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CRIMINALISING MARITAL RAPE IN INDIA

Final draft submitted in fulfillment of the course Criminal Law - I, Semester III

during the academic year 2017-

Submitted by-

Vidushi Verma - 1662

C. Monica - 1617

Apoorva - 1614

Nandita Mishra - 1631

B.B.A LL.B

Submitted to-

Dr. Peter F. Ladis

September, 2017

Chanakya National Law University,

Mithapur, Patna, 800001

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ACKNOWLEDGEMENT

We are feeling highly elated to work on under the guidance of my Criminal Law I faculty. I am very grateful to him for the exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to bring more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance.

OBJECTIVE OF THE STUDY

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The objective of the research is to study what impact marital rape has on a woman physically as well as mentally and why she is required to be protected from such a heinous offence. The research also focuses on studying the significance of marital rape in IPC and finding the reasons why it has not been covered under the very definition of rape under Sec. 375. Further the researchers have tried to draw a comparison regarding the laws relating to such an offence in various countries arcross the globe and why in India it is the need of the hour to criminalize marital rape and serve people committing this offence with punishment equivalent to that of rape itself.

HYPOTHESIS

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The research has adopted the hypothesis that India is focusing on protection and prevention of crimes against women but fails to protect a married woman from her rapist who apparently in such cases is her husband, by not having any legal provisions acknowledging marital rape as a crime. Therefore, there is need for immediate criminalization of marital rape under IPC, 1860.

RESEARCH METHODOLOGY

The research includes different options. They are:

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• Exploratory research:

It is usually a small-scale study undertaken to define the exact nature of a problem and to gain a better understanding of the environment within which the problem has occurred. It is the initial research, before more conclusive research is under taken.

• Descriptive research:

It is to provide an accurate picture of some aspects of market environment. Descriptive research is used when the objective is to provide a systematic description that is as factual and accurate as possible. It provides the number of time something occurs, or frequency, lends itself to satisfied calculations such as determining average number of occurrences.

TABLE OF CONTENTS

INTRODUCTION......................................................................................................................................... 6

MARITAL RAPE – MEANING....................................................................................................................

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THEORIES OF MARITAL RAPE.............................................................................................................. 11

EFFECTS OF MARITAL RAPE.................................................................................................................

TYPES OF MARITAL RAPE..................................................................................................................... 15

MARITAL RAPE LAWS – A COMPARITIVE STUDY............................................................................

WHY MARITAL RAPE IS STILL NOT RECOGNISED AS CRIME.......................................................

INDIA’S LEGAL POSITION ON MARITAL RAPE................................................................................. 21

MARITAL RAPE : INFRINGEMENT OF FUNDAMENTAL RIGHTS................................................... 23

CONCLUSION AND SUGGESTIONS...................................................................................................... 24

INTRODUCTION

Humanity stands on two pillars, men and women, they should have equal importance and role in its development and growth, but women have always been subjected to a lot of humiliation by men, rape is an apt example of the atrocities committed against the dignity of women. The offence of Rape is one of the most gruesome and barbarous crimes perpetrated against women. Marital Rape, though not defined as a crime, in India is one of the most debatable and divergent issues. Women have been treated as an object of pleasure since time immemorial. They have

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been victims of crimes like rape, sodomy, sexual harassment, female infanticide etc. In recent times, where the general public is fighting for equal rights for both men and women the rate of crime against women is proliferating. Rape is a crime due to which women all over the world are suffering. Other countries have tried their best in making laws for the protection of women. India is focusing on protection and prevention of crimes against women but fails to protect a married woman from her rapist who apparently in such cases is her husband, by not having any legal provisions acknowledging marital rape as a crime. There is need for immediate criminalization of marital rape. This project submits the reason regarding the failure of law in India by not defining marital rape as a crime and the consequences of the same.

