MARRIAGE IS NOT A LICENSE: NEED FOR RECOGNITION OF MARITAL RAPES IN INDIA

Author: Dhanya Hegde, Student at MKPM RV Institute of legal studies

ABSTRACT

The debate around criminalizing marital rape in India is complex, intersecting legal, social, and cultural dimensions. The traditional view of marriage as a sacred institution complicates the issue. Insights from Law Commission reports, parliamentary discussions, and judicial decisions shed light on these complexities. This is one of the main reason for not criminalising the marital rapes. Society and law in India has given a woman ample rights to protect and defend herself against the world for her safety. But if the person who troubles and tortures her or forcibly has sex with her is her husband, then there are barely any laws that can protect her. Marital rape is often shrouded in silence due to deep-rooted patriarchal attitudes that normalize the abuse, social stigma that shames victims, financial dependency that limits their options, and family pressure that prioritizes family honor over the victim’s well-being, all of which contribute to the underreporting of this serious issue.

INTRODUCTION

The term “rape” originates from the Latin word “rapere,” meaning “to snatch or carry off.” This refers to an ancient Roman practice where men would abduct women from neighboring tribes. Over time, the term’s meaning evolved to encompass the violent and non-consensual acts we associate with it today. Rape is widely recognized as a serious violation of human rights and dignity.That’s a clear definition of rape. Non-consensual sexual acts can cause significant harm to individuals, and recognizing consent as a fundamental aspect of healthy relationships is crucial. It can occur in various contexts, including intimate relationships, stranger attacks, or in situations of war and conflict, and is never the victim’s fault, with consent being a fundamental aspect of any sexual encounter.
Marital rape is a serious form of domestic violence where one spouse forces the other into non-consensual sexual intercourse. This act can lead to severe physical and emotional trauma, damaging the victim’s mental health and well-being. The core issue in marital rape is the lack of consent, emphasizing that marriage does not imply automatic consent to sexual activity. Mutual respect, trust, and consent are the foundation of a healthy and fulfilling marital relationship.
Institution of marriage in India is a sacramental and spiritual union rather than a legal contract. A bond of respect is created by the institution of marriage where two people are brought together by duty, property and sexual desires( Dharma, Arth, Kama respectively) to attain salvation (Moksha). The cultural view of marriage as a sacred institution for social stability, lineage, and heritage can contribute to the normalization of marital rape. When marriage is seen as implying automatic consent to sex, or when women’s roles are defined by marital duties, it can create an environment where non-consensual acts within marriage are tolerated or dismissed. Challenging these norms is essential to recognizing marital rape as a serious violation of consent and human rights.

CULTURE OF NORMALISING MARITAL RAPES

Historically, rape was perceived as a violation of a woman’s family or marital ties rather than her individual rights. Two contrasting views prevail: one, that marriage implies irrevocable consent to sexual activity, and two, that forced sex without consent is rape, regardless of the relationship. The latter perspective prioritizes individual autonomy and consent, recognizing that marriage does not inherently imply consent.The traditional patriarchal structure of marriage often positioned men as superior, granting them control and authority over their wives. This power imbalance led to the normalization of husbands’ dominance, including control over their wives’ bodies, without regard for the women’s autonomy, preferences, or consent. Historical practices, such as Sati, where wives were expected to sacrifice themselves on their husband’s funeral pyre, underscore the extreme societal expectations placed on women to prioritize loyalty and honor above their own lives.
In many Indian families, societal pressure prioritizes family legacy and continuity over individual well-being, particularly for women. Women are often expected to bear children, regardless of their own desires or reproductive autonomy. This pressure can lead to situations where women are coerced into sexual activity, highlighting the need for greater awareness and respect for women’s rights, autonomy, and mental health within the family structure.
The financial dependence of women on their husbands and in-laws can significantly increase their vulnerability to abuse and exploitation. Historically, the expectation that women prioritize domestic roles over professional ones has contributed to this dynamic. Although attitudes are slowly shifting, many women still lack the economic independence to protect themselves from marital abuse or make autonomous decisions. Without financial autonomy, women may feel trapped in abusive relationships, underscoring the importance of economic empowerment and support systems that enable women to achieve greater independence and agency in their lives.
These practices and attitudes have contributed to the perpetuation of gender inequality and violence against women, emphasizing the need for continued efforts to challenge and transform these deep-rooted norms.Global influences have sparked a significant shift in Indian society, amplifying voices advocating for women’s equal rights. As women excel in various fields, they’re carving out their own spaces and challenging traditional norms. The conversation around women’s independence, dignity, and bodily autonomy has gained momentum, with discussions now taking place in Parliament, on social media, and in public interest lawsuits being monitored by the Supreme Court of India. This increased visibility and dialogue mark a crucial step towards recognizing and addressing the complexities of gender equality in India. Many nations like Africa, Colombia, Nepal have criminalized marital rapes, while India and other Middle East Asian countries have not give legal status to marital rapes.

