MARITAL RAPE: AN UNSEEN CRIME (By: Tonujeet Banerjee)

MARITAL RAPE: AN UNSEEN CRIME

 

Authored by: Tonujeet Banerjee

Course: B.A.LL.B. University: Amity University

Abstract

 

Marital rape is one of the most concerning issues in our world. It is the most unseen crime in the world where no judiciary claim it as a crime. There are a very few countries where the marital rape is criminalised, otherwise it is somehow legal crime in countries. This is a rejection of law where it is stated that there is no rape between the husband and wife marriage relationship.

The main aim of this paper is to provide advice on the regulation of rape in marriage relations not only in India or Pakistan or any other Asian countries but all over the world, where this paper show the present and past scenario of married women in their in laws house.

 

Introduction

 

Rape is an unlawful sex without the assent of the man because of the physical drive or the danger or the deceitful of demonstration of perpetuators. In Indian context the rape is defined under the section 375 of IPC (Indian Penal Code)1860. It states that “A man commits rape when he,

1. penetrates his penis to any extent into the vagina, mouth, urethra, or anus of a women or makes her to do so with him or any other person, or
2. insert to any extent any object or a part of the body not being the penis into the vagina, the urethra, or anus of a women or makes her to do so with him or any other person,
3. manipulate any other part of the body of a woman so as to cause the penetration into the vagina, urethra, anus, or any other part of body of such women or makes her to do so with him or any other person,
4. applies his mouth to the vagina, anus, urethra of a women or makes her to do so with him or any other person,

So basically from this definition we can see the consent is very important for the sexual intercourse with the women. Even here the consent means any kind of voluntary agreement when the women given by words, gestures, or any form of verbal and non- verbal communication willing to participate in the sexual intercourse.

There are also few exceptions also:

1. A medical procedure or intervention shall not constitute rape
2. Sexual intercourse or sexual act by the man with his own wife, the wife not being under the 18 years’ changes from 15 years to 18 years is not considered as rape.

 

 

 

 

 

In the exception we can clearly see that the wife has no authority against her husband during the sexual intercourse. Through this there is clear violation of their own fundamental rights that is article 14, 19 & 21.

One of these are the landmark cases which is related to the marital rape: Independent thought v. UOI

In this case, the petitioner was Independent Thought, a national human rights organisation registered in 2009. In the public interest, the petitioner filed a writ petition under Article 32 claiming that the Exception 2 to Section 375 of IPC is both arbitrary and discriminatory towards a girl child.

 

 

The Criminal Law (Amendment) Act, 2013, increased the age of consent for sexual intercourse from 16 to 18 years. But the Exception 2 mentions non-consensual sex of a husband with his wife and for that, the age is above 15 years. The POCSO Act 2012 set the age of consensual sex as 18 years. Exception 2 is contradictory to Section 3 of the POCSO Act which has criminalised penetrative sexual assault.

 

 

Judgment

The Division Bench gave the following judgment while discussing all the relevant issues related to the case:

 

 

The exception 2 discriminates between a married girl child and an unmarried girl child without any reasonable nexus. It violates the bodily integrity, dignity and reproductive choice of a girl child.

The Parliament has increased the age for giving consent, the age from marriage to 18 years. So the age of 15 years in exception 2 is unreasonable, unjust, unfair and violates the right of the girl child.

The exception 2 states that sexual intercourse or sexual act by a man with his wife is not rape if she is above 18 years.1

 

 

 

 

 

 

 

 

 

 

 

 

1 Blog.ipleaders.in

 

Nimeshbhai Bharatbhai Desai v. State of Gujarat Fact:

In this case the petitioner was a newly married wife. After 6 months of their marriage the petitioner noticed a weird behaviour of her husband where her husband forcedly has sex with her. As she was the wife so for few months she keeps silence for her husband’s behaviour but soon her husband’s pervert increases and even sometime her husband threat her or have oral sex with her without the consent.

Even her in laws were aware about their son’s behaviour and they always encourage him to be same with her. So, after this scenario she have to file a complaint against her husband.

Judgement:

This Court is called upon to decide a question of utmost public importance. whether a wife can initiate prosecution against her husband for unnatural sex punishable under section 377 of the Indian Penal Code? If the husband forces his wife to indulge in oral sex, whether the same would constitute an offence under section 377 of the IPC? If the husband compels his wife to indulge in oral sex, whether the same would constitute an offence of cruelty within the meaning of section 498-A of the IPC. This Court would also like to examine the question whether forcing a wife by the husband to indulge in oral sex would amount to rape punishable under section 376 of the IPC.

1. Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.
2. Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non- consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.

During this case the Gujarat high court also mention some types of marital rape:

1. Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physical violent episode where the husband wants to make up and coerces his wife to have sex against her will. In most cases, the victims fall under this stated category.
2. * Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic and women who refuse sexual intercourse usually face such assaults.

 

1. * Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. This type has also been labelled as sadistic rape.2

Marital rape was very common but unseen crime in the country like India. The major loophole is that there is no punishment for the martial rape in the context of Indian Penal code 1860.

The doctrine of curvature is a topic where it will clear that why India or Pakistan or any other western countries don’t have a proper law against the marital rape.

 

The doctrine of curvature,” coverture, Anglo-American common-law concept, derived from feudal Norman custom, that dictated a woman’s subordinate legal status during marriage. Prior to marriage a woman could freely execute a will, enter into contracts, sue or be sued in her own name, and sell or give away her real estate or personal property as she wished. Once she married, however, her legal existence as an individual was suspended under “marital unity,” a legal fiction in which the husband and wife were considered a single entity: the husband. The husband exercised almost exclusive power and responsibility and rarely had to consult his wife to make decisions about property matters. Coverture rendered a woman unable to sue or be sued on her own behalf or to execute a will without her husband’s consent and, unless some prior specific provision separating a woman’s property from her husband’s had been made, stripped a woman of control over real and personal property. Coverture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s. The legal status of married women was a major issue in the struggle for woman suffrage.”

In our society people usually treat women as a property, before marriage they will live in their own house but after marriage they will go to her in laws house. They are not allowed to have their share in the property or in their sexual relations. They always suppressed in this patriarchy society where male is always dominated by them.

 

 

Noting that those rights and principles are enshrined in international instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Affirming that violation against the women is the violation of their rights and fundamental freedoms of women’s and impairing or nullifies their rights and concerned about the long- standing to promote and protect them from this cruel society.

that every effort be made so that it becomes generally known and respected:

 

Solemnly proclaims the following Declaration on the Elimination of Violence against Women and urges

Article 1

For the purposes of this Declaration, the term "violence against women" means any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or

suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether

occurring in public or in private life. Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

1. Physical, sexual and psychological violence occurring in the family, including battering, sexual

 

abuse of female children in the household, dowry-related violence, marital rape, female genital

mutilation and other traditional practices harmful to women, non-spousal violence and violence related

to exploitation;

1. Physical, sexual and psychological violence occurring within the general community, including

rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and

elsewhere, trafficking in women and forced prostitution;

1. Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it

occurs. Article 3

Women are entitled to the equal enjoyment and protection of all human rights and fundamental

freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter

alia:

 

1. The right to life;
2. The right to equality;
3. The right to liberty and security of person;
4. The right to equal protection under the law;
5. The right to be free from all forms of discrimination;
6. The right to the highest standard attainable of physical and mental health;
7. The right to just and favourable conditions of work;
8. The right not to be subjected to torture, or other cruel, inhuman or degrading treatment or

punishment.

Article 4

States should condemn violence against women and should not invoke any custom, tradition or

religious consideration to avoid their obligations with respect to its elimination. States should pursue

by all appropriate means and without delay a policy of eliminating violence against women and, to this

end, should:

 

 

2 Indian kanoon.com

 

1. Consider, where they have not yet done so, ratifying or acceding to the Convention on the

Elimination of All Forms of Discrimination against Women or withdrawing reservations to that

Convention;

1. Refrain from engaging in violence against women;
2. Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish

acts of violence against women, whether those acts are perpetrated by the State or by private

persons;

1. Develop penal, civil, labour and administrative sanctions in domestic legislation to punish and

redress the wrongs caused to women who are subjected to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national

legislation, to just and effective remedies for the harm that they have suffered; States should also

inform women of their rights in seeking redress through such mechanisms;

1. Consider the possibility of developing national plans of action to promote the protection of women

against any form of violence, or to include provisions for that purpose in plans already existing, taking

into account, as appropriate, such cooperation as can be provided by non-governmental organizations,

particularly those concerned with the issue of violence against women;

1. Develop, in a comprehensive way, preventive approaches and all those measures of a legal,

political, administrative and cultural nature that promote the protection of women against any form of

violence, and ensure that the re-victimization of women does not occur because of laws insensitive to

gender considerations, enforcement practices or other interventions;