Violence against women is a manifestation of historic power play struggles between men and women, which has led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. 1

As Susan Brown miller asserts, “The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings.”^2

India is the seventh largest country in the world. Its population is over 1.2 billion and is the most-populous democracy in the world. It is a country with a blend of various religions, cultures, languages, customs, usages and much more. The crime rate in India is increasing at an alarming rate. As per the Crime Index for 2015 Mid-year, crime index in India is 46.82 3 and as per the reports of the National Crime Record Bureau, crime against women during the year 2013 was noted to be approximately 52.2.^4

It has been rightly said that the worth of a country can be judged from the position that it gives to women. Women have never been given importance in India; their position is still not what it

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1 The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993. 2 Susan Brown miller, Against Our Will: Men, Women and Rape (Penguin, 1975) p.18. 3 Crime Index for Country 2015 Mid Year, available at : http://www.numbeo.com/crime/ rankings_by_country.jsp 4 Rate of crime against women during 2013, available at : http://ncrb.gov.in

should have been. In India women have always been considered inferior to men which have led to India being developed as a country with male chauvinist ideologies. Women in India are subjected to criminal atrocities such as Rape, Domestic Violence, sexual harassment, trafficking and forced prostitution. This is just a small part of a never ending list of crimes against women.

Marriage, also called matrimony or wedlock, is a socially and legally recognized union between spouses that establishes rights and obligations between them, their children, and their in-laws^5. According to ancient Hindu scriptures no religious rite can be performed with perfection by a man without the participation of his wife. Wife’s participation is essential in any religious rite. Wives are thus befittingly called ‘Ardhangani’. They are supposed to be given not only importance but equal position with men. 6 But with reference to recent times it can be noticed that the position of women is deteriorating.

The idea of the “sacrosanct” institution of marriage portrayed in India is contrary and far from women’s perception of reality. Hidden under the iron veil of marriage lies the ugly truth of crimes like marital rape, domestic violence etc. Marital rape is not legally recognized as a crime in India and thus, there is no penalization for the same. Through this project, the researchers make an attempt to denounce the discrimination faced by women with regard to marital rape and the shortcomings of the Indian Judicial System by not conceding marital rape as an offence. The researchers also provide arguments and reasons supporting the need for criminalization of marital rape in India, and further suggest certain legal reforms essential to achieve the desired objectives.

MARITAL RAPE – MEANING

Marital rape refers to the sexual intercourse between a man and a woman, who are legally accepted as husband and wife, where the woman does not give consent for such intercourse. Marriage, as discussed earlier is an unimpeachable bond in which the man and woman vow to live together in happiness as well as in pain by greeting the flaws of each other. Marriage also gives a right to the husband and wife to lawfully consummate their marriage. Consummation is considered to be a necessary requisite after the marriage has taken place. Marriage is a stable

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5 Haviland, William A.; Prins, Harald E. L.; McBride, Bunny; Walrath, Dana (2011). Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning. 6 Dr. (Ms.) Rekha Singh , “ Status of Women in Indian Society”, available at: : https://www.bu.edu

relationship in which a man and a woman are socially permitted to have Children implying the right to sexual relation.^7

Being a part of the wedlock does not permit the man to forcefully have sex with his wife. The right to have sexual intercourse must be consensual and not an obligation of the wife. The wife should have the liberty to refuse to have sex and cannot be compelled by her husband to do it. Even today the legal ystem in India does not recognize marital rape as a crime. It is a debatable issue on which so far no conclusion has been drawn.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one spouse against the other. 8 To understand the complications of Marital Rape one must first understand the difference between Rape and Marital Rape as both the terms have different meanings and cannot be used interchangeably.

The dictionary meaning of word rape is “the ravishing or violation of a woman.” The summary of definition of Rape as defined and accepted by FBI is- “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” 9

According to Morton Hunt, “The typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing; if she isn’t, he has the right to force her. But in forcing her he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject.”^10

As per the Indian Penal Code, 1860, the definition of Rape under section 375, states that sexual intercourse with a woman would be constituted as rape if it is against her will or without her consent. If the consent of the woman is obtained by coercion or causing apprehension of grievous hurt or death, it will also be called rape. If a man fraudulently makes the woman believe that he is her husband and has intercourse with her , that is also rape. If a man has sexual intercourse with a woman who is unable to give consent due to unsoundness then it would also constitute rape.

