NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BANGALORE
FAMILY LAW- I
MARITAL RAPE
SUBMITTED BY:
ABHINAVA KRISHNA
ID NO- 2033
BA (LLB) HONS.
2nd Year, 5th Trimester
DATE OF SUBMISSION- AUGUST 7, 2014
TABLE OF CONTENT
1. Table of statute
2. Table of cases
3. Introduction
4. Marital exemption- origin and rationale
5. Marital rape and laws in India
6. Marital rape from family law aspect
7. Marital rape vis-à-vis constitution of India
8. Judicial stand
9. Conclusion
10. Bibliography
TABLE OF STATUTES
i. The constitution of India.
ii. The Dissolution of Muslim marriages act, 1939.
iii. The Divorce act, 1869.
iv. The Hindu marriage act, 1955.
v. The Indian penal code, 1860.
vi. The Parsi marriage and divorce act, 1936.
vii. The Special marriage act, 1954
TABLE OF CASES
i. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 196 SC 922.
ii. Sakshi v. Union of India, AIR 2004 (5) SCC 518.
iii. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80.
iv. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
v. Munn v. Illinois, 94 US 113 (1877).
vi. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, 811.
vii. Francis Corallie Muin v. Union Territory of Delhi, AIR 1981 SC 802.
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viii. The Chairman, Railway Board v. Chandrima Das¸ AIR 2000 SC 988.
ix. Kharak Singh v. State of U.P., AIR 1963 SC 1295.
x. Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
xi. Neera Mathur v. LIC, (1992) 1 SCC 286.
xii. Maharashtra v. Madhkar Narayan, AIR 1991 SC 207.
xiii. Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
xiv. CESC Ltd. v. Subhash Chandra, (1992) 1 SCC 441.
xv. Regional Director, ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100.
xvi. Ajay Hasia v. Khalid Mujib, AIR 1981 S 487.
xvii. Queen Empress v. Haree Mythee, [(1891) ILR 18 Cal. 49].
xviii. Emperor v. Shahu Mehrab, [AIR 1917 Sind 42].
xix. Saretha v. T. Venkata Subbaiah, [AIR 1983 AP 356].
Introduction
When we come across the word rape, the impression we get is that of a perpetrator who is stranger to a woman. Usually, we do not think of the fact that rape can exist in a marriage as well. It is hard to believe that a husband rapes his wife because he is thought to exercise his conjugal rights. This indicates that a woman has no right, even to her own body and is subject to the will of the husband. Even though masochism in marriage in the form of marital rape is the most prevalent in the present scenario, it has escaped the arms of law. Marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. Despite its predominance, it has received very little attention even by the criminal justice system which seeks to promote peace in the society by punishing criminals.
The word rape as it originally means “to seize” is a coercive, non-consensual intercourse with a woman. It is an offence against a woman’s property. The Supreme Court has held it to be a ‘deathless shame and the gravest crime against human dignity. However, the legislators intend to protect a woman’s property only against the outsiders and not the husband due to which marital rape is found in exception clause if we look at section 376 of the Indian penal code. In India, a woman is considered to be the property of her husband and a man cannot be perceived to violate his own property. Marital rape is quite complex as the nature of a marital relationship makes it hard for a woman to even consider herself as a victim. This is the reason behind under-reporting of marital rape cases. Even if she wants to report, she is unable to because of her financial dependence on her husband. Many countries have either enacted a marital rape law, or have repealed marital rape exceptions or have started treating marital rape and ordinary rape on an equal pedestal. This indicates that marital rape is seen to be as violation of human rights. However, in India, marital rape is hidden behind the sacrosanct of marriage. Many legislations have been enacted in India which protect women inside the four walls of a matrimonial house, which include laws against dowry, domestic violence, cruelty, etc. However, the biggest matter of concern is that no law has been made against marital rape. Those women who are raped by their husband are most likely to be raped a number of times as she is in a bonded relationship with the husband.
