penalising marital rape in india, Study Guides, Projects, Research of Criminal Law

Download penalising marital rape in india and more Study Guides, Projects, Research Criminal Law in PDF only on Docsity! CRIMINALISING MARITAL RAPE IN INDIA Final draft submitted in fulfillment of the course Criminal Law - I, Semester III during the academic year 2017-18 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 CRIMINALIZING MARITAL RAPE IN INDIA 1 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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 CRIMINALIZING MARITAL RAPE IN INDIA 2 | Page CHANAKYA NATIONAL LAW UNIVERSITY • 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....................................................................................................................9 CRIMINALIZING MARITAL RAPE IN INDIA 5 | Page CHANAKYA NATIONAL LAW UNIVERSITY THEORIES OF MARITAL RAPE.............................................................................................................. 11 EFFECTS OF MARITAL RAPE.................................................................................................................13 TYPES OF MARITAL RAPE..................................................................................................................... 15 MARITAL RAPE LAWS – A COMPARITIVE STUDY............................................................................16 WHY MARITAL RAPE IS STILL NOT RECOGNISED AS CRIME.......................................................19 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 CRIMINALIZING MARITAL RAPE IN INDIA 6 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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 46.823 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 CRIMINALIZING MARITAL RAPE IN INDIA 7 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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 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.11It 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.12The 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 CRIMINALIZING MARITAL RAPE IN INDIA 10 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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 CRIMINALIZING MARITAL RAPE IN INDIA 11 | Page CHANAKYA NATIONAL LAW UNIVERSITY 14Feminist 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, 2. 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 CRIMINALIZING MARITAL RAPE IN INDIA 12 | Page CHANAKYA NATIONAL LAW UNIVERSITY • 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.27Despite 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 CRIMINALIZING MARITAL RAPE IN INDIA 15 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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.29In India Marital Rape exists de facto and de jure. CRIMINALIZING MARITAL RAPE IN INDIA 16 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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. CRIMINALIZING MARITAL RAPE IN INDIA 17 | Page CHANAKYA NATIONAL LAW UNIVERSITY 30 Behind closed doors: Marital rape in India, available at : http://www.livemint.com 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 49835of 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 42nd 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. CRIMINALIZING MARITAL RAPE IN INDIA 20 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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.38Till 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 172nd 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. CRIMINALIZING MARITAL RAPE IN INDIA 21 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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 Chakraborty43the 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. CRIMINALIZING MARITAL RAPE IN INDIA 22 | Page CHANAKYA NATIONAL LAW UNIVERSITY 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. BIBLIOGRAPHY PRIMARY SOURCE • BOOKS ✓ Ratanlal & Dhirajlal , the Indian Penal Code, 35th edition,2017 ✓ S N Misra, Indian Penal Code, 2016 ✓ Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence, 2000, 1st 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 CRIMINALIZING MARITAL RAPE IN INDIA 25 | Page CHANAKYA NATIONAL LAW UNIVERSITY ✓ http://www.criminaldefenselawyer.com ✓ http://www.livemint.com ✓ http://blogs.wsj.com ✓ http:// www.prsindia.org CRIMINALIZING MARITAL RAPE IN INDIA 26 | Page CHANAKYA NATIONAL LAW UNIVERSITY