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7 Meaning of Indian marriage, available at :http://vapsoft.org 8 Marital Rape, available at : http://rapeinfo.wordpress.com 9 Definition of rape, available at : https://www.fbi.gov 10 Morton Hunt, “Legal Rape,” Family Circle (January 9, 1979), p. 38.

Sexual intercourse with a girl who is under sixteen years of age would also be called as rape even if the girl consented for such intercourse. Apart from this the definition of rape also comprises of an exception which states that a man having sexual intercourse with his own wife, who is not under the age of fifteen years is not rape. Section 375, the provision of rape in the Indian Penal Code (IPC), echoes very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” There is clear preference of the rights of the husband over his wife against the wife’s right to herself. 11 It can be clearly seen that the exception to this section does not acknowledge a wife being raped by her husband, provided that she is above 15 years of age. The Indian Penal Code Simply overlooks an offence as atrocious as marital rape by not having a provision for it. Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one spouse against the other.^12 The court in a case said “Defense counsel rightly argued that IPC does not recognize concept of marital rape. If complainant was a legally wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes”. 13

THEORIES OF MARITAL RAPE

Various authors have over time come up with different theories regarding the occurrence of marital rape in the society: THE FEMINIST THEORY: This theory considers marital rape as a tool in the hands of the patriarchal society that is used to exercise control over women. They consider that the exemption given in cases of marital rape is a remnant of the earlier laws regarding women that considered them to be the property of the

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11 Dipa Dube, License to Rape: The Indian Viewpoint, Indian Institute of Technology – Rajiv Gandhi School of Intellectual Property Law, February 14, 2006 12 Marital Rape, available at : http://rapeinfo.wordpress.com 13 The Life and Times of an Indian Homemaker, available at : https://indianhomemaker.wordpress.com

husband. 14 The feminists are of the view that marital rape is nothing but a result of a power play by the male spouse in the marriage. 15 Radical feminists have gone to the extent of arguing that any form of heterosexual intercourse is based mainly on the desire of the man and is another form of oppression on women.^16 THE SOCIAL CONSTRUCTIONISM THEORY: The believers in the theory of social constructionism are of the view that men have dominated the society in law making and the political arena since ancient days. 17 Laws thus came as a reflection of the interest of men. Such laws considered women to be their husband’s property after marriage and hence, marital rape was considered an offence of lesser degree as compared with rape.^18 Some jurisdictions even considered that rape in a marriage is not rape at all.^19 The social constructionists believe that marital rape is a means through which men try to assert themselves over their wives so as to retain their long gained power over their property. 20

THE SEX-ROLE SOCIALIZATION THEORY: These theorists believe that it is the particular gender roles which guide the sexual interactions between the spouses in a marriage. In a marriage, women are always taught to be calm and passive, submissive whereas, men are trained to be dominant and aggressive. 21 Care and love are attributed to women. Men, on the other hand, are the major perpetrators of sexual entertainment with violent themes. 22 Sex role socialists are of the view that marital rape is nothing but an expression of the traditional perceptions of sex roles.^23

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14 Feminist Perspectives On Rape , Stanford Encyclopedia Of Philosophy, available at http://plato.stanford.edu/entries/feminism-rape 15 Marital Rape In India: A Radical Feminist Perspective , Tamanna Khosla, Mainstream Weekly, Vol III,

16 Radical Feminism On Rape , Izvorni Znanstiveni, The Hebrew University, 507. 17 A Review Of Marital rape , Patricia A. Resick, Research Gate, 332. 18 Encyclopedia Of Victimology And Crime Prevention , Bonnie S. Fisher, SAGE, 2010, 721. 19 Encyclopedia Of Domestic Violence , Nicky Ali Jackson, Routledge, 2007, 466. 20 Proximate And Ultimate Explanations Are Required For A Comprehensive Understanding Of Partner Rape , Aaron T. Goetz, Aggression And Violent Behaviour, Elsevior, 2. 21 A Review Of Marital rape , Patricia A. Resick, Research Gate, 332. 22 Social Perspectives On Violence , Thomas W Blume, Michigan Family Review, Vol. II, 3. 23 A Review Of Marital Rape. Aggression And Violent Behavior , Martin, E. K., Taft, C. T., & Resick, P. A. (2007). 12, 329.