LEGAL STATUS OF MARITAL RAPES IN INDIA

Exception 2 to Section 375 of the Indian Penal Code (IPC) previously stipulated that non-consensual sexual intercourse by a husband with his wife, if she was over 15 years old, did not constitute rape. The marital rape exemption stems from an outdated notion of marriage implying perpetual consent, sparking debates about women’s autonomy, dignity, and bodily integrity. The Supreme Court’s rulings, particularly the 2017 decision and its extension to 18 years, mark steps towards reform, yet the exemption for adult wives remains contentious. The Bharatiya Nyaya Sanhita (BNS) has replaced the Indian Penal Code (IPC), and Section 63 of the BNS defines rape with an exception for marital rape. This exception states that sexual intercourse by a husband with his wife, if she is not under 18 years old, is not considered rape. Critics argue that this exception perpetuates gender inequality and violates women’s rights to autonomy, dignity, and bodily integrity.
The Justice Verma Committee, established in the aftermath of the Nirbhaya case, made significant recommendations regarding marital rape. The committee’s stance highlights that consent shouldn’t be influenced by the relationship between the victim and perpetrator. Marital rape is recognized as a severe violation of a woman’s autonomy, dignity, and bodily integrity. The ongoing exemption in the Bharatiya Nyay Sanhita (BNS) fuels debates about women’s rights, underscoring the need for legal reform to safeguard women from marital violence.

RELEVANT CASES

Harvinder Kaur v. Harminder Singh(1984)

In the Harvinder Kaur vs. Harmander Singh case, the Delhi High Court’s ruling underscored a concerning perspective on marital relationships and constitutional rights. By deciding that the Constitution shouldn’t intervene in household matters to preserve the institution of marriage, the court effectively prioritized the marital unit over individual rights. The suggestion that fundamental rights like Article 21 (right to life and personal liberty) and Article 14 (right to equality) don’t apply within marriage raises concerns about women’s autonomy and rights. It implies a gap in protection, potentially leaving women vulnerable to violations within their own homes. Critics argue that this approach can perpetuate power imbalances and enable abuses within marital relationships, highlighting the need for legal perspectives that uphold individual rights and dignity.

Vishakha v. State of Rajasthan

In this case the court highlighted the challenges in prosecuting marital rape under Indian law. The Special Fast Track Court in Delhi ruled that forcible sexual intercourse between a husband and wife couldn’t be considered rape, citing their marital status. This decision reflects the existing exemption for marital rape, which can create a disparity in how the law treats sexual violence within and outside of marriage. Critics argue that such exemptions can perpetuate power imbalances within marital relationships and deny women protection from sexual violence, emphasizing the need for legal reform to ensure women’s rights and dignity are upheld.

State of Maharashtra and anor. V. Madhukar Narayan Mardikar(1991)

In this case, the Supreme Court underscored the significance of a woman’s right to privacy, emphasizing that it must be respected and protected. The ruling recognizes the significance of individual autonomy and dignity, emphasizing their importance in personal relationships, including marriage. However, the broader implications of this decision are nuanced when considered alongside laws and court decisions regarding marital relationships. The recognition of privacy rights can be seen as particularly relevant in discussions around marital rape, where the issue of consent and bodily autonomy is central. Despite this, the persistence of marital rape exemptions in Indian law highlights ongoing tensions between privacy rights, marital obligations, and women’s rights within marriage.

Bhupinder Singh v. Union territory of Chandigarh(2008)

The Supreme Court’s ruling clarified the interpretation of Exception 2 to Section 375 of the IPC, specifying that sexual intercourse with a wife above 18 years old is not considered rape. However, the court also made it clear that if a marriage is void due to bigamy (the husband having a living spouse from a previous marriage), sexual intercourse with the second wife would amount to rape. This distinction highlights the court’s attempt to balance marital rights with protections for women in situations where the marriage itself may not be legally valid.

