The following article takes into consideration the often undervalued crime of Marital Rape that is committed against women. Here, we have discussed the various definitions and explanations of this particular crime along with the harms that are caused to the women as a whole. We have also discussed the history of development of the laws regarding this. However, our main aim has been to discuss the scenario that is been going inside the world's biggest democracy, India.

To justify the violations of the rights of the women, the various sections of the Indian constitution have also been analyzed and compared. Since, the law has not yet been able to make it's way to the Indian Law books, therefore, various case laws involving the debate of Marital Rape have been discussed along with the arguments that have been crucial in the judgment of these very cases.

The Exordium
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 violent act done by the husband to his wife without her consent and subsequently abusing her physically and mentally.

Historically, RATUS is the generic term for rape, in roman law, understood as an offence consisting of the violent carrying away of women and is better translated as abduction[1]. Raptus, in roman law, covered many crimes of property, including women who were also considered as property. Therefore, the punishments of non-consensual sexual intercourse were framed to protected the interests of the society in penalizing unchaste behavior, rather than the interests of the survivor.

It is factual that women have been denied of their rights for a long time now in almost every society present in the world but this notion has been attacked in the last century by the uprising of the feminists' ideology and the increase in the literacy rate of the women. Also India is one of the 36 countries where, in spite of the fact that the youth consists of around 34% of the total population, there doesn't exist a law to counter a social evil as big as Marital Rape.

The very initial rationale used for not considering marital rape is based on Sir Matthew Hale's statement made in 1678, 17th century that:
The husband cannot be guilty of rape committed by himself upon his lawful wife, for their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract'[2].

Shockingly, in INDIA, marital rape is not included in the narrow purview of definition of rape. Rape is just not a heinous crime but rather it is an infringement of the basic human right of a person for example, a married woman's right to equality can be questioned when she is denied justice after being exposed to such a trauma by her very own husband. A man can rape his wife and can escape from the punishment of rape by using the marriage veil and it cannot be questioned.

It is a matter of concern that a basic right of a married women is denied when it comes to marital rape. the Indian society can be said to have run by a patriarchal framework since forever and therefore a married women basic rights are not considered even in today's India. Every individual legal entity has some basic rights, but it is shameful to say that a married woman doesn't have her marital rights in India.

History
Historically, the crime of rape has been considered as a crime of theft towards of a man's property who ma either be the father or the husband of the person. Since, a person cannot steal his own property, therefore, he cannot ever commit the crime of rape towards his wife. Moreover, a woman's legal rights were subsumed by those of her husband[3].

This was the case up until the 20th century after which in the 1970s, where the women rights and the feminists' movements started to take place, and these groups initiated the anti-rape movements and their voices rose in unison against these biased acts. However, in spite of these very rights being enforced by the law, the right to sexual privacy was still a distant dream for the women. Marriage in itself is considered as a consent and this in turn allows the husband to have sex with the wife without her consent.

The history of marital rape laws dates back to the year 1922 where it started in the Soviet union, followed by the Poland in the year 1932, Czechoslovakia(modern day Czech republic ) in the year 1950 and then these countries were joined by the members of the communist bloc such as the Sweden and Norway in the years 1965[4] and 1971[5] respectively.

Marital rape was then criminalized by Yugoslavia in the year 1977. Belgium was early to detect marital rape as a crime by the husband in the year 1979 by the law was amended several years past in the year 1989 when the definition of rape was broadened to include marital rape in its scope. It was then criminalized in Israel in the year 1980 by citing Talmud which is the religious text of the Jews.

In Australia, the criminalization began in the year 1981 with New South Wales followed by other states from year 1985 to 1992. and during this time, several British colonies also criminalized it such as Canada in the year 1883, New Zealand in the year 1985, Ireland in the year 1990. other countries following were, Austria in 1989, Switzerland in 1922, Spain in 1922 saying that the freedom of making own decisions were extended to sexual activities in a marriage[6]. In Europe, the countries to criminalize this were, Finland in the year (1994), Ireland in the year (1990) by stating that the husband can be guilty of raping his wife[7]. Followed by France in the year 1994, Germany in the year 1997.