EFFECTS OF MARITAL RAPE

Marital rape affects a woman drastically, it has always been thought that if a woman is raped by her partner it is comparatively less traumatic for her, but that is a myth. Research shows that marital rape has more severe and long lasting consequences for women because of the simple fact that the rapist is none other than her husband with whom she had expected to spend a lifetime of happiness.

The effects of marital rape can be broadly classified into two categories –

1. Physical effects – The physical effects of marital rape include injuries to private organs, bruises , torn muscles , lacerations, fatigue, fractures etc. women who are subjected to

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physical violence as well as rape suffer from other complications like blackened eyes , broken bones, and wounds inflicted by any sort of a weapon, during sexual violence.

Women also go through some gynaecological problems due to marital rape like miscarriages, infections, infertility and also the chance of contracting of various sexually transmitted diseases like HIV etc.

2. Psychological effects – The trauma a woman goes through when her own husband repeatedly rapes her cannot be explained in words. The psychological effects are far worse than the physical effects, some of the short term psychological effects are shock, fear , post traumatic stress , suicidal tendencies etc. the long term effects include eating disorders, depression , sexual dysfunction etc.

Marital rape or for that matter crimes against women can have numerous reasons , the most obvious being the desire of men to assert superiority over women other reasons can be sexual perversion of husband , or any small issue.

Our patriarchal and male dominated social system is the main reason behind the widespread gender inequality which leads to the suppression of the female counterpart in the society. Women in our society have never been given the same status and importance as men; they even don’t have the same rights as men. This gives men an unjustified edge over women which is very much exploited.

Another reason is the traditional role which a woman is expected to play regardless of her choice. Women are expected to be in the role of a pativrata stri which means a pure, faithful and obliging wife. Our society has limited the role of the woman to simply belonging to someone else, a daughter belonging to her father, a mother belonging to her children and the wife belonging to her husband. Slowly and steadily the role of a woman has been reduced just to belonging to someone else and having no identity of her own.

After marriage women are treated like a piece of property acquired by the husband. All these social norms and traditions gives the male ego a boost which leads to superiority complex in them, this causes men to start believing that they can do anything with their wives and that consent to sex is impliedly given when she agrees to marry him. So when after marriage, if the wife refuses to have consensual sex, they believe there’s nothing wrong in forcefully having sex

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with her. But what men forget in these situations is that any type of sex which is not consensual is called rape, and they knowingly or unknowingly are repeatedly raping their wives. Not having legislation against marital rape is biggest reason that men don’t think twice before raping their wives. Thus if a wife files a complaint against her husband she will have no specific legal remedy. So the notion of a ‘good wife’ is not good for women but for men only.

In a research it was concluded that a husband who forcefully tries to have sexual intercourse with his wife always has some intention behind it. The reasons can be to have a feeling of power over her, way of getting rid of his anger over her or due to some other tensions, having a sense of insecurity or inadequacy or in other words having an inferiority complex over her, having a sadistic nature and getting sexually aroused by causing her pain and fear, choosing coercive sex over consensual sex and finally to ensure a sense of entitlement. 24

Marital rape in itself is a type of domestic violence. It is an act of forceful and violent control and thus, sometimes includes physical abuse, emotional abuse, mental abuse, social abuse, financial abuse, spiritual abuse and usage of male privilege. Wife experiencing such forms of abuse, may doubt their own worth or sanity, and may have little self-confidence. Historically, women were seen as the property of their husbands – but it’s not necessary for wedding rings to be traded for ownership of a woman to be assumed – and those who were raped by boyfriends, fiancés and live-in partners can attest.^25

TYPES OF MARITAL RAPE

The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society^26

• Battering rape: In battering rapes, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

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24 Men who sexually assault their partners, available at : http://www.aphroditewounded.org 25 Intimate partner sexual violence: an overview, available at : http://www.aphroditewounded.org 26 Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000).

