"When a woman is raped by a stranger, she has to live with a frightening memory. When she is raped by her husband, she has to live with the rapist"
A Delhi trial court's recent decision acquitting a man of the charge of rape because the woman he had sex with forcibly happened to be his wife has once again brought this issue on rostrum. Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both. But the eye-opener part of this this section says an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 15 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 15, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. This puts forward a hypocritic question as to how can the same law which provide for the legal age of consent for marriage to be 18 but while protecting form sexual abuse, only those up to the age of 15? Beyond the age of 15, there is no remedy the woman has. Marital rape, is spousal rape, non-consensual sex in which the perpetrator is the victim’s spouse. Husbands often rape their wives when they are asleep, or use coercion, verbal threats, physical violence, or weapons to force their wives into having non-consensual sex with them. As such, it is a form of partner rape, of domestic violence, and of sexual abuse. Is marriage licence to rape? Is there any insecurity sleeping with your spouse too? Marital rape indeed shows the perversity of an individual. Is not marital rape apart from rape of the body also a rape of love, trust, committment, belief and various vows taken during marriage. If men starts raping their wife what is the difference between a criminal under a law and a husband? One should not forget RAPE is RAPE regardless of the relationship between rapist and a victim. Marital rape is so ruinous because it denounces the basis of marital relationship as it questions every understanding you have not only for your partner and the marriage, but of yourself. The long established and accepted idea that it is impossible for a man to rape his wife and that somehow, in taking our marriage vows we have abdicated any say over our own body and sexuality, basically denied ourselves the right to say “no” ; is still prevelant amongst wives as much as amongst their husbands. However to remove the statutory lacunae and to extend the legal cover, a Bill to amend the existing rape laws was passed by the Lok Sabha in April 2013. This replaced the Ordinance that was promulgated in February 2013. By virtue of the Criminal Law Amendment, 2013, a number of changes were introduced in the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. These changes are based on the recommendations of the Justice Verma Committee Report of 2013. However, one of the Committee's key recommendations – that marital rape be criminalised, was not accepted by the cabinet.
Various primordial theories put forth every time to exclude marital rape from the ambit of law is seriously despicable. The contract theory says “marriage is a licence to the husband to control her sexual autonomy in return for her “protection, while on the other hand the property theory” says a woman “belongs” to her father before marriage, and is her husband’s property thereafter. And since the owner of the property is empowered to use his property according to his own needs, the question of a husband raping his wife does not arise. How low can we stoop down in considering women as a property? Further there’s one more justification of marital rape exemption i.e the “unification theory”. According to this theory, the wife forfeits her legal existence on getting married; consequently, her legal and individual identity merges with that of her husband’s. Since the wife is legally non-existent, it is not legally possible for a man to rape his wife. How long these archaic theories will be accepted. The protection of section 498-A of the Indian Penal Code, has so far catered to counter the menace of cruelty towards women and protected them against “perverse sexual conduct by the husband”. But noteworthy point is that, is there a parameter or standard of measure or interpretation for the courts, of ‘perversion’ with regard to the intimate spousal relations? Is excessive demand for sex “perverse”? Isn’t consent a sine qua non for indulging in sexual intimacy? The recent protection codified in the form of “The Domestic Violence Act, 2005” has also been a disappointment. The Act provides corresponding civil remedies to what the provision of cruelty under section 498-A IPC already gave, while keeping the issue of marital rape in abeyance and in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., mental, physical, or sexual. However, it condones sexual abuse in a domestic relationship of marriage or a live-in, if the same is not life threatening or grievously hurtful. Another relevant provision is Section 122 of the Indian Evidence Act, 1872, which prevents communication during marriage from being disclosed in court by the parties. Since, marital rape is not an offence under the Indian penal laws, the evidence is inadmissible, although relevant, unless it is a prosecution for assault, or some related physical or mental abuse under the provision of cruelty. In effect, proving the offence of marital rape beyond reasonable doubt in court, by combining the provisions of the Domestic Violence Act, 2005 and the Indian Penal Code, 1860, will be a nearly an impossible task.
Considering the case Sree Kumar vs. Pearly Karun, the Kerala High Court observed that because the wife was not living separately from her husband under a decree of separation or under any custom or usage, even if she is subject to sexual intercourse by her husband against her will and without her consent, offence under Section 376A, IPC will not be attracted. In this case, there was an ongoing dispute on divorce between the parties. Thereafter, a settlement was reached between the husband and wife and parties agreed to continue to reside together. The wife stayed with the husband for two days during which she alleged that she was subject to sexual intercourse by her husband against her will and consent. Hence the husband was held not guilty of raping his wife though he was de facto guilty of having done so.
With change in time, change in social values, and finally change in government, we hope that the deeply ingrained cultural and religious stereotypes be reformed to alter the letter of law and redesign the justice system in this particular matter.
Read Live Law Story on Delhi Trial Court ruling regarding Marital Rape here.
Shivangi Singh is a 2nd year student of National Law University Odisha, Cuttack
Legal News India, Lawyers, Law School, Marital Rape