marital rape as ground for divorce, Summaries of Family Law

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SUBMISSION OF ASSIGNMENT FOR FULFILLMENT OF BA LL.B.

DEGREE

➢ NAME OF THE STUDENT: Aditya Aggarwal ➢ ENROLLMENT NUMBER: 03025503821 ➢ SEMESTER: 3RD ➢ NAME OF THE SUBJECT TEACHER: PROF. DIKSHA SAREEN ➢ DESIGNATION OF SUBJECT TEACHER: Assistant Professor ➢ Topic : Marital Rape As Grounds For Divorce

➢ ACKNOWLEDGEMENT BY STUDENT

I would like to express my greatest appreciation to all individuals who have helped and supported me throughout the project. I am thankful to my Family Law PROF. DIKSHA SAREEN for her ongoing support during the project, from initial advice, and encouragement, which led to the final report of this project. I wish to thank my parents as well for their undivided support and interest who inspired me and encouraged me to go my own way, without whom I would be unable to complete my project.

➢ UNDERTAKING BY STUDENT

This is to certify that the research paper on Marital Rape As Grounds For Divorce has been prepared by ADITYA AGGARWAL , a student of JEMTEC LAW SCHOOL under my supervision and guidance. I recommend it for evaluation

Abstract

Law is not something that can be left stagnant, law also require updates like any other things in the world. One of the latest requirements of the time is recognition of marital rape as a ground of divorce. Right to protection, personal choice is given to every individual then why should a marriage woman be left abdomen. It is important to understand the present scenario, women who marries her husband with a belief to be respected and protected but gets tortured and forced to have undesired sexual intercourse. This is not justified and needs urgent regulation to protect women’s health an save her from mental trauma and insure her wellbeing. This paper is about criminalizing marital rape and adding marital rape as a ground of divorce. Keywords: criminalization, marital rape, rape, marriage, divorce etc.

Introduction

Rape is the gravest kind of sexual violence against an individual- an extreme manifestation occurring in the continues sequence of sexual violence which nullifies the human rights of an individual completely. According to section 375 1 of the Indian penal code, rape is defined as, “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman without her will and consent.” Or It is said that Rape stems from sexist value and beliefs and it is not any normalized issue that is affecting individual women. Whereas it is a social as well as a political issue directly connected to imbalance of power between men and women. Marital rape is a rape committed when the evil doer is the victim’s spouse^2. Where the definition of the rape remains the same, which means that the essential ingredient to prove the crime of rape is to prove lack of consent. Where the burden of prove is on the victim. In some instances, consent it is assumed that consent does not exist, i.e., minor’s consent. On other hand, in some cases consent does to even matter, and are assumed to exist, i.e., married women/ wife^3. (^1) IPC-1860 SEC-375 =RAPE (^2) In this context the wrong doer is assumed to be always husband not wife. (^3) IPC, 1860 SEC-375 ,EXCEPTION 2.

At present 150 countries have criminalized the offence of marital rape and there are only 36 countries left, which include India. It is surprising that countries recognize rape as a crime and prescribes penalty for the same, they exempt the cases when a martial relationship exists between the victim and the evil doer. The exception is named as “marital rape (^4) exception clause”. There are four main justification given for not criminalizing the offence of marital rape. With the passage of time and advancement in the gender equality, first two have been almost eliminated. First justification - Wife understood as subservient of the husband^5. Thus it is said that there is no scope of rape in marriage since husband is assumed to be master of his wife. Second justification - A married women does not have any individual identity. An identity of a married women combines with her husband i.e., ‘the unities theory’ which means after marriage the identity women mergers with that of her husband^6. Third justification- “the implied consent” theory i.e., after marriage it is widely assumed that when a man and women enter into marital contract, the consent to sex preexist. Marriage is considered to be a civil contract and consent to sexual activities is thought to be the defining element of this contract. Fourth justification- the most recent and vague, that criminal law must not interfere in the marital relationship, since martial issues are once personal problem and must be dealt in private sphere. (^4) Exception of marital rape (^5) The sex right: a legal history of marital rape exemption (^6) “To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment”, 99(6) HARVARD LAW REVIEW, 1256 (1986).