• Force-only rape: In what is called force-only rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.
• Obsessive rape: Other women experience what has been labeled sadistic or obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

MARITAL RAPE LAWS – A COMPARITIVE STUDY

Marital rape is a widespread problem for a woman that has existed for centuries throughout the world. 27 Despite this fact, marital rape has been largely overlooked in the rape and domestic violence literatures, this problem has received relatively little attention from social scientists, legal practitioners, the criminal justice system, and the society as a whole but after analyzing the need for reforms in the legal system regarding the penalization of various crimes against women and especially married women, various countries have acknowledged this as a crime with severe penalties. Marital rape is illegal in eighteen American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Some of such countries and penalization in their laws are as follows –

U.S.A

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27 Russell, 1990.

Rape is defined as any nonconsensual sexual intercourse between non-spouses and it has always been illegal. However, until 1975, every state had a “marital exemption” that allowed a husband to rape his wife without fear of legal consequences. By 1993, largely in response to the women’s rights and equality movement, every state and the District of Columbia had passed laws against marital rape. Since 1993, all 50 states and DC have enacted laws against marital rape. The only marital exemption that still exists in some states is for statutory rape. All states now recognize rape within marriage as a crime, and most charge the crime in the same way that rape between strangers would be charged.^28 U.K. The marital rape exemption was abolished in England and Wales in 1991 by the Appellate Committee of the House of Lords, in the case of R v R. The exemption had never been a rule of statute, having first been promulgated in 1736 in Matthew Hale’s History of the Pleas of the Crown, where Hale stated: But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract. Corresponding amendment to the statutory law was made through Section 147 of the Criminal Justice and Public Order Act,

1994. This judgment was also affirmed by the European Court of Human Rights in the decision of SW v. UK. Still many countries like India, Bangladesh, Pakistan, Yemen, Kuwait, Iran, and Egypt etc. have not accepted marital rape as a crime and thus there is no legal remedy available for victims of such crimes. But even in countries where it is a crime, the onus of proof still lies on the women. For women who are married it is difficult to prove that she has not consented for sexual intercourse thus complicating such provisions. INDIA Marital Rape, as described earlier, defined as any unwanted intercourse or penetration obtained by force, threat of force, or when the wife is unable to consent. 29 In India Marital Rape exists de facto and de jure.

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28 Marital Rape Laws, available at : http://www.criminaldefenselawyer.com 29 Bergen, 1996; Pagelow, 1984; Russell, 1990

Domestic violence has emerged as the single-largest crime against women. In 2013, the National Crime Records Bureau (NCRB) reported over 118,000 domestic violence cases, which made up a third of all crimes against women, far ahead of molestation (70,739) and rape (33,707). The number of reported domestic violence cases also shot up from a mere 50,703 in 2003 before the passage of the Domestic Violence Act, 2005. Sexual violence, including rape, falls within the larger ambit of domestic violence, but rape by husbands within marriages is a shadowy subject in India and exact numbers are hard to come by.^30

Sexual Offences against women have become a very sensitive issue in India. After the Delhi Gang Rape Case, the government of India tried to make and implement arduous laws keeping in mind the safety of women. Marital Rape although has still not been able to achieve status of a crime.

Article 14 of the Indian Constitution states “Equality before law.” It prevents state from discriminating amongst the citizens on any ground, but in regard to defining marital rape as a crime the State discriminates against women. As per exception of Section 375 of Indian Penal Code, a married female below the age of 15 years has a right to allege her husband against the charge of marital rape if her husband forces her to have sexual intercourse with him without her consent or will. The question arises that why this right curtailed is after she has attained the age of 15 years. Being in a marriage does not give the male the power or authority to dominate the female and fulfill his sexual needs. The article does not provide reasonable classification for this discrimination within the gender.

