THE DEBATE OF CRIMINALIZING MARITAL RAPE IN INDIA

This article is written by Vanshika Kasturi, a 3rd year law student at DSNLU, Vishakhapatnam

“A female slave has an admitted right, and is considered under a moral obligation, to refuse her master the last familiarity. Not so the wife. However brutal a tyrant she may unfortunately be chained to… he can claim from her and enforce the lowest degradation of human being, that of being made the instrument of an animal function contrary to her inclinations”[i]

Definition of marital rape

Marital Rape refers to unwelcome and unsolicited intercourse by a man with his wife attained by ‘force, threat of force, or physical violence,’ or when she is incapable to give consent. Marital rape could be by the use of force only, a beating rape or a sadistic/obsessive rape. It is a non-consensual act of vehement violence by a husband against his wife, whereby she is physically and sexually abused.

Marital rape reflects the perversity of an individual. It is not only a violation of a woman’s body but her love and trust as well. Being subjected to sexual violence by her own husband envelopes her in a sense of insecurity and fear. Her human rights are sacrificed at the altar of marriage. The Indian Penal Code, 1860 (IPC) has dealt with this form of rape in a very piecemeal manner. Various provisions of the IPC relating to sexuality reinforce not only Victorian morality but also the non-agency of women.[ii]

Why is marital rape an acceptable form of violence against women in India?

Marital rape is a problem that has been plaguing society since times immemorial. It is something that many societies accept as an integral part of society, since sexual intercourse with the husband is deemed to be an essential part of the wife’s duties irrespective of whether she has consented or not.

Even in the 21st century people and the government are of the view that criminalizing marital rape is going to destabilize the institution of marriage and destroy is sanctity. “Sexual relations between two individuals who are legally married or have been cohabiting fall within the ambit of Marital privacy. But the crucial lacuna of this form of privacy is that it protects the privacy of the men and oppress the voice of the women.”

Catharine MacKinnon, the American feminist and legal scholar, in her work ‘Toward a Feminist Theory of the State’ is of the view that “it is not the women’s privacy that is being protected here , it is the men.” In patriarchal societies men usually gain an upper hand because women, especially wives, are considered to be submissive and are expected to adhere to the demands of the husband without raising her voice or voicing her consent. Given the rise of domestic violence rates in the country, we can agree with MacKinnon’s justification that privacy provides a veneer for male domination.

Law regarding marital rape

Countries across the world have criminalized marital rape, but that isn’t the case with India. This may be attributed to the patriarchal nature of society or the manner in which women are treated, however, either way it is considered to be an essential part of the wifely duties to please the husband in all necessary forms including sexual intercourse in accordance with the husband’s desire.

Section 375 of the IPC does not recognize rape as a crime within the confines of a marriage. This arises from a colonial sense of subservience in which spousal consent in a marriage is presumed. Article 375 creates an exemption for those people who “have Sexual intercourse or sexual act by a man with his wife, the wife not being under 15 year of age is not rape.”

It is widely believed across the country that sexual privileges are won as an added benefit by the men in the marriage association. Women generally carry no voice as their consent is not considered to be essential in the institution of marriage. The roots of such a problem are engraved into the tapestry of society by the notion of values and ethics, but on an aggregate level they are just deep-rooted stems of patriarchy. “This characterization, in itself, demeans a married woman’s right to choose her sexual partner, and has been interpreted as a violation of the right to equality and equal protection of the law under Article 14 of the Constitution of India, as well as the right to life and personal liberty under Article 21.”

It is the general tendency of the men in a society that is essentially patriarchal females are considered to be a submissive element of the matrimonial relation and therefore forceful sexual intercourse is considered to be justified as because it is traditionally considered to be a part of her marital duty to have sexual intercourse with the husband.

In Independent Thought v. Union of India and Anr, a division bench of the Supreme Court of India partially read down an archaic exception to the offense of rape, finding that a husband who rapes his minor wife cannot be exempted from prosecution. However, the day the wife attains the age of majority, she falls outside the purview of this law.

