a lack of the necessary law, but the judicial decisions and interpretations have, at times, had a chilling impact on the conscience of a socially vigilant citizen. Studies on this area have notified an aspect that even if women gather up the courage and file a complaint against their husbands on the matter of marital rapes, the issue is subdued and not even brought forward till the courts by stating it is a family matter, women should adjust, which is proved by the meagre amount of cases that are present relating to marital rapes in our courts.
But even if in rare circumstances the case is registered decisions as in case of State v.Vikash[11], where it was decided that intercourse between husband and wife though forcible, is not a rape and cannot be fastened upon the accused even after statement by the claimant that she was forced into the marriage against her will, i.e., under intoxication and then raped on several occasions, demolishes the vigour for demanding justice and protecting the interest of women legally.
The so-called sacredness of marriage and its provisions have degraded the level of women's consent to such low level that it was held in State of Maharashtra vs. Madhukar Narayan Mandikar[12] that though a forceful act on prostitute denying sexual act is considered a crime but on denial of sex by wife, the forceful sexual act will not be rape. This judgment was outrightly horrendous, abridging a woman’s right on her own body, her sexual privacy, dignity, and self-determination, which is unacceptable.
Such decisions have no rationale behind them as such but only the pressure of social ideology and following of the black letter of the law that since the exception states that husband cannot rape his wife above 15 years of age whatsoever the happenings be there cannot be marital rape.
Further, the remedy available to women under section 498-A OF IPC, which deals with the protection of women against cruelty by the husband which has a physical injury on women, is ineffective as there is no standard of measure or interpretation of unnatural physical injury in terms of rape[13]leading this clause to be a nonviable and an ambiguous option to secure justice for women.
Ignoring the ineffectiveness of present legislations, arguments have been presented at times that married women do not need any legislation against marital rape. The ground for this argument is the presence of the Protection of Women from Domestic Violence (DV) Act of 2005. It has been communicated that women are protected by rape in marriage due to this act, and they can file a case. The point ignored in such statements is that the sexual violence mentioned in the act is a civil law and not criminal law, which, in a way, ignores the existence of marital rape.
There have been instances in the history of our nation that has shaken up the conscience of society and have led to reformative actions being taken one such time was the period of December 2012 to March 2013. The activist discourse around rape India assumed spectacular dimensions with people going out on the street and demanding security for women against violence and long-pending rape law reforms. The government reacted on this by forming a committee to examine and recommend changes to address sexual violence effectively.
The Justice Verma Committee which was constituted proposed changes in the law. The committee pressed on the matter of making the legal system more accessible, and trial procedure additionally hospitable to victims. Further the issue of marital rape came forward as a significant point of contention with the feminists, media outlets, civil liberty groups joining the committee in urging the state to repeal the marital rape exception with the argument that the said exception was anachronistic and inconsistent with the equality clause of Indian Constitution and relationship between the perpetrator of sexual assault and victim was immaterial and if the government maintains this exception they must provide a defence against men who rape their wives with impunity.
However, all these persuasive points were not considered, and in the subsequent legislation, i.e., The Criminal law amendment bill, 2012, we as a society lost the golden moment of adopting the significant step of criminalizing marital rape in the legislation.[14]Along with the regretful official and nonofficial statements made by the members of parliament and different actors and agencies of state showcasing their narrow mindedness, the government is hesitant to criminalize marital rape as this would lead to making changes in the law based on religious practices, which are held sacrosanct in our society, where wife is duty-bound to have sex with her husband. One more additional factor is the acceptance by governments of the notion held by society that the said legislation will infringe upon the sanctity of marriage and weaken family in India.[15]
Even the Parliamentary standing committee, which examined the Criminal Law (Amendment) Bill, argued that the recommendation to delete the exception clause is of no utility and that ‘the social notion of the family system, its high stature could be endangered by this legislative action. The panel stated that:
In India, for ages, the family system has evolved; moreover, the family has resolved the marital problems in its own ways. It is, therefore, felt that if marital rape is brought under the law, the entire system will be under great stress and that perhaps maybe doing more injustice. [16]
By weighing upon such social aspects and their comparison to the demand for justice and legal support for the women, such perspectives outweigh the demands important to women and led to the continuation of the arbitrary, unjustified laws which boast of nothing but male dominance and its acceptance in the society.