Nimeshbhai Bharathbhai Desai v. State of Gujarat (2018)

The courts acknowledged the need for nuanced understanding and legal reform. By categorizing marital rape into types like obsessive, force-only, and battering rape, the court emphasizes the severity and variety of experiences women may face. The court’s recognition of the disparity in women’s rights within marriage underscores the importance of addressing marital rape and ensuring protection and justice for victims. This approach seeks to balance concerns about false accusations with the need to safeguard women’s rights and dignity within marriage.

Independent Thought v. Union of India (2017)

In the landmark case of Independent Thought v. Union of India (2017), the Supreme Court ruled that sexual relations with a wife between 15 and 18 years old constitute rape, regardless of marital status. The court referenced the Protection of Children from Sexual Offences Act and constitutional values of equality and non-discrimination. By emphasizing the importance of preserving women’s bodily autonomy within marriage, the court criticized legislative gaps and societal attitudes that perpetuate marital rape. This decision marked a significant step towards recognizing and protecting married women’s fundamental rights, particularly their right to bodily integrity.

INTERNATIONAL  OVERVIEW ON MARITAL RAPES

The global landscape regarding marital rape has undergone significant transformation, with numerous countries acknowledging it as a grave offense. Historical events, such as the egregious exploitation of “comfort women” during World War II, have raised awareness about the severity of sexual violence. The feminist movement in the latter half of the 20th century played a pivotal role in bringing marital rape to the forefront as a public concern. A landmark moment was the 1995 UN Women’s Conference, where nations collectively endorsed a resolution affirming wives’ rights to refuse sexual advances from their husbands. Presently, more than 50 countries, including prominent nations like the US, UK, Canada, and Sweden, have criminalized marital rape, while around 80 countries have repealed exemptions that previously allowed for it. Despite this global progress, India remains among the countries where marital rape has not been criminalized, highlighting the need for legal reform to protect women’s rights and dignity within marriage.
            The history of criminalizing marital rape reflects a growing global recognition of women’s rights. Poland and Australia were among the early adopters in recognizing marital rape as a criminal offense, with Poland leading the way in 1932 and Australia following in 1976. Since then, numerous countries, including South Africa, Ireland, Israel, Ghana, and several Scandinavian nations, have enacted similar laws. In the United States, marital rape was criminalized in all 50 states, starting with New York’s Court of Appeal ruling in 1984. Nepal also made marital rape a crime in 2002, with its Supreme Court citing constitutional rights to equal protection and individual privacy. This progression underscores the evolving understanding of marital relationships and the importance of protecting women’s autonomy and dignity.

CONCLUSION

Marital rape is a severe form of sexual assault that often remains hidden due to societal norms, patriarchal attitudes, and economic dependence. The absence of clear laws and consequences for marital rape can indeed worsen the trauma and suffering of victims, highlighting the need for legislative action.  Research on the topic is limited, and the absence of data hinders efforts to create effective legal frameworks and support systems for victims. Marital rape can affect women across all demographics, regardless of age, socio economic status, or background. A comprehensive approach is necessary, encompassing legal reform, awareness campaigns, and support for victims to effectively address marital rape.
The Supreme Court’s decision to criminalize rape of a minor wife marks a significant step towards protecting children’s rights. However, the struggle for recognition of marital rape for major spouses continues. The existing marital exemption in the definition of rape creates a loophole, allowing perpetrators to escape accountability. This highlights the need for further legal reform to ensure justice and protection for all victims of sexual violence, regardless of their marital status.
            Criminalizing marital rape would be a significant step towards protecting women’s rights and dignity in India. Many countries have already taken this step, recognizing the inherent violation of human rights that marital rape constitutes. By following suit, India can further its progress towards gender equality and ensure that all individuals, regardless of their marital status, are protected from sexual violence.

FAQS

What is the provision for rape in bns?

Section 63 of the Bharatiya Nyaya Sanhita (BNS) defines rape, specifying various forms of non-consensual sexual acts.

Acts constituting rape: Penetration, insertion of objects, manipulation, or oral sex without consent.
Circumstances:
(i) against her will;
(ii) without her consent;
(iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;
(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
(vi) with or without her consent, when she is under eighteen years of age;
(vii) when she is unable to communicate consent.
Exceptions:
-A medical procedure or intervention shall not constitute rape
– Sexual acts with a wife aged 18 or above (marital rape exemption).

The law aims to protect individuals from non-consensual sexual acts while acknowledging specific contexts.

What are the essentials of a valid consent?

Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Consent given by a girl of age below 18 years will not be a valid consent.