Moreover, this exception under section 375 of the Indian Penal Code is in itself contradictory because as per the Hindu Marriage Act 1955, Section 5 (c) (iii) the rightful age for a female to marriage is 18 years. Thus, this anyways leads to contradiction in laws prevailing in India.

Article 21 of the Indian Constitution states “Protection of life and personal liberty.” The article includes the right to live with personal liberty and dignity but if a female is forcefully asked to have a sexual intercourse with her husband then the validity of her right to exercise her personal liberty is questionable and her dignity is affected. Exception to Section 375 of Indian Penal Code violates this right given to all females.

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30 Behind closed doors: Marital rape in India, available at : http://www.livemint.com

Article 51A (e) of the Indian Constitution states that the fundamental duty of every Indian Citizen to renounce practices derogatory to the dignity of women.

The delay in the acknowledging marital rape as a crime is a fault on part of the Indian Judicial System, there is immediate need to criminalize marital rape in India. It violates the basic rights of women guaranteed by the Constitution of India.

WHY MARITAL RAPE IS STILL NOT RECOGNISED AS CRIME

So far in describing marital rape the only question that comes in one’s mind is that since everyone is aware about the subject matter and its adversities faced then why is marital rape still not recognized as a crime in India. Whether or not to criminalize rape within a marriage has long been debated in India. Apparently The United Nations has recommended India make it criminal for a man to rape his wife.

Criminalizing marital rape was also one of the suggestions of the Verma Committee, a three- member panel appointed to strengthen India’s sexual-assault laws in the wake of a brutal gang rape in 2012.The Justice Verma committee had suggested that marital rape should be made an offence, a key demand of women’s rights activists^31. According to the committee the IPC should differentiate between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about

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31 Ashish Mukherjee, Rape law ordinance, ndtv.com, Updated: February 02, 2013 13:48 IST

whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.^32 The then government, led by the Congress party, had rejected this proposal. A panel of lawmakers who opposed the move at the time argued it had “the potential of destroying the institution of marriage, if marital rape is brought under the law, the entire family system will be under great stress.” The government eventually passed a new sexual-assault law, which did not criminalize marital rape in 2013. 33

The government today says the cause for marital rape in India is poverty, religious beliefs, social customs and the mindset of the Indian society, among other things. As per the latest parliamentary discussions it seems like the current government led by India’s Bharatiya Janata Party-government, headed by Prime Minister Narendra Modi does not settle to introduce any plans relating to punishments or penalties for marital rape. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context,” Haribhai Parathibhai Chaudhary, a minister in India’s Ministry of Home Affairs, said in a written statement to India’s upper house of Parliament. He attributed this to “various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”

But contradictory to such statements, the Indian society is drastically changing, a marriage that supports violence should no longer be considered to be sacrosanct. The argument that Indian society is too traditional to criminalize marital rape is baseless and unreasonable; such propaganda should not be taken up by the government. The government should be clear on the agenda they want to promote, on one hand the officials and ministers rant on about gender equality, elimination of gender stereotypes and women empowerment by giving women an opportunity to stand equal to men in all aspects, while on the other hand they do not give women even the basic rights they deserve. At a time when the world’s most powerful democracies are legalizing same-sex marriage, the world’s largest democracy is doing nothing to help women getting raped by their husbands, hiding behind the veil of tradition. If tradition is the only barometer then Dalits would still be untouchable, temples and high-end jobs would remain out of bounds for many castes. Tradition cannot be used to defend the indefensible. On issues related to human rights we cannot discriminate against women on the basis of marital status. 34

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32 Government of India , Report : Justice Verma Committee , (Ministry of Home Affairs ,2013). 33 Modi Government’s Reasons Why Marital Rape Is Not a Crime , available at: http://blogs.wsj.com 34 Editorial , Rape is rape, The Times of India , May 1, 2015

INDIA’S LEGAL POSITION ON MARITAL RAPE

Marital Rape exception under Section 375 – The deep patriarchal norms present in the society have created a mindset that domestic violence is a private matter and should be settled within the four walls of the house. The burden lies on women to be bound by the social norms. Section 49835 of IPC is a remedy against violence in marriage, but it has a very limited scope and does not provide immediate relief.^36