Conclusion
In a nutshell, we can conclude that the main reasons behind the lack of a rigorous law that acts as a detrimental factor behind this atrocious act are the lack of social acceptance and communication in the right direction in our society. The orthodox and patriarchal ideology along with religious and cultural backings that men are superior to and have right over women along with the belief that sex is a private matter between husband and wife, act as a force behind lack of legal interpretations and legislation in this sphere.
However, all this does not mean that things cannot change. Steps must be taken to create equity and equality in a marriage where the perspectives, desires, and consent of both men and women are understood and protected. As a means of protection of the dignity of women and fortification of her rights under the constitution, we can, and we must take steps to legislate upon this issue. Our society must shed its biased notions and criminalize this atrocious act as this step in its own way has the potential to act as a torchbearer of change in the paradigm of women's inequality and discriminatory social customs that demean women,it can be a move towards the real individual autonomy that we all search for as a woman in this society.
References
Cases
A Man will be held guilty of rape if he does any of the acts mentioned in Section 375 of The Indian Penal Code [2]without taking consent of a woman. Nevertheless, there is an exception to this rule.
Exception 2 of the said clause states that Sexual Intercourse or Sexual acts by a man with his wife not being under 15 years of age, is not rape.[3]
This exception implies that the consent of a wife is not a mandatory requirement for sexual intercourse with her husband. It can also be understood that even forced sexual intercourse by her husband is a legal right of the husband and that women have no legal right to protection from rape by their spouse. This exception legitimizes the interpersonal violence within the institution of marriage.
This legislation highlights the dominant role of patriarchal gendered socialization in India. It absolutely ignores the legal remedy and rights of a woman who is a wife, her consent, and the trauma she faces after suffering from such kind of acts. The existence of this legislation to date brings forth several points for contention as to what could be the reason that when we in society call for equality, respect, and acceptance of opinions and desires of people, reject the basic notion of consent of wife in such a private matter.
Rationale
Rape indeed happens between husband and wife. Men who force their wives into having sex are committing rape period. Considering the age old notions and perspectives and still holding on to the treatment of wives as chattel is not justified. There should be no spousal exemption in rape law on any social ground as it objectifies woman as a commodity of her husband depriving her of her rights and making her suffer.
Objectives
The objective of the forthcoming discussion is to illuminate the double face of the society in which we live. On the one hand, we talk of equal rights of men and women, freedom of women, her protection and upliftment while on the other hand under the social, patriarchal dogma we abstain from actually shielding the woman from infringement of her rights, her persona in the name of the sanctity of marriage.
This article will try to highlight on:
- The prevalence of marital rape in our society and quandary that women face after being exposed to such heinous crime.
- How the laws and judicial interpretations which are present are discriminatory and insufficient leading to an infringement of fundamental rights of women?
- What are the reasons behind the moral, political, and judicial crisis that even to this day no effective legislation has been made against this perturbing act, be it in terms of legal decisions or political, legislative actions?
Methods
For the discussion in this paper, information has been gathered following the doctrinal method of research. Along with this reports from reputed institutes, academic outputs like journals, articles relevant for the topic and, narratives put forward by media have been read and interpreted to put forward the understood intricacies of this matter.