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MARITAL EXEMPTION- ORIGIN AND RATIONALE
From very ancient times, husbands have been given the right to force their wives as to have sexual intercourse with them. As discussed earlier, the meaning of the word rape also gives a license to rape to the husbands. Rape means to have sexual intercourse with a woman other than the wife without her consent. Thus, it provides complete impunity to husbands even if they force their wives to have sex. The foundation of the concept of marital rape exemption can be traced back to the statement made by Sir Matthew Hale, Chief justice of England in the 17th century where he said that,
“The husband cannot be guilty of rape committed by himself upon his lawful wife, for by
their mutual consent and contract, the wife hath given up herself this kind unto her
husband which she cannot retract.”
According to Lord Hale, a wife upon marriage submits her legal person to her husband and consents to all sexual acts and she cannot retract from this for any reason whatsoever in the future. He introduced the concept of ‘implied consent’ within a marriage, which existed during the entire course of the marriage life and this consent was irrevocable. John Stuart Mill, way back in 1869 had observed that marital rape is never acceptable to a woman as it lowers her dignity and puts her at a stature below that of a slave. The principle of marital rape exemption is based on irrevocable implied consent. The other justifications for the marital rape exemption were the common law doctrines that a woman was the property of her husband and the legal existence of a woman was incorporated and consolidated into that of a husband.
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MARITAL RAPE AND LAWS IN INDIA
We do not consider marital rape as an offence. Despite various amendments, legislations, and law commissions, one of the most debilitating acts is not looked at as a crime in India. A look at the options a woman has to protect herself in a marriage tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.
Section 375 of the Indian penal code deals with rape and it contains explicitly the exemption clause which says that “Sexual intercourse by man with his wife, the wife not being under 15 years of age, is not rape.” Section 376 is the punishment section for rape. It also contains a provision which says that a man can be held liable for rape against his wife only if she is under 12 years of age and the punishment prescribed is for a term which may extend to 2 years or with fine or with both. This provision clearly shows that a rape within a marital bond is possible only if the wife is below 12 years of age. If she is between 12 to 15 years of age, the provision still applies but attracts a milder punishment. Once she crosses 15, she has no legal protection which is in contravention to human rights regulations. Indian law provides the minimum age for marriage to be 18 for girls and the same law provides protection to girls against sexual abuse only up to 15 years. An amendment took place in the Indian penal code in 1983 which provided for the criminalization of spousal rape during the period of spousal separation.
As per the Indian Penal Code, the instances wherein the husband can be criminally
prosecuted for an offence of marital rape are as under:
1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment
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upto 2 years or fine, or both;
2. When the wife is below 12 years of age, offence punishable with imprisonment of either
description for a term which shall not be less than 7 years but which may extend to life or
for a term extending up to 10 years and shall also be liable to fine.
3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years
and fine;
4. Rape of wife of above 15 years in age is not punishable.
The protection of women from domestic violence act was passed in 2005. It did not consider marital rape as a crime; however, it did recognise marital rape as a form of domestic violence. This act says that if a woman undergoes the pain of marital rape, she can approach the court and obtain a decree for judicial separation. This is not sufficient and much needs to be done by the legislature in this field. The definition of rape as enshrined in section 375 of the IPC needs to be changed. There are provisions for women to protect her right to life and liberty but not her body within a marriage. Till now, women have recourse under section 498A of the IPC which does not say anything about marital rape.
MARITAL RAPE FROM FAMILY LAW ASPECT
Marital rape is not explicitly mentioned in any of the marriage or divorce acts of the different communities in india. It is not considered as a ground for divorce in these statutes. We shall look at the provisions of these statutes which are relevant for our purpose.
THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
SECTION 2 of this act deals with the grounds for decree for dissolution of marriage. Clause (viii) of this section mentions cruelty as a ground and lays down six conditions under which an act shall be considered as cruel and hence the decree can be granted. When we look at those six conditions, there is no mention of marital rape as a cruel act and hence, it is not considered as a ground for decree for dissolution of marriage as far as this act is concerned.
THE DIVORCE ACT, 1869
Section 10 of this act deals with grounds for dissolution of marriage. Under this section, clause (x) deals with cruelty. It says that a decree can be granted when the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. Though it can be said that marital rape can come under such cruel act but the deliberate omission of the word ‘marital rape’ shows that the legislature does not intend to consider it as a ground for divorce.