It was criminalized in the year (2003) in Bosnia and Herzegovina in after the criminal code came in to being in the year 2003. The following European countries which followed the trend were, Portugal (1982), Serbia (2002), Luxembourg (1994), Netherlands (1991), Italy (1976), Liechtenstein (2003) and Greece (2006). In South America, Colombia criminalized the marital rape in (1996) and Chile in (1999), Namibia criminalized it in (2000), Papua new guinea in (2003) and Thailand in the year (2007).

Recent countries to criminalize marital rape include Zimbabwe (2001), Turkey (2005), Cambodia (2005), Liberia (2006), Nepal (2006), Mauritius (2007), Ghana (2007), Malaysia (2007), Thailand (2007) , Rwanda (2009), Suriname (2009), Nicaragua (2012), Sierra Leone(2012), south Korea (2013), Bolivia (2013) Samoa (2013), Tonga (1999/2013).

Apart from these countries, there still exist 36 such countries including India which is considered to be the world's biggest democracy, who have not yet criminalized marital rape or haven't included it in their law. These are Afghanistan, Algeria, Antigua and Barbuda, the Bahamas, Bahrain, Bangladesh, Botswana, Brunei, Cameroon, central African republic, China, Congo, Djibouti, Egypt, equatorial guinea, Eritrea, eSwatini, Ethiopia, guinea, Haiti, India, Iran, Iraq, Jamaica, Jordan, Kuwait, Libya, Madagascar, Malawi, Maldives, morocco, Myanmar, Nigeria, north Korea, Oman, Palestine, Saint Lucia, Saudi Arabia, South Sudan, Sri Lanka, Syria, Tajikistan, Tanzania, Tuvalu, Uganda, UAE and, Yemen.


Marital Rape and Pertinent Laws
India has advanced in every possible diverse field, but still marital rape is not considered as a criminal offence. Despite different initiatives– amendments, new legislation and law commission the marital rape is not criminalize, this shows the giant loophole in the country's judiciary and legislature system.

India is included in 36 countries where the marital rape is not criminalize[8].
Here marital rape exists as de facto but not as a de jure[9]. In the others countries the legislature was able to throw the light on this issue or the judiciary played important role in recognizing the importance of marital rape.

But in India the judiciary and legislature has there own reasons not to make their decision on this issue. They found some bizarre reasons like saving the sanctity of marriage institution so as to not criminalize the marital rape. Section 375 of the Indian Penal Code(45 of 1860) which describes the rape provision, reflected the very archaic thoughts and sentiments, given in exception clause Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape[10].

Section 376 of Indian penal code defines the punishment of rape. According to the punishment a man is said to be punished with imprisonment in either of the description a term which is not less than 7 years but which can be extended up to life or for a period extending up to 10 years and shall also be liable to fine unless the woman raped is his own spouse, and is not under 12 years of age, in which case, the husband shall be punished with imprisonment of either for a term which may extend to 2 years with fine or both.

This section is dealing with sexual assault, in a very narrow purview of rape which lays down that, an offence of rape within a marriage is considered as rape only if the wife is less than 12 years of age. If she is between 12 to 15 years, an offence is committed, however, less serious, with milder punishment. By the time, the age crosses 15, there is no given or stated legal protection accorded to the wife, in direct contravention of human rights regulations.

This gave rise to the demur that how can the same law be providing the legal age of consent for marriage to be 18 while, protecting form sexual abuse only those up to the age of 15? Above the age of 15, there is no remedy the woman has. For this the Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope.

Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which allowed the husband of a girl child— between 15 and 18 years of age to legally have sexual intercourse has been criminalized by the Supreme Court. Supreme Court declared that sexual intercourse by a man with his wife, who is below 18 years of age, is rape. therefore, the exemption clause now reads-'Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

A Bench of Justices Madan B. Lokur and Deepak Gupta observed:
Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.