Discussion and analysis
If a man rapes a woman, it is a crime. If a man marries a woman and rapes [her], he is exempted, it is legally acceptable, said Colin Gonsalves, advocate for marital rape survivor in Khusboo Saifi v. Union of India and Anr[4]. In the said pending petition in the Delhi High court, Section 375(exception 2) was challenged to be unconstitutional, inhumane, and out of sync with the world. The petitions argue that the exception discriminates against the married women, it violates Articles 14 and 15 of the constitution, which prohibits discrimination without an intelligible basis, Article 19 which guarantees the freedom to express or withhold sexual desire in all consensual contexts and Article 21, which guarantees the right to life and personal liberty.[5]
In 2015, the National Crime Records Bureau stated that an estimated 95% of rape victims knew the offender, and at least 2% were former husbands or partners. Ranjana Kumar, director of the Centre for Social Research, runs five rape crisis centres in Delhi, which receive around 7,800 cases each year, which include marital rape complaints, Kumar also said the exact number goes undocumented as there is no law under which to report them.[6]
Statistics of marital rape in the country by National Family Health Survey states that at the pan India level, 9 out of 100 men believe that the husband has the right to use force and have sex with his wife even if she does not want to. The survey also reported that 36.5% married women in the age group of 15-49 years had experienced sexual violence committed by their husbands on them[7].
In 2011, the International Men and Gender Equality Survey, one in five men, had at some point in time forced their wives or partner to have sexual intercourse. [8]A study by the Joint Women Programme, found that 1 out of 7 married women had been raped by their husbands at least once.[9]The UN Population Fund stated that more than 2/3rd of married women in India, aged between 15 to 49, have been beaten, raped, or forced to provide sex.[10]
These all statistical analyses are nothing but a reflection on the fact that marital rape is pervasive yet an unreported crime in our society due to the unsupportive laws of our nation pertaining to the patriarchal and orthodox mindset.
The patriarchal ideology of our society in its assumption that marriage being a sacrament gives men a right over the woman as a property fails to recognize the trauma that a woman suffers from when exposed to the appalling act of rape by her husband. A portion of the fleeting impacts of marital rape incorporates uneasiness, stun, solemn dread, despondency, self-destructive ideation, and post-horrible pressure along with the physical injuries inflicted upon a woman due to this act. In furtherance, a lack of legislation for her protection acts as a last nail in the coffin endangering her to further social trauma that she must prepare herself to suffer when she wills to report against the unjust act.
Not only is there a lack of the necessary law, but the judicial decisions and interpretations have, at times, had a chilling impact on the conscience of a socially vigilant citizen. Studies on this area have notified an aspect that even if women gather up the courage and file a complaint against their husbands on the matter of marital rapes, the issue is subdued and not even brought forward till the courts by stating it is a family matter, women should adjust, which is proved by the meagre amount of cases that are present relating to marital rapes in our courts.
But even if in rare circumstances the case is registered decisions as in case of State v.Vikash[11], where it was decided that intercourse between husband and wife though forcible, is not a rape and cannot be fastened upon the accused even after statement by the claimant that she was forced into the marriage against her will, i.e., under intoxication and then raped on several occasions, demolishes the vigour for demanding justice and protecting the interest of women legally.
The so-called sacredness of marriage and its provisions have degraded the level of women's consent to such low level that it was held in State of Maharashtra vs. Madhukar Narayan Mandikar[12] that though a forceful act on prostitute denying sexual act is considered a crime but on denial of sex by wife, the forceful sexual act will not be rape. This judgment was outrightly horrendous, abridging a woman’s right on her own body, her sexual privacy, dignity, and self-determination, which is unacceptable.
Such decisions have no rationale behind them as such but only the pressure of social ideology and following of the black letter of the law that since the exception states that husband cannot rape his wife above 15 years of age whatsoever the happenings be there cannot be marital rape.
Further, the remedy available to women under section 498-A OF IPC, which deals with the protection of women against cruelty by the husband which has a physical injury on women, is ineffective as there is no standard of measure or interpretation of unnatural physical injury in terms of rape[13]leading this clause to be a nonviable and an ambiguous option to secure justice for women.