HISTORY OF MARITAL RAPE IN INDIA

Sec- 375 of IPC has a wider scope of rape which includes both sexual intercourse and other sexual penetration such as oral, anal of the women^7. the exception 2 of the same section excludes the application of rape crime in case of husband and wife. The exception to the crime can be due to an irrefutable presumption of a consent established in the relation of victim and the evil doer. Legislature decides to excludes the married couple form the section giving the holiness of the relation believed by the society. This is probable since according to sec 376B of the IPC^8 where spouses are exempted from this exception, i.e., when the husband and wife are on judicial separation. On analysis of these two sections (375 & 376B) it can be assumed that legislature beliefs that husband and wife living together is an ingredient that denotes the consent for sexual intercourse. The first report to deal with the rape was issued by the 42nd^ Law Commission. As it rightly said that many amendments were witness. The report is limited to the extent to understand that how the law commission views the marital rape. In this report the 2 important suggestions were made that first were was the in case of judicial separation the exception clause must not be applied. The reason was unclear that “in such a case, the marriage technically subsists, and if the husband has sexual intercourse with her against her will or her consent, he cannot be charged with the offence of rape”. This does not appear to be right this statement is seemed to be vague since it does not give a reason why this exception not right. And in second reason it was noticed that non-consensual sexual intercourse between girl aged between 12 and 15^9. (^7) Sec-375 of IPC-1860 the criminal law amendment act- 20145 (^8) Sec-376B of THE IPC (^9) Non consensual sexual intercourse.

Marital rape – A non-criminalised crime in India

The definition of rape codified in Section 375 of the Indian Penal Code includes all forms of sexual assault involving non-consensual intercourse with a woman. However, exception 2 to section 375 10 exempts unwilling sexual intercourse between a husband and wife above fifteen years of age and thus safe such acts from prosecution. As per ongoing law, a wife is presumed to deliver consent to have sexual intercourse with her husband post entering into matrimonial relations. While unwilling sexual contact between a husband and a wife is deemed as a criminal offence in almost every country of the world. India is one of the 36 countries that still have not criminalised marital rape. The concept that once a woman is married, she hands over her perpetual sexual consent to her husband is deeply embedded in our society. Marital rape is hard to deal with as the assailant is someone the woman knows, loves and trust. Marital rape usually goes unnoticed due to family obligations or fear of husband, financial dependence on husband, safeguarding the future of their children, or because of limited laws that protect the victims of marital rape. In India, marital rape is hidden behind the sacrosanct curtains of marriage. Even though many legal amendments have been done in criminal law for safeguarding women, the non- criminalisation of marital rape in India sabotage the dignity and human rights of women. The concept of marital rape in India is the essence of what we call “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be an offence. (^11) Justice D. Mishra pronounced that 12 “marital rape should not be a crime because it will create absolute anarchy in many families”. Our country is sustaining itself because of the family platform which upholds family values.” Social practice and ethics create such an environment where matrimonial rape can not be criminalised. (^10) Exception 2 of the IPC-1860 = (^11) Justice Dipak Mishra (^12) Rape should not be a crime

MARITAL RAPE: VIOLATION OF FUNDAMENTAL RIGHT.

Law commission mentioned a lot of time that omitting of exception clause will be to much interference within once’s private sphere but criminalizing cruelty under sec- 376B is also interference in once private sphere. If the state decides to not penetrate the privacy in case of rape, women will be left with no legal remedy when get raped by her husband. Fundamental rights are the one every individual is born with; so, why has judiciary created illusionary private sphere where they are so reluctant to penetrate to deliver justice. Which brings us to the question, where marital rape is an infringement to once fundamental rights. In order to understand engagement of fundamental right to private sphere, the constitutionality of ‘ restitution of conjugal rights’^13 under sec- 914 of Hindu marriage act,

1956. According to this section court me order the party (who distanced the other party socially) to live with the other party. In other words, “if a husband or wife does not live with the other spouse ‘without reasonable excuse’, the court can grant a decree of Restitution of Conjugal rights” or we can say court is compelling the women to have sexual relationship with her husband, only because he does not have reasonable excuse to deny for that. Isn’t this the penetration to the private sphere. There are cases in which court strike the constitutionality of the sec-6 of HMA on the basis of violation of article 14, 19, 21 of the constitution. the court stated that the Restitution of Conjugal rights are violation once right to choose her preference to have sexual relationship. But also held that RCR^15 is not related to marital rape and both are independent. In Harvinder Kaur v. Harmander Singh^16 the Delhi high court stated that the sec-9 of HMA was not to establish sexual relation or force women to give forced consent for the sexual activity, it was just “to protect the institution of marriage” the court further added that the marriage is not just to establish sexual relation but are many other relationships that encompasses a marriage. And ignored the question of marital rape by stating that it is “marital privacy”. So, this means states are selective to penetrate the imaginary privacy sphere, state feels ok to invade once privacy/ marital sphere in case of restitution of conjugal rights under sec-9 of HMA, cruelty under sec-376B of IPC, §377 of IPC, sec-497 of IPC. Which means state can force someone to establish sexual relation with someone, can punish someone for cruelty committed in once private sphere, can interfere (^13) The Hindu marriage act-1956 sec- 9 (^14) Soon in 27- 5 - 1976 it was amended by the 68 amendment act. (^15) RCR-Restitution of Conjugal Rights (^16) Case law Harvinder Kaur v. Harmander Singh

in once sexual preference that to consented. But cannot criminalize marital rape when the same state has criminalized rape.