The Indian penal code was amended in 1983 to include criminalization of spousal rape during the court has granted the judicial separation[11].

The instances wherein the husband can be held liable for marital rape:

1. When the married women is between the age group of 12–15 years, the offence punishable with imprisonment up to 2 years or fine, or both[12].
    
2. When the wife is below the age of 12 years, the offence punishable with imprisonment of either description for a term which shall not be less than 7 years perhaps it may extend to life or for a term which can be extended up to 10 years and shall also be liable to fine[13].
    
3. When the court has granted the judicial separation, the offence of rape of a judicially separated wife, will be punishable with imprisonment up to 2 years and fine[14].
   A long debate has also been going on the contradiction which was being followed as the girls of age between 15 to 18 years of age were still not included in the definition of sexual assault by the husband since the marriage below the age of 18 is considered voidable. After the recent amendment in the section 375 of the Indian Penal Code, exception 2 has been added which states that:
    
4. When the wife is between the age of 15 – 18 years, the husband can be held liable for the offence of rape and can be imprisoned for 10 years under the India Penal Code or even a life term under the Protection of Children from Sexual Offences (POSCO) Act[15].
   
   The women above the age of 18 can take recourse under 2005, the Protection of Women from Domestic Violence Act, 2005, the act doesn't consider marital rape as a crime, but consider it as a form of domestic violence[16]. moreover, the much awaited domestic violence act of 2005 has been a completely flop with respect to the rights of married women, it condones sexual abuse against a woman in marriage or in a live-in relationship only of it is life threatening or grievously hurtful and doesn't entitle the women, the freedom of decision of their wants and despite the fact that apart from their marriage, they are still an individual entity.

Recent debate before the judiciary:
The following are the common arguments that are given against the idea of criminalizing marital rape.

Criminalizing marital rape is against India's culture- the argument is backed by the justification that 'It will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values'[17]. The presumption exists in Indian society that marital rape laws would destroy the marriages and will prevent all the possible means of reconciliation.

Once the women are married a tacit consent is given:
The idea that once a woman is married, she gives an incessant, continuous sexual consent to her husband. Thus, assuming that There is an implied consent to have sexual intercourse when a woman marries a man.

Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape - it was backed by the reasoning that criminalizing marital rape can become an easy tool to harass the husbands,

Absurdly arguing:
if all sexual acts between a husband and his own wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife.

Due to the near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.

From all the above arguments one thing can be deduce very easily that none of them are tenable arguments. and therefore, the rebuttals of the same is quite easy.

In a marriage when husband rapes his wife, the trust breaks of a women and subsequently the sanctity of a marriage is destroyed. it is evident that one of the important goals of a marriage institution is to protect a marriage, but it cannot override the fundamental objective of law in general and criminal law in particular which is to protect and preserve the bodily integrity of a human being. After this heinous crime, to withhold a marriage and paving way for reconciliation is utter failure and futile.

It is true that after marriage a women gives her implied consent to her husband for sexual intercourse but an expression of love and affection is completely different from a forced sex .This argument roots can be seen back then in1700s where Mathew hale of England declared the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.

After this another justification came in 1753 by William Blackstone where he supported common law doctrine of coverture which is legal status of married women as her husband's property. Blackstone argued after marriage, husband and wife are considered as one person in the eyes of law, indirectly snatching all the right of a women and ensuring that she could not use her right against her husband. despite the 2017 Gujarat high court ruling[18], which clearly says It has long been 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.

The criminal justice system in India provides a potential inherent safeguard such as the requirement of proof beyond any reasonable doubt. It is not that easy to make a fabricated case against the men. There is a thorough procedure through which a woman has to go to prove that she is been raped.