Ignoring the ineffectiveness of present legislations, arguments have been presented at times that married women do not need any legislation against marital rape. The ground for this argument is the presence of the Protection of Women from Domestic Violence (DV) Act of 2005. It has been communicated that women are protected by rape in marriage due to this act, and they can file a case. The point ignored in such statements is that the sexual violence mentioned in the act is a civil law and not criminal law, which, in a way, ignores the existence of marital rape.
There have been instances in the history of our nation that has shaken up the conscience of society and have led to reformative actions being taken one such time was the period of December 2012 to March 2013. The activist discourse around rape India assumed spectacular dimensions with people going out on the street and demanding security for women against violence and long-pending rape law reforms. The government reacted on this by forming a committee to examine and recommend changes to address sexual violence effectively.
The Justice Verma Committee which was constituted proposed changes in the law. The committee pressed on the matter of making the legal system more accessible, and trial procedure additionally hospitable to victims. Further the issue of marital rape came forward as a significant point of contention with the feminists, media outlets, civil liberty groups joining the committee in urging the state to repeal the marital rape exception with the argument that the said exception was anachronistic and inconsistent with the equality clause of Indian Constitution and relationship between the perpetrator of sexual assault and victim was immaterial and if the government maintains this exception they must provide a defence against men who rape their wives with impunity.
However, all these persuasive points were not considered, and in the subsequent legislation, i.e., The Criminal law amendment bill, 2012, we as a society lost the golden moment of adopting the significant step of criminalizing marital rape in the legislation.[14]Along with the regretful official and nonofficial statements made by the members of parliament and different actors and agencies of state showcasing their narrow mindedness, the government is hesitant to criminalize marital rape as this would lead to making changes in the law based on religious practices, which are held sacrosanct in our society, where wife is duty-bound to have sex with her husband. One more additional factor is the acceptance by governments of the notion held by society that the said legislation will infringe upon the sanctity of marriage and weaken family in India.[15]
Even the Parliamentary standing committee, which examined the Criminal Law (Amendment) Bill, argued that the recommendation to delete the exception clause is of no utility and that ‘the social notion of the family system, its high stature could be endangered by this legislative action. The panel stated that:
In India, for ages, the family system has evolved; moreover, the family has resolved the marital problems in its own ways. It is, therefore, felt that if marital rape is brought under the law, the entire system will be under great stress and that perhaps maybe doing more injustice. [16]
By weighing upon such social aspects and their comparison to the demand for justice and legal support for the women, such perspectives outweigh the demands important to women and led to the continuation of the arbitrary, unjustified laws which boast of nothing but male dominance and its acceptance in the society.
Conclusion
In a nutshell, we can conclude that the main reasons behind the lack of a rigorous law that acts as a detrimental factor behind this atrocious act are the lack of social acceptance and communication in the right direction in our society. The orthodox and patriarchal ideology along with religious and cultural backings that men are superior to and have right over women along with the belief that sex is a private matter between husband and wife, act as a force behind lack of legal interpretations and legislation in this sphere.
However, all this does not mean that things cannot change. Steps must be taken to create equity and equality in a marriage where the perspectives, desires, and consent of both men and women are understood and protected. As a means of protection of the dignity of women and fortification of her rights under the constitution, we can, and we must take steps to legislate upon this issue. Our society must shed its biased notions and criminalize this atrocious act as this step in its own way has the potential to act as a torchbearer of change in the paradigm of women's inequality and discriminatory social customs that demean women,it can be a move towards the real individual autonomy that we all search for as a woman in this society.
References
Cases
- Khusboo Saifi v. Union of India and Anr., W.P. (C) 5858 Of 2017(DEL. H.C.) (Pending).
- State v. Vikash, (2014), SC.No.1/14.
- Maharashtra v. Madhukar Narayan Mandikar, AIR 1991 SC 207.
- Mamta Rao, Law Relating To Women And Children48 (3rd ed., 2012).
- Priyanka Rath, Marital Rape and the Indian legal scenario,2 India Law Journal (2007).Retrieved from:http://india lawjournal.com/volume 2/issue_2/article_by priyanka_html.