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THE HINDU MARRIAGE ACT, 1955
Section 13 is the divorce section in the Hindu marriage act. This act also does not provide the proviso for considering marital rape as a ground for divorce. In other words, it also accepts the notion that after the marriage, there is a licence to rape to the husband.
THE PARSI MARRIAGE AND DIVORCE ACT, 1936
Section 32(dd) says that when the defendant treats the petitioner with such a cruelty that the court feels it improper to compel the plaintiff to live with the husband, then either a decree for divorce or for judicial separation can be granted. This act also does not recognise marital rape as an offence.
THE SPECIAL MARRIAGE ACT, 1954
This act also, like the Hindu marriage act, mentions cruelty as a ground for divorce but does not include marital rape within its purview.
Almost all of these acts recognise the fact of husband having sex with some woman other than the spouse to be a ground for divorce but when it comes to having forced sexual intercourse with one’s own wife, they are silent. The conclusion is that women do not have recourse under any of these acts if they are a victim of marital rape.
CONSTITUTION OF INDIA VIS-A-VIS MARITAL EXEMPTION TO RAPE
The constitution of a country is the fundamental text of the nation. The Indian constitution enshrines its ideals in the preamble. According to the constitution, every law that is passed in India has to be in accordance with the constitution. Any law which does not conform to the principles in the constitution is ultra vires and can be declared unconstitutional by the courts. Looking from this angle, the researcher is going to show how the doctrine of marital rape does not conform to some of the provisions of the constitution, such as article 14 and article 21.
EQUAL PROTECTION OF LAW
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Article 14 deals with equality before law; every citizen of India is equal before the eyes of law. However, this does not mean that each and every individual has to be treated equally. It only means that like has to be treated alike. Equals within a society shall not be treated unequally. The two requisites of a valid classification were laid down by the Supreme Court as early as in 1952:
1. The classification has to be based on intelligible differentia which distinguishes those that are grouped together from others.
2. The differentia must have a rational relation to the object sought to be achieved by the legislation.
Thus, any law making unnecessary classification would be ultra vires the provisions of the constitution. And the most important thing is that unreasonable classification based on gender shall never be made.
Section 375 of the IPC makes rape a criminal offence, and thus protects women from sexual intercourse by any person against her will also without her consent. This section seeks to protect the autonomy of the body of a woman against any forceful sexual threat and also shows the interest of the state in prosecuting those who violate the bodily autonomy of a woman. However, the point to be noted here is that despite the intention of protecting the bodily autonomy of a woman, section 375 provides an exemption clause which permits forceful sexual intercourse within marital bonds. The exemption does not provide protection to a woman by way of section 375 only because of her marital status. The contention of the researcher is that these assumptions are highly illogical and irrational and do not satisfy the criteria of intelligible differentia.
Withdrawing the protection of section 375 to a woman just on the basis of her marital status is in contravention to the intention of the legislation and hence is not in accordance with article 14 of the constitution.
RIGHT TO LIFE AND PERSONAL LIBERTY
Article 21 of the Indian constitution says that no person shall be deprived of his life or personal liberty except according to procedure established by law. After the case of Maneka Gandhi v. Union of India, it has become the source of all forms of right aimed at protection of human life and liberty. The meaning of life has significantly been expanded and it can be seen in the case of Munn v. Illinois where Field J. stated that life means “something more than animal existence”, and it was further endorsed by the Supreme Court in the case of Bandhua Mukti Morcha v. Union of India.
Marital rape violates article 21 of the constitution by taking away the bodily autonomy and liberty of a woman. It violates many rights under article 21. There can be no better example of blatant violation of article 21. The exemption clause under article 375 which justifies marital rape is violative of the right of piracy, of the right to bodily autonomy and the right to live with dignity. Thus, summing up, it is violative of article 21 of the constitution which seeks to protect the right to life and liberty of all citizens.