Furthermore, section 9 of the Hindu Marriage Act , 1955, which deals with the restitution of conjugal rights, is another aspect of law which curtails the right of females by captivating her in a bond that demands to reciprocate marital obligations against her express consent. Holding that sexual intercourse, like marital cohabitation, was a choice that was to be actively and deliberately exercised by a woman throughout her marriage, it was acknowledged that any compulsion to the same was an infringement of a woman’s right to privacy.

The High Court of Andhra Pradesh in the year 1984 first broke open this shell of spatial privacy in its powerful judgment of T. Sareetha vs T. Venkata Subbaiah where the Court held that section 9 of The Hindu Marriage Act “unfairly and grossly vitiated the privacy of a woman by compelling her to reciprocate marital obligations against her express consent. Holding that sexual intercourse, like marital cohabitation, was a choice that was to be actively and deliberately exercised by a woman throughout her marriage, the Court acknowledged that any compulsion to the same was an infringement of a woman’s right to privacy .” A year later, the High Court of Delhi in the case of Harvinder Kaur v. Harmandar Singh Choudhry protected the spatial construct of marital privacy when it likened the introduction of constitutional law in the home to letting loose a bull in a china shop, to the detriment of the institution of marriage and all that it stood for.

In the landmark judgement of Justice K.S.Puttaswamy(Retd) vs Union Of India the Supreme Court determined that privacy is a right that must be afforded to the individual, not to her marital connotation.

The social dichotomy

There are two voices when this issue is raised. One says this is has to be criminalized due to the fact the rights of each married and unmarried girls are the identical, and, our Constitution recognizes this equality under Article 14 of the Indian constitution which enshrines equality. On the other hand, the opposite organization advocates in opposition to it via mentioning it is common sense that criminalizing marital rape could “destabilize the institution of marriage “. This question offers a sudden prod towards inquisitiveness; the institution of marriage is given better priority than the rights of females. Now it’s not a hidden reality that both women and men are equal. So why do women have to constantly go through with this torture? That is one question that is yet to be answered but essentially speaking the patriarchal society plays a crucial role in determining the social position of women.

The role of culture

While most developed nations of the world have criminalized marital rape, shockingly, there is no law to protect married women against marital rape in India. This has been advocated on the ground that marital rape cannot be made a criminal offense in India in view of high illiteracy rate, poverty, outrageous religious convictions and the very 'holiness' of marriage.

A marriage is a bond of trust, love and warmth. Without a doubt, sex is an ordinary aspect of marriage however utilization of power or viciousness or forcing one into sex is against bodily integrity and emotions of the concerned spouse. Accepted, the spouse can bring a criminal case against her significant other for criminal assault or injury or matrimonial relief for forcible sex, however what is required is the incorporation of marital rape in our legitimate framework. The wife must be respected and honored.

Laws offers an outright immunity to the husband in regard to his wife, exclusively based on the conjugal relation which is absolutely against basic human rights. In the event that a woman agrees to get married, it does not imply that she agrees to be raped or assaulted by her significant other. She has likewise her entity and the line drawn between rape inside marriage and rape outside marriage is obsolete

Conclusion

How can the law disregard such desecration of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse? The ambiguity of this question never seizes to surprise one, in this country where females are portrayed as allegories or epitomizes of power or shakti the men of the same country disregard their wives and threat them with absolute disrespect, the patriarchal structure of Indian society has deemed marriage to be an authorization to legitimized unwilling sex. There is a total nullification of the self-worth of a woman.

The concept of privacy is all encompassing. It finds utility, and in reality, is a fundamental need and right. Privacy is the enabler through which girls/women can efficiently assert their claims to equality and liberty. For women to be able to talk up in their marriages, their relationships, and their public presence, there ought to be the introduction of an area where they are able to exercising their potential to do so.

[i] Mill, J.S., The Subjection of Womened. S.M. Okin, Indianapolis, Hacket, 1988, p. 33. [ii] Kumari, Ved, “Gender Analysis of the Indian Penal Code in Engendering Law: Essays in the honour of Lotika Sarkar” ( Amita Dhanda & Archana Parashar eds.) , p. 143.