marital rape as ground for divorce, Summaries of Family Law

Download marital rape as ground for divorce and more Summaries Family Law in PDF only on Docsity! 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. 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 4exception 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 husband5. 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 husband6. 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 women7. 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 IPC8 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 159 . 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 10exempts 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. 11Justice 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 =375 11 Justice Dipak Mishra 12 Rape should not be a crime 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 imprisonment19. 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