Criminalisation of marital rape

The justice J.S. Verma Report^17 is the landmark report in the history of debate on marital rape. As discussed above, the committee gave some suggestions to criminalize marital rape.26 The committee asked for the removal of the exemption clause, it asked to specifically mention that it is not a defence, that there would not be a presumption of consent and lastly, that the quantum of punishment is the same. But the 42nd Law commission responded by stating that marital rape is to be put under separate section, moreover not to be called as “marital rape’ and also have different punishment. A. marriage relationship: not a walkout: Merely omission of exception clause in sec- 375 IPC is not sufficient to ensure the crime of marital rape is covered. Because, this will lead to too must judicial interpretation thus increase in judicial cases and discretion. A separate definition must be established and if exceptions laid, should be clearly stated to reduce the scope of too much interpretation.

B. Presumption of consent: as stated by J.S. Verma consent is not something to be

presumed in the case of marital rape. But practically judiciary will no-doubted look into some threshold of force to understand consent in such cases. There are three ways to treat consent while criminalizing marital rape. One, assume consent and leave burden of proof on victim; second, assume no consent and leave burden of proof on evil doer to establish consent. Third, the most important draw a particular system to trace consent in special cases like marital rape using Indian evidence act. The above-mentioned ways have its own backdrops, since an sexual act is committed in a private sphere/ inside four walls. And producing evident to prove consent/ no-consent will be difficult for both the parties. As per todays law, usage of force is not essential to prove consent in cases of marital rape.28 Moreover, as stated in Uday v. State of Karnataka,^18 .consent is understood on the basis of circumstantial evidence. Keeping into consideration the nature of crime, producing evidence will be extremely difficult and a minor gap of interpretation will can also lead to false rape charges to take revenge and can also lead (^17) J.S. Verma Report (^18) Uday v. State of Karnataka,

to more crime against women since evidence production is hard, men will feel safe from any kind of eviction.

C. Problems in case of marital rape. Existence of sexual intercourse is not evident to

prove marital rape. Since it is assumed that married couple will engage in sexual intercourse31. Thus, differentiating marital rape form the normal rape case. ii. The presence of evidence of sexual intercourse along with signs of physical injury, or other form of cruelty can be considered as sign of marital rape. iii. History of assault, domestic violence, can be attached to the women testimony just to ensure the series of cruelty against women by husband. But this will be contradicting sec-53 and 54 of the Indian evidence act, 1872 which says that any past bad character of an individual is not relevant to present case.

D. Punishment policy: The punishment for marital rape must be same as the punishment

of rape under sec-376 of IPC that is 7 years to life imprisonment^19. Since the offence as well as the ingredients of the crime is same i.e., absence of free will and consent. Moreover, an addition of a clause of marital rape as a ground of divorce under every marriage act i.e., Hindu marriage act, Muslim marriage act, Parsi marriage act, etc. (^19) Punishment under 376 OF IPC

Grounds for divorce

There are primarily two marriage acts in India the Hindu marriage act 1955 and special marriage act 1954, but there are some legislative acts to govern the marriages in minority groups namely Muslim marriage act, 1939; Parsi marriage and divorce act,1862; Indian Christian marriage act, 1872. But grounds of divorce are same across all the acts, i.e., cruelty, male being impotent at the time of marriage, husband lost for four year, no maintenance given for two year, adultery, change in religion, failed to maintain restitution of conjugal right for two year, etc. From all the decrees given by the act for divorce, it is clear that any king of cruelty, assault, not able to perform martial functions like sexual intercourse, distancing for more than 2 year or not taking care of the partner which means that state has penetrated the “privacy sphere” or “marital sphere” and granting cruelty as a ground give the scope of validity for marital rape as a ground of divorce. As stated about rape is a heinous crime against an individual which includes- assault, violence, morality deterioration. Further keeping in mind, the punishment for rape, seven years is the minimum punishment given to the convicted person thus separation of husband from wife for more than 4 year, also if the husband is punished with 7 years if imprisonment it is a decree of divorce under sec-2 clause iii of the dissolution of Muslim marriage act, 1939.^20

Conclusion

so from the above context we came here as there are no laws before on the marital rape as ground for the divorce but after the amendment there were some laws were made before these laws came in the existence the woman were assaulted by his husband or on the name of the dharma or as his right on her. But after this law came into the force now the women can file a petition of divorce against husband under the article 14,19,21 and the husband can be made liable under the sec- 375,376b of the IPC. (^20) Sec-2 of the dissolution of the muslim marriage act- 1939