It is also important to take a glance at Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC, which criminalizes physical and mental distress to a woman by her husband or his family. In against of these laws the same argument was presented before the court of law, that women will falsely accuse their husbands for vengeance, blackmailing. Therefore, the argument that there is a risk of fabricated case cannot used as a ground to takeaway women right.

According to the latest national health and family survey for 2015-16, 5.4% women have experienced marital rape, under this category. But while the data on marital rape in India exists, marital rape as a crime, does not exist. And yet 5.4% of married Indian women say they have experienced marital rape. 4.4% of them say they have experienced marital rape in just the last 12 months before this survey.

The figure reported by NFHS-3 for 2005-6 was 9.5%. there are victims of marital rape all over the India and merely the fact that marital rape would be very difficult to prove is no reason for not recognizing it as a crime.

Conclusion
Rape is a brutal and awful crime against a women, it is the worst type of sexual violence that is occurring at the family level. It is just not a crime but an assassination of a women dignity. When a woman gets married she doesn't waive her right as a legal entity and therefore snatching the rights of a married women on the ground of marriage is utter unjust and discriminatory.

The fact that a man can get away from the punishment of rape in marriage indicates an acceptance of the archaic understanding that wives are the sexual property of their husbands and the marriage gives them legitimate authority of having coerced sex. The Indian law system utterly fail in providing protection to the married women from their perpetrator husbands. Decriminalization of marital rape leads to violate article 14 and article 21 of Indian constitution i.e. the right to equality and right to life and personal liberty.

The elementary difference between a consensual sex and a rape is whether a woman has consented for the sex or not. A man cannot force a woman against her consent irrespective of what relation they share.

The supreme court has recognized rape of a minor wife by criminalizing the exception (2) of section 375 of Indian Penal Code, but still the major wives are not provided the same rights. This is the time when marriages should stop being treated as sacrosanct and stringent actions are required to be taken against the perpetrators who are hiding before the veil of the marriage.

The marriage should not be taken as a ground to deny the right of a woman. Every women must have the basic rights that a legal entity in this country has. Thus there is a need to change the recourse source of marital rape from domestic violence act, 2005 to the criminalization of marital rape.

End Notes:

1. Nimeshbhai Bharatbhai Desai v State of Gujarat [2018] GUJHC 0291 (India).
2. Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] SACC 0027(India).
3. Rosemarie Tong, Women Sex and the Law (1st edition, Rowman & Littlefield 1984) 94.
4. Sir William Blackstone, Commentaries on the Laws of England (Volume 1, OUP OXFORD, 1765) 442-445 .
5. R Amy Elman, Sexual subordination and state intervention: comparing Sweden and the United States (1st edition, Berghahn Books, 2000)
6. R Amy Elman, Sexual subordination and state intervention: comparing Sweden and the United States (1st edition, Berghahn Books, 2000).
7. Editorial Aranzadi, 'Actualidad Juridicia Aranzadi'(1992) accessed 28 july, 2020
8. Irish Statute Book, Criminal law (Rape)(Amendment) Act, 1990, s 1, schedule 5.
9. Marital rape in India:36 countries where marital rape is not a crime (India today, 12 March 2016) accessed 25 June 2020.
10. Aishwarya Mishra, India : Law On Marital Rape – A March Needed Reform In Our Legal System (Mondaq, 13 April 2018) accessed 18 July 2020.
11. Indian penal code, 1860, s 375.
12. Indian Penal Code, 1860, s 376A.
13. Indian Penal Code, 1860, s 376(1).
14. Indian Penal Code, 1860, s 376(1).
15. Indian Penal Code, 1860, s 376A.
16. Indian Penal Code (Amendment adding exception) Order 2017, s 376.
17. The Protection of Women from Domestic Violence Act, 2005, s 3(1) (ii).
18. Akhil Khadidal, Marital rape shouldn't be crime in India: Ex-CJI Misra, (2019) DECCAN HERALD accessed 25 July 2020.

Award Winning Article Is Written By:

1. Roshi Surele &
2. Govind Gupta
   
   

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