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YERRAM GEETHA,
Koneru Lakshmaiah Education Foundation, College of Law
ABSTARCT:
Marital rape occurs when the perpetrator is the victim's spouse. The definition of rape remains the same: sexual intercourse or sexual penetration without permission. As a result, proving a lack of consent is a necessary component in proving rape. Often, the victim bears the burden of proving the absence of consent. Minors are legally assumed incapable of consenting to sexual conduct. On the other side, there are other circumstances when consent is presumed to exist. This preconception is often present when the victim and perpetrator are married. In such cases, the concept of marital rape becomes contradictory. Only 52 countries now have legislation making marital rape a criminal offense. In many countries, including India, marital rape is not considered a criminal offense. Although rape is a felony in some nations, it is not enforced if the victim and perpetrator are married. This is commonly known as the' marital rape exclusion clause'. In these nations, there are four main reasons for not criminalizing marital rape. The first two explanations are no longer applicable in today's society due to progress towards gender equality.[i]
INTRODUCTION:
Considered a human rights violation Rape is defined as an act of forced sexual intercourse perpetrated by a man (husband) without the will or permission of a woman (wife). To subdue the defenceless victim, the rapist frequently uses violence, intimidation, and threats of severe consequences, forcing the victim to surrender to the perpetrator's carnal cravings. Rape takes various forms, including gang rape, date rape, child rape, serial rape, marital rape, statutory rape, mass rape by invading armies, incest, and many other widespread types of sexual assault on women's dignity. Women in a patriarchal society like ours were viewed as the property of their father and, after marriage, the property of their husband in ancient times. Rape was regarded damaging to her parent or husband rather than to the lady victim's dignity. The view that marriage itself gives consent to sexual intercourse and, on the other hand, the argument that forced sexual intercourse against free will or consent is rape, irrespective of the nature of the relationship between the man and woman, are the two conflicting schools of thought prevailing in our country. This research is a doctrinal study using secondary sources like as books, journals, and online databases.
The current research has the following objectives:
• To investigate the prevalence of marital rape in India.
• To investigate national and international legislative measures against marital rape.
• Suggestions for strengthening existing sociological, psychological, and legal procedures.[ii]
Prevalence of Marital Rape:
In India, marital rape is a prevalent but underreported type of sexual assault. Many women are afraid to report incidences of marital rape due to cultural and social expectations surrounding marriage and sexuality. Furthermore, victims find it far more difficult to seek justice because of the humiliation associated with marital rape and the lack of legal recognition of it.
According to a 2014 International Council for Women survey, 14% of women reported being victims of marital rape, while more than one-third of men admitted to forcing their spouses to have sex. Only 0.3% of women surveyed in several studies by the National Family Health Survey (NFHS) in 2016 reported being sexually assaulted by their spouses in the previous year. Experts believe that because many occurrences go unnoticed, the number of rape victims is far higher. Marital rape has been decriminalized in periphery and semi-periphery countries, as well as underdeveloped and developing countries, such as Indonesia, India, Nigeria, Sri Lanka, Tanzania, and Oman, among others. However, some industrialized countries, like Canada, the United Kingdom, and the United States, have recognized this as an illegal crime.
The Indian legal system acts as a deterrent for offenders:
In India, the legal system for rape and sexual assault is complex. Section 375 of the Indian Criminal Code, 1860 (IPC) defines rape as "illegal sexual activity with a woman without her permission. "In 2013, an exemption was added to the definition of rape (Exception 2) of Section 375, which states that "-sexual intercourse or sexual activities by a man with his wife who is not under the age of fifteen is not rape." This exclusion was challenged as discriminatory against married women and an infringement on their right to personal integrity. Furthermore, the Indian Penal Code is not the only statute that does not guarantee protection to victims.
However, the Domestic Violence Act of 2005, which was particularly established to protect women, makes no provision for marital rape. It defines marital rape as any type of sexual assault in a live-in relationship or marriage. However, there are procedures for victims to commence civil processes against the perpetrator rather than criminal proceedings. Civil remedies require the culprit to pay compensation merely and are not subject to the harsh requirements of criminal law.