RIGHT TO LIVE WITH HUMAN DIGNITY
Article 21 also includes the right to live with human dignity and all the other things that go along with it, such as the bare necessities of life which include right to food, right to clothing, and right to shelter over the head and facilities for reading, writing, and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings.
In many cases, the Supreme Court has held that the crime of rape affects the right to life along with right to live with human dignity of a woman. It has been held by the highest court of the country that rape is not only on offence against a particular person but against the entire society. Not only can it be considered as a sexual offence but also an offence directed at degrading the humility of women. Considering this fact, allowing marital rape exception is a direct violation of the dignity of a woman. Allowing husband to rape their wives as and when they wish is a blatant violation of article 21 of the constitution.
RIGHT TO SEXUAL PRIVACY
There is no any separate article in the constitution which discusses about the right to privacy. However, it has been held by the Supreme Court that right to privacy is guaranteed under article 21. This article gives us the right to be alone as and when we wish. Thus, sexual intercourse by force of any type is violative of the right to privacy.
In the case of state of Maharashtra v. Madhkar Narayan, the Supreme Court held that sexual privacy is the right of every woman and no one is entitled to breach it as per his wish. In the case of Vishakha v. State of Rajasthan, this right to sexual privacy was extended to workplaces as well. On the same line, the right to sexual privacy should have been extended even within a marital relationship. However, by not doing so, the law makers have shown a clear indication that they do not recognise this right to a woman when she enters into a marital bond.
RIGHT TO BODILY SELF-DETERMINATION
Though this right is also not explicitly recognised by the constitution, it is implicit under article 21 of the constitution. This right says that an individual has the sole right over matters associated with his/her body. It also includes consent to sex which shall depend solely on the wish of an individual. A law which takes away this right can be said to be violative of this right. Thus, the marital rape exemption doctrine is clearly violative of this right to bodily self-determination and hence, is unconstitutional.
RIGHT TO GOOD HEALTH
This is another right which thought not explicit, comes under article 21 of the constitution. It is another ground on which marital rape exemption can be held to be unconstitutional. The marital rape exemption is a gross violation of this right as it not only affects the physical health of the individual but also psychological. It pushes woman into a deep emotional trauma. Also, in many cases, forceful sexual intercourse leads to the transmission of sexually transmitted disease to the victim.
The Supreme Court has held in many cases that any law which involves article 14 and article 21 must pass the reasonability test if it has to be incorporated within the constitution. However, in the case of marital rape, it is quite conspicuous that it is highly unjust and unreasonable.
JUDICIAL STAND
There have been many decisions given by the judiciary which relate to the infliction of injury by the husband to the wife. In the case of Queen Empress v. Haree Mythee, it was observed that there is marital exemption to rape when the wife crosses the age of 15. However, the court also said that despite this fact, the husband cannot disregard the physical safety of wife even when she is above 15 years of age. In this case, the husband was held guilty under section 338 of the IPC for rupturing the vagina of her 11 year old wife, thereby leading to her death.
The case of Emperor v. Shahu Mehrab is an example where the husband caused the death of his child wife by negligent and rash act of sexual intercourse and hence was convicted under section 304A of the IPC.
In the case of Saretha v. T. Venkata Subbaiah, the Andhra Pradesh High court held :
“There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person.”
There is another case named state of Maharashtra v. Madhukar Narayan Mandikar, in which the court held that even a prostitute has the right of privacy over one’s own body. Thus, it is sad to see that while the court recognises the right to bodily privacy of all women, it does not recognise the same for a married woman. In the case of Sree Kumar v. Pearly Karun, the Kerala high court held that since the wife was not living separately from the husband under a decree of judicial separation, the act of husband forcing her to have sexual intercourse with him does not attract the provisions of section 376A.
The courts have continuously held the doctrine of marital rape exemption to be valid and it has even gone on to say that the stigma associated with rape can be salvaged by getting the woman married to the rapist. A relationship of marriage is considered sacrosanct; even then the heinous act of marital rape is ignored thereby marking a disgrace on this sacrosanct relationship. How the judiciary can ignore such basic right of bodily protection to a married woman is a question which goes unanswered.