Even under Section 375 of IPC, marital rape has been given as an exception. Thus victimised married women are denied state protection. Women under this statute are being divided in two groups: those below fifteen years and those separated from their husbands. Punishment of rape against girls below twelve years is imprisonment for ten years or more, while rape against girls under fifteen carries lesser punishment if the rapist is married to her.^37 Law Commission Report- In the 42 nd^ Report by the Law Commission it was recommended that criminal liability should be attached to intercourse of man with his minor wife. However, the Committee refused the recommendation stating that husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage. Further in 1983 with addition of Section 376A IPC, rape of judicially separated wife was criminalised.

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35 Sec. 498A, Indian Penal Code, 1860- Whoever being the husband of the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 36 Lawyers Collective, Staying Alive: On the Protection of Women from Domestic Violence Act 3(2005). 37 Sec. 376 of Indian Penal Code,1860.

Even the Justice J.S. Verma Committee Report recommended that exceptions allowing marital rape should be removed. It also included that marriage or an intimate relationship should not be mitigating factor in reducing sentences for rape.^38 Till now, this has been the only major recommendation made by any of the committee on marital rape.

Protection of Woman from Domestic Violence Act, 2005- Protection of Women from Domestic Violence Act, 2005 offers civil remedies for crimes against women including marital rape; it provides protection against domestic violence and sexual perversions.^39 It is quite unsatisfactory that violence against women should be seen as a civil wrong rather than criminal offence. If marital rape is made into a criminal wrong then it would act like a deterrent and prevent future crimes.

Criminal Amendment Act, 2013- The recent Criminal Amendment Act, 2013 satisfies some of the requirements that were proposed in the Law Commission Report in 172 nd^ Commission.^40 Section 375 has been expanded and the definition of rape under sub-section (a) states that rape includes penetration of penis in the mouth, urethra or anus of a woman against her will. 41 Further by addition of Section 376A, 376B, 376C and 376D rape laws have been made more stringent.

Even though there are many positive reforms brought by Criminal Amendment Act, 2013 yet it has a number of shortcomings. One of them being non-inclusion of marital rape within the ambit of the definition of rape. Various criminal law reports and recommendations given by Justice J.S. Verma Committee have fallen on deaf ears and it should be realised that punishment of marital rape is important to protect the woman.

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38 Report of the Committee on the Amendments to Criminal Law, Jan 23, 2013 Available at: http:// www.prsindia.org 39 Peter Foster, India outlaws wife-beating and marital rape , THE TELEGRAPH, Oct 27, 2006 Available at: http://www.telegraph.co.uk 40 Badapbiang T. Dkhar, Protecting India’s Woman: The need for Criminalization of Marital rape and Criminal Amendment Act, 2013 ,Alexis Journal of Public Policy and Law, Vol 1 Issue 1. 41 Criminal (Amendment) Act, 2013.

MARITAL RAPE : INFRINGEMENT OF FUNDAMENTAL RIGHTS

Several states have recognised marital rape as an offence breaking the chauvinistic view. In earlier times, a woman was considered to be the sexual property of the man. However, now this view has changed and she is equal to her husband. The exception under Art. 375 which permits a man to have sexual intercourse with his wife without her consent is the infringement of Article 14 and Article 21 of the Constitution. Article 14 protects a person from discrimination. But the exemption under Section 375 of IPC, 1860 discriminates a wife when it comes to protection from rape. Article 21 provides the fundamental right to life and live with human dignity. The current law fails to look at consent of a woman as an elementary condition for sexual element; and taking away the element of consent from married woman when cohabiting is not only immoral but also unconstitutional. 42 Even in Bodhisattwa Gautam v. Subhra Chakraborty^43 the Supreme Court said that ‘rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution.’ Yet the current law negates this very pronouncement by not recognizing marital rape, thus, directly violating the Right to life with dignity under Article 21.

The Constitution under Art.51A (e) states that it is the fundamental duty of every citizen of India to denounce practices that are derogatory to the dignity of woman. Thus the legislative framework should make amendment under Section 375 of IPC and save married woman who face evil of forceful sexual intrusion at the hands of their husband.