The Justice J.S. Verma Committee was formed in 2017 in response to the 2012 Delhi Rape case. The committee suggested that this exception (which offers protection to the perpetrator following the rape) be removed from the Indian Penal Code. However, the Parliament did not consider this offer, stating that the institution of marriage could be destabilized if this exception was removed, and marital rape offenses would be difficult to prove due to the multiple legal intricacies involved.[iii]
What is the new ordinance on rape under criminal laws?
The Union Cabinet, led by Prime Minister Narendra Modi, has approved the Criminal Law (Amendment) Ordinance, 2018 to deter rape and expedite investigations and trials. The move follows recent alleged rape and murder cases in Jammu and Kashmir and Gujarat. The ordinance awaits President's approval:
The minimum punishment for women's rape has been increased from 7 years to 10 years, with the possibility of life imprisonment. Girls under 16 years old face a 20-year minimum, with the possibility of life imprisonment. Girls under 12 years old face a 20-year minimum, with the possibility of life imprisonment or death.
The government has prescribed a 2-month time limit for the investigation and trial of all rape cases, and a 6-month time limit for the disposal of appeals. The court has stated that anticipatory
bail is not available for individuals accused of rape or gang rape of a girl under 16, and 15days’ notice is required before bail decisions.[iv]
The establishment of a private space where fundamental rights cannot be enforced:
Analysing the court's resistance to addressing fundamental rights in the private realm requires following the path of rulings pertaining to the "restitution of conjugal rights" (or "RCR"). This is due to the fact that the arguments surrounding RCR and constitutional law are comparable to those surrounding marital rape. Although it is no longer in use in England, the RCR is a remedy that was first introduced there. It's a legal tool that allows a judge to compel a married couple to live together or to restore one spouse's marital rights against the other. This is covered in India in Section 9 of the Hindu Marriage Act (Hindu Marriage Act, 1956).
It's a legal tool that allows a judge to compel a married couple to live together or to restore one spouse's marital rights against the other. This is covered in Section 9 of the Hindu Marriage Act, 1956 (the "Hindu Marriage Act") in India. The main idea of the section is that the court may issue an RCR ruling if a husband or wife does not reside with the other spouse "without reasonable excuse." Women have been known to suffer as a result of RCR. Women are frequently pressured to go back into relationships with their husbands. The main argument here is whether the State can force a woman to have sex with her husband, much to the dispute over marital rape.[v]
The Decriminalization of Marital Rape: How India Is Still Denying Married Women Justice:
India is one of the few countries in the world that explicitly decriminalizes marital rape, despite being a signatory of the Universal Declaration of Human Rights (UDHR). The Indian Penal Code's Exception 2 of section 375 states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. The Indian Supreme Court increased marital consent from 15 to 18, arguing that excusing the marital rape of minors
was contrary to articles 14, 15, and 21 of the Constitution. However, rape continues to be decriminalized for married women over 18. The National Family Health Survey found that between 2019-2021, 32% of married women experienced physical, sexual, or emotional violence by their current husbands, and 82% of married women aged 18-49 who have experienced sexual violence reported their current husbands as the perpetrators. The Indian Parliament openly recognizes that marital rape causes incalculable harm in the Medical Termination of Pregnancy Act but refuses to criminalize it in the Penal Code. Permitting marital rape is inconsistent with India's constitutional values, as it has passed the Protection of Human Rights Act and ratified the Convention on the Elimination of All Forms of Discrimination against Women.
Rajiv Shakdher's 2022 judgment in RIT Foundation v The Union of India emphasized the constitutional human rights of married women, arguing that Exception 2 violates Article 14 of the Constitution, Article 15 (non-discrimination), Article 19(1)(a) (freedom of expression), and Article 21 (life and liberty). Despite petitions to criminalize marital rape, the Delhi High Court delivered a split verdict, and a new hearing was scheduled for March 2023. India must learn from its neighbours and avoid falling behind in repealing discriminatory legislation, as thousands of married women will continue to suffer human rights.[vi]
LANDMARK JUDICIAL INTERPRETATIONS:
Hrishikesh Sahoo Vs State of Karnataka (MANU/KA/1175/2022)
A woman filed a criminal complaint of rape against her husband for repeated sexual assault. Despite the marital rape exception, the police registered the complaint under Section 376. The husband sought to quash the proceedings, but Justice Nagaprasanna refused.