Conclusion
Rape within a marriage is such a thing that it leaves the woman in an agonizing pain. Not only do they have to face it, but also they have to face it silently which affects the psyche of a woman to a great extent. This silence which is self-enforced deeply affects the mental, emotional, and psychological stability of a woman. However, if we look at this closely, we will find that this is not so. The silence is not self-enforced but it is because of the lack of marital rape laws in our country and also the social stigma attached to it. These are the prime reasons that this evil practice is hidden behind the sacrosanct of marriage. Though it is true that the woman has been protected by the law when it comes to a perpetrator who is an outsider, but when it comes to her own husband with whom she marries with such great expectations, there is no remedy.
Thus, this view that a woman has to have sex with her husband whether she wishes or not is not acceptable if we believe in the concept of dignity of everyone. There is no justification or support for the exemption of marital rape in current times. Though it is true that mere criminalizing marital rape would not suffice our purpose, yet it would be an important step towards protecting the women from the cruel intentions of their husbands. It would really prove to improve the post marriage experience of women. It is time to understand that rape is rape irrespective of the fact that the rapist is woman’s husband itself and this has to be recognised and strictly put into force by law.
Bibliography
1. BOOKS
i. J.S. Mill, The subjection of womened, (1988).
ii. Matthew Hale, The history of the pleas of the crown, (1972).
2. ARTICLES
i. To Have and to Hold- The Marital Rape Exemption and the Fourteenth Amendment, (1986).
——————————————–
[ 1 ]. Bodhisattwa Gautam v. Subhra Chakraborty, air 1996 sc 922.
[ 2 ]. Matthew Hale, history of the pleas of the crown, 629, (1972).
[ 3 ]. J.S. Mill, the subjection of womened, 33 (JPM Ediociones, 2011).
[ 4 ]. To Have and to Hold- The Marital Rape Exemption and the Fourteenth Amendment, 99 harvard law review 1255,1256 (1986).
[ 5 ]. The section 375 of the Indian Penal Code (45 of 1860) reads: —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —
First.— Against her will.
Secondly.—Without her consent.
Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.— With or without her consent, when she is under sixteen years of age.
Explanation
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. —Sexual intercourse by a man with his own wife,. the wife not being under fifteen years of age, is not rape.
[ 6 ]. Indian Penal Code (45 of 1860), Section 376A. Intercourse by a man with his wife during separation.—Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
[ 7 ]. Indian Penal Code (45 of 1860), Section 376(1).
[ 8 ]. Id.
[ 9 ]. Indian Penal Code (45 of 1860), Section 376A.
[ 10 ]. Indian Penal Code (45 of 1860), Exception to Section 375.
[ 11 ]. The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).
[ 12 ]. The Constitution of India, Article 14.
[ 13 ]. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80.
[ 14 ]. The Constitution of India, Article 21.
[ 15 ]. AIR 1978 SC 597.
[ 16 ]. 94 US 113 (1877).
[ 17 ]. AIR 1984 SC 802, 811.
[ 18 ]. Francis Corallie Muin v. Union Territory of Delhi, AIR 1981 SC 802.
[ 19 ]. The Chairman, Railway Board v. Chandrima Das¸ AIR 2000 SC 988.
[ 20 ]. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1196 SC 922.
[ 21 ]. Kharak Singh v. State of U.P., AIR 1963 SC 1295; Govind v. State of Madhya Pradesh, AIR 1975 SC 1378; Neera Mathur v. LIC, (1992) 1 SCC 286.
[ 22 ]. AIR 1991 SC 207.
[ 23 ]. AIR 1997 SC 3011.
[ 24 ]. CESC Ltd. v. Subhash Chandra, (1992) 1 SCC 441; Regional Director, ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100.
[ 25 ]. Ajay Hasia v. Khalid Mujib, AIR 1981 S 487.
[ 26 ]. [(1891) ILR 18 Cal. 49].
[ 27 ]. [AIR 1917 Sind 42].
[ 28 ]. [AIR 1983 AP 356].
[ 29 ]. AIR 1991 SC 207.