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42 Anjali Srivastava, Devanshu Jain and Ayan Hazra , Marital Rape: A legalized sin , Indian Journal of Applied Research, Vol. 3 Issue 2, Dec. 2013. 43 (1996)1 SCC 490.

CONCLUSION AND SUGGESTIONS

Despite the fact that marital rape receives little public, scholarly and legal attention, it is one of the most heinous crimes committed against the dignity of a woman. Marital Rape has never received the attention of Indian lawmakers. In India if a woman who is under 16 years of age has consensual sex, then it is termed as rape and just because a woman is married and even though her husband forcefully has sex with her then it isn’t rape. The idea of a woman being raped by her husband, and the fact that she cannot seek protection under any law in India is very disturbing. Marital rape disgraces the sanctity of marriage. Marital rape is domestic violence and is not justifiable on the basis of consent.

Various jurisdictions worldwide have either criminalized marital rape or are in the process of acknowledging it as a crime, thus breaking the shackles of traditionalism. A country like Nepal which has just recently abolished monarchy; the supreme court of Nepal has ruled that forced sex within marriage constitutes marital rape. India sadly lags far behind.

A wife getting raped by her husband is not only expected to remain quiet about such violence against her but also is suggested to learn to live with it. and continue living with her husband. The worst part being that the woman has to continue living with her rapist who apparently is her husband, for the rest of her life. Corresponding changes to respective matrimonial laws should be made. There is need for substantial changes in the law on sexual offences such as making them gender-neutral and eliminating the inequalities, a radical overhauling of the structure of sexual offences is not advisable.

The modern women in today’s time should be psychologically prepared and aware about such crimes. Women need to be educated regarding their rights. Al Anon once said “If you don’t like being a doormat then get off the floor.” Women suffering from such mistreatment should have the courage to stand up against it. The society as a whole should stand with women facing such torture and offer them their full support instead of ostracizing them.

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In the current scenario marital rape can be only seen as rape which is legally permissible that negates the element of consent from the woman. It is high time that the judicial system in India makes laws criminalizing marital rape to preserve the dignity of the women.

With respect to the above discussion, the following suggestions are made:

1. Marital rape should be recognized as an offence under the Indian Penal Code.

2. The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.

3. The lack of resistance on the part of the wife should not serve as a defence to the charge.

4. The legal position of marital rape should not only be recognized but also clearly defined; it should form a valid ground for divorce for the wife.

5. Apart from judicial awakening, general awareness of such offence by the citizens is also important.

It is important that there should be more awareness among women and capacity building is the need of hour. Societal stigmatization and the chauvinistic attitude of the people should change. Rape is rape and marriage cannot be an excuse for committing such a heinous offence. The first step to stop such an offence is to empower and educate the women to stand up against such inhumane acts would abolish the existing marital rape exemption. It is time that women should start raising voice against such injustice.

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BIBLIOGRAPHY

PRIMARY SOURCE

• BOOKS

✓ Ratanlal & Dhirajlal , the Indian Penal Code, 35 th^ edition,2017 ✓ S N Misra, Indian Penal Code, 2016 ✓ Gosselin, D.K. , Heavy Hands — An Introduction to the Crimes of Domestic Violence, 2000, 1 st^ edition ✓ Susan Brown miller , Against Our Will: Men, Women and Rape, 1975

SECONDARY SOURCE

• WEBSITES ✓ http://www.telegraph.co.uk ✓ http://www.numbeo.com/crime/rankings_by_country.jsp ✓ (^) http://ncrb.gov.in ✓ https://www.bu.edu ✓ http://vapsoft.org ✓ http://rapeinfo.wordpress.com ✓ https://www.fbi.gov ✓ http://rapeinfo.wordpress.com ✓ https://indianhomemaker.wordpress.com ✓ http://plato.stanford.edu/entries/feminism-rape ✓ http://www.aphroditewounded.org ✓ http://www.aphroditewounded.org

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