Justice Nagaprasanna argued that exempting husbands from sexual assault would undermine women's equality and discrimination. He argued that the Indian Constitution grants equal status to women, but the exception to marital rape is discriminatory as it treats women as subordinate to the husband. The Supreme Court of India diluted the exception in Independent Thought vs Union of India (2017). The exception to marital rape in common law was established by Chief Justice Matthew Hale in 1736, stating that marriage gave a woman's body to her husband. This principle was later translated into criminal codes, including the Indian Penal Code. In 1991,
the UK House of Lords abolished this exception in R. vs R. The Karnataka High Court has deemed the Section 375 exception to marital rape as regressive and in violation of the constitutional guarantee of equality.[vii]
Anjanaben Modha vs State of Gujarat in R/Criminal Misc. Application (For Successive Regular Bail – After Chargesheet) No. 20522 of 2023
The Gujarat High Court has ruled that rape is a crime regardless of whether it is committed by the victim's husband. The court highlighted that marital rape is illegal in many countries, including the United Kingdom, which abolished the exemption to section 376 exempting husbands from rape charges in 1991. The court also criticized the social attitude of trivializing offenses like eve-teasing and stalking. It also emphasized the importance of breaking the silence on gender violence, which is often hidden due to factors like unequal power dynamics, cultural norms, economic dependence, poverty, and alcohol consumption. The court dismissed a bail application related to charges of rape, outraging modesty, cruelty, and criminal intimidation against a woman, her husband, and son. The court emphasized the need for men to play a role in preventing and combating violence against women, denying bail to the applicant.[viii]
CONCLUSION:
Marital rape is a widely debated issue in India, with states prioritizing the implementation of laws to change the course of the crime. To deter perpetrators, different laws and guidelines are needed, imposing harsh penalties and setting an example for future generations. Comprehensive societal and legal reforms are needed to address the pervasive nature of marital rape, including amending existing laws, providing legal recourse for survivors, fostering a culture of consent, dispelling myths, and strengthening support networks.[ix]
REFERENCES:
[i] Raveena Rao Kallakuru & Pradyumna Soni, CRIMINALISATION OF MARITAL RAPE IN INDIA: UNDERSTANDING ITS CONSTITUTIONAL, CULTURAL AND LEGAL IMPACT, 11 NUJS L. Rev. 1, 2018, https://docs.manupatra.in/newsline/articles/Upload/8787A55C-D93F-4589-8A68-A9A032AFAF0E.pdf
[ii] Ashok Sharma, Marital rape: India’s legal labyrinth, IPLEADERS (Nov 29, 2023), https://blog.ipleaders.in/marital-rape-indias-legal-labyrinth/#Introduction
[iii] Puneet Chumber, Unveiling the Shadows: Exploring Marital Rape in India, KHURANA & KHURANA (13th
Jan, 2024), https://www.khuranaandkhurana.com/2024/01/13/unveiling-the-shadows-exploring-marital-rape-inindia/
[iv] Express Web Desk, what is the new ordinance on rape under criminal laws?, THE INDIAN EXPRESS (Jan
[v] Raveena Rao Kallakuru & Pradyumna Soni, CRIMINALISATION OF MARITAL RAPE IN INDIA:
UNDERSTANDING ITS CONSTITUTIONAL, CULTURAL AND LEGAL IMPACT, NUJS LAW REVIEW 1
(2018), http://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-PradyumnaSoni.pdf
[vi] Aisha Akram, The Decriminalisation of Marital Rape: How India Continues to Refuse Justice to its Married Women, OXFORD HUMAN RIGHTS HUB (Dec 6, 2023), https://ohrh.law.ox.ac.uk/the-decriminalisation-ofmarital-rape-how-india-continues-to-refuse-justice-to-its-married-women/
[vii] Marital Rape, CIVILS DAILY (Apr 4, 2022), https://www.civilsdaily.com/news/significance-of-the-karnatakahigh-judgment-on-the-marital-rape-exception/
[viii] Nunnem Gangte, Gujarat HC Affirms Marital Rape as a Crime, Citing Global Legal Trends, LEGALLY SPEAKING (Dec 18, 2023), https://legally-speaking.in/high-court/gujarat-hc-affirms-marital-rape-as-a-crimeciting-global-legal-trends/
[ix] Puneet Chumber, Unveiling the Shadows: Exploring Marital Rape in India, KHURANA & KHURANA (13th
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