- Mukesh Garg & Nareshlata Singla, Marital Rape under Indian Law: A Study, 1 International Journal in Management and Social Science (July, 2013).
- Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of marital rape in India: Understanding its constitutional, cultural and legal impact, 11 NUJS L. Rev. 1 (2018).
- Mallory Moench, High Court Questions Centre on Marital Rape: ‘How Do You Justify the exception? , July 19, 2017, available at https://thewire.in/gender/marital-rape-exception-high-court/ (Last visited on August 11, 2020).
- Shashikant Singh, Should Marital Rape be Criminalized? – The Indian Gene, March 15, 2016, available at https://theindiangene.wordpress.com/2016/03/15/should-marital-rape-be-criminalized/ (last visited on August 11, 2020).
- Avarati Srivastav, Marital rape in India: de facto but not de jure, June 21,2016availabe at https://www.academia.edu/12751454/ (Last visited on August 11, 2020).
- Bharti Jain &Rakhi Chakrabarty, Government justifies exclusion of marital rape as sexual offence in amended ordinance, February 19, 2013, available at http://timesofindia.indiatimes.com/articleshow/18566797.cms?referral=PM&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last Visited on August 11, 2020).
- Bharti Jain, House panel backs move not to treat marital rape as sexual offence, March 2, 2013, available at https://timesofindia.indiatimes.com/india/House-panel-backs-move-not-to-treat-marital-rape-as-sexual-offence/articleshow/18759230.cms (Last visited on August 11, 2020).
- National Family Health Survey 4, 2015-2016.
- Quote by F. H. Batacan, available at https://www.goodreads.com/quotes/tag/marital-rape/ (Last visited on October 16, 2019).
- Quote by F. H. Batacan, available at https://www.goodreads.com/quotes/tag/marital-rape/ (Last visited on August 10,2020).
- The Indian Penal Code, 1860, §375.
- The Indian Penal Code, 1860, §375, Exception 2.
- Khusboo Saifi v. Union of India and Anr., W.P. (C) 5858 Of 2017(DEL. H.C.) (Pending).
- Mallory Moench, High Court Questions Centre on Marital Rape: ‘How Do You Justify the exception? , July 19,2017, available at https://thewire.in/gender/marital-rape-exception-high-court/ (Last visited on August 11,2020).
- Id., 3.
- National Family Health Survey 4, 2015-2016.
- Priyanka Rath,Marital Rape and the Indian legal scenario,2 India law Journal (2007).Retrieved from:http://india lawjournal.com/volume 2/issue_2/article_by priyanka_html.
- Mukesh Garg & Nareshlata Singla , Marital Rape Under Indian Law: A Study, 1 International Journal in Management and Social Science (July, 2013).
- Shashikant Singh, Should Marital Rape be Criminalized? – The Indian Gene, March 15, 2016, available at https://theindiangene.wordpress.com/2016/03/15/should-marital-rape-be-criminalized/ (last visited on August 11,2020).
- State v. Vikash, (2014), SC.No.1/14.
- Maharashtra v. Madhukar Narayan Mandikar, AIR 1991 SC 207.
- Avarati Srivastav, Marital rape in India: de facto but not de jure, June 21,2016availabe at https://www.academia.edu/12751454/ (Last visited on August 11,2020).
- Garg&Singhla,supra 7.
- Bharti Jain &Rakhi Charabarty, Government justifies exclusion of marital rape as sexual offence in amended ordinance, February 19, 2013, available at http://timesofindia.indiatimes.com/articleshow/18566797.cms?referral=PM&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last Visited on August 11, 2020).
- Bharti Jain, House panel backs move not to treat marital rape as sexual offence, March 2, 2013, available at https://timesofindia.indiatimes.com/india/House-panel-backs-move-not-to-treat-marital-rape-as-sexual-offence/articleshow/18759230.cms (Last visited on August 11, 2020).
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