RAPE AS AN OFFENCE AND THE MYTH OF MARITAL RAPE AS AN EXCEPTION
Rape is an internationally recognized crime that violates and individual’s integrity and autonomy. It is widely recognized as a serious crime. In India, rape is criminalized under section 375 and section 376 of the Indian Penal code where the definition of rape and its punishment is provided. Although the definition is detailed, nowhere in it do we see the mention of marital rape. Marital rape has fallen out of the purview of Indian law. There is no existing section or provision that criminalizes marital rape. Here, it is treated as an exception, not a crime. This distinction between rape as a crime and marital rape as an exception stems from deep rooted 'traditional’ values that rests on outdated assumptions about marriage and consent within marriage.
Rape is defined under section 375 of the Indian Penal Code and defines it as an act that is done against a woman’s will, without the consent of the woman or if the consent is obtained through coercion, intoxication, mental illness, deceit or under duress. The definition provided is quite detailed yet broad. It leaves room for interpretation so different situations that violate one’s bodily autonomy may come under its purview. Although it adopts such a broad understanding, exception 2 within this definition states that if the act is committed by a man against his own wife, the wife not being under 18 years, it does not amount to rape. Here, it is evident that the law has specifically excluded married women above the age of 18 and have left them no recourse in the event they are violated by their own husband. This exception has legally excluded nonconsensual sexual acts or intercourse within a marriage from falling under the umbrella of rape.
This poses a dangerous situation. This means all women above the age of 18 that are married and denied protection under the law from their husbands, even if the sexual act or intercourse is unwanted and forced. The law has, in this case, assumed that within a marriage, there is an implied consent or understanding within the two partners. Here the consent is also considered perpetual indicating the consent is assumed to be firstly, not explicit but implied and secondly, the consent is not needed to be obtained every single time and is considered as continuous.
Criminalizing rape and leaving marital rape as an exception originates from colonial English common law where it was viewed that marriage gave way to implied permanent consent. This view is extremely outdated and sees sexual access as a marital right rather than a consensual act. At the time when the IPC was drafted, a married woman was not considered a legal entity that was independent, rather, she was the chattel of her own husband. The exemption of marital rape from the offence of rape is largely influenced by this fact itself and form the ‘doctrine of coverture’ of merging a woman’s identity with that of her husbands.
Further, the marital exception was drafted based on Victorian patriarchal norms that did not recognize men and women as equals. Now we see that times have changed. Indian law recognizes men and women as equals and entities independent of each other. The constitution has provided us with the fundamental right of being treated as equals. There has been so much progress in the way our law has developed but it has remained stagnant in this situation. It has progressed, recognizing all citizens as equal regardless of their gender, enacting several guidelines and provisions like the Vishakha guidelines and the POSCH act for harassment and protection of women; yet marital rape remains an act that is yet to be criminalized.
Society often views marital rape as the exception and there are several reasons why. Firstly, many believe that the law mustn’t interfere within marital relationships. They view the marriage as sacrosanct and believe that the happenings within the marriage must remain private and must not be impede the institution. Many even misunderstand the concept of consent. They view consent as something that is automatically given after marriage. This consent is also viewed as something permanent and continuous rather than being viewed as revocable. In fact, consent must be obtained every single time any act must be performed and this consent must be absolutely explicit expressing willingness to participate. The consent cannot be obtained if the person granting it is being coerced, is intoxicates or is under duress. These are the general principles upon which consent lie but many believe that consent within marriage is above all that.
Many people argue against the criminalization of marital rape arguing that the provision may be misused in matrimonial disputes. Here, the argument falls short because in any case the legal provisions may be misused, but it is the duty of the courts and judiciary to seek out the truth and achieve true justice. The Centre argues that while a husband does not have a fundamental right to violate consent of the wife, terming such a violation as rape is excessively harsh and disproportionate. Criminalization of marital rape has received stark opposition not only from the masses but even from renowned judges like the former Chief Justice of India – Dipak Mishra who holds that it would destroy the institution of matrimony.
The justifications made truly and transparently prioritize the institution of marriage over the autonomy and safety married women.
Criminalizing marital rape was even one of the recommendations of the justice Verma committee formed in 2013. The report stated that the law must specify that the marital bond between the perpetrator and the victim cannot protect the crimes of rape. However, it wasn’t given much weightage. In fact, the Parliament gave its opinion that criminalizing marital rape would defeat the marriage institution and would create more havoc than achieve justice.
It must be noted that many countries have even abolished the marital rape exception. For example, The United Kingdom criminalized marital rape through R v. R in the House of Lords in 1991. In the United States of America, all 50 states recognize marital rape as a crime. Further, in Canada and New Zealand, there is no distinction made between victims that are married and unmarried. There are over 50 countries globally that criminalize marital rape. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also requires equal protection for women within marriage. India remains one of the country’s that is yet to criminalize the act of marital rape.
Although India is yet to criminalize marital rape, there is movement within the country seeking change. Shashi Tharoor, a Member of Parliament has been an advocate for criminalizing marital rape. He introduced a Private Member’s Bill seeking removal of the marital rape exception along with an affirmative consent standard. In other words, only yes means yes. He stated that the exception is a colonial relic that is incompatible with modern constitutional values. Further, marriage cannot justify or protect sexual violence and married women should not be denied protection for the same.
There can be certain dangers to excluding marital rape from rape law. It runs the risk of legal impunity for the husbands. Here the husbands face not rape charges for forced sexual acts or intercourse within their marriage. There are also inadequate alternatives to provide relief to the victims. Although there are several other provisions that provide protection for sexual violence like the Domestic violence act or section 498A (cruelty by husband or relatives), none of them recognize marital rape as a crime neither do they provide relief for the same. This also means that many victims of marital rape may not come forward and report the injustice because there is no legal recognition for their suffering. It only encourages them to remain silent for there is no recourse even if they speak up.
The only we can achieve real justice is through reform. There must be legislative reform where the exception 2 from section 375 of the IPC that provides the exception of marital rape is removed. Further, the approach must be consent focused where consent should be considered as mandatory in all sexual relationships regardless of the marital status of the individuals involved. Spreading awareness and educating the public by busting myths is the only way one can change the mindset of not only the legal community but the people themselves.
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