1. Work to ensure, to the maximum extent feasible in the light of their available resources and,

where needed, within the framework of international cooperation, that women subjected to violence

and, where appropriate, their children have specialized assistance, such as rehabilitation, assistance in child care and maintenance, treatment, counselling, and health and social services, facilities and programmes, as well as support structures, and should take all other appropriate measures to promote their safety and physical and psychological rehabilitation;

1. Include in government budgets adequate resources for their activities related to the elimination of

violence against women;

1. 1. Take measures to ensure that law enforcement officers and public officials responsible for

implementing policies to prevent, investigate and punish violence against women receive training to

sensitize them to the needs of women;

1. Adopt all appropriate measures, especially in the field of education, to modify the social and

cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and

all other practices based on the idea of the inferiority or superiority of either of the sexes and on

stereotyped roles for men and women;

1. Promote research, collect data and compile statistics, especially concerning domestic violence,

relating to the prevalence of different forms of violence against women and encourage research on the

causes, nature, seriousness and consequences of violence against women and on the effectiveness of

measures implemented to prevent and redress violence against women; those statistics and findings of

the research will be made public;

1. Adopt measures directed towards the elimination of violence against women who are especially

vulnerable to violence;

1. Include, in submitting reports as required under relevant human rights instruments of the United

Nations, information pertaining to violence against women and measures taken to implement the

present Declaration;

1. Encourage the development of appropriate guidelines to assist in the implementation of the

principles set forth in the present Declaration;

• Recognize the important role of the women's movement and non-governmental organizations

 

worldwide in raising awareness and alleviating the problem of violence against women;

1. Facilitate and enhance the work of the women's movement and non-governmental organizations

and cooperate with them at local, national and regional levels;

1. Encourage intergovernmental regional organizations of which they are members to include the

elimination of violence against women in their programmes, as appropriate. Article 5

The organs and specialized agencies of the United Nations system should, within their respective fields

of competence, contribute to the recognition and realization of the rights and the principles set forth in

the present Declaration and, to this end, should, inter alia:

1. Foster international and regional cooperation with a view to defining regional strategies for

combating violence, exchanging experiences and financing programmes relating to the elimination of

violence against women;

1. Promote meetings and seminars with the aim of creating and raising awareness among all

persons of the issue of the elimination of violence against women;

1. Foster coordination and exchange within the United Nations system between human rights treaty

bodies to address the issue of violence against women effectively;

1. Include in analyses prepared by organizations and bodies of the United Nations system of social

trends and problems, such as the periodic reports on the world social situation, examination of trends

in violence against women;

1. Encourage coordination between organizations and bodies of the United Nations system to

incorporate the issue of violence against women into ongoing programmes, especially with reference to

 

groups of women particularly vulnerable to violence;

1. Promote the formulation of guidelines or manuals relating to violence against women, taking into

account the measures referred to in the present Declaration;

1. Consider the issue of the elimination of violence against women, as appropriate, in fulfilling them

mandates with respect to the implementation of human rights instruments;

1. Cooperate with non-governmental organizations in addressing the issue of violence against

women.

Article 6

Nothing in the present Declaration shall affect any provision that is more conducive to the elimination

of violence against women that may be contained in the legislation of a State or in any international

convention, treaty or other instrument in force in a State.3

 

Domestic violence is a human right issue. The human rights are the most basic rights or the fundamental rights given to the people of the society either she is a women or a men or a child. Marital rape is the cruellest domestic violence faced by the women in their own in laws house. But been the private relationship between a male or female the judiciary cannot interfere between them without the prior permission. But if a woman who is facing any kind of violence then it is the duty of the judiciary system or the laws of that country which should seek justice for them. The marital rape statistics is higher than a rape in a country and the only difference is that there is no proper law for them. This how the crime for martial rape is increasing day by day.

Why India is not criminalising the marital rape?

Opposing a bunch of pleas seeking to criminalise marital rape in the country, the Centre in its written submissions has told the high court that “India has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mind-set of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalising marital rape”.

Reiterating its earlier stand of 2017, the union government has said that ‘’there is a vast diversity in the cultures of Indian states and it is necessary to implead the state governments in the matter to know their opinion to avoid any complications at a later stage.’’ It said that even in its 172nd report titled Review of Rape Laws, the Law Commission has examined the matter and did not recommend the criminalisation of marital rape.

 

 

 

 

3 Declaration on the elimination of the violence against women

 

 

 

Marital rape scenario in United Kingdom

If we start from history then, the earliest written legal source on marital rape in the UK appeared in a 1736 treatise entitled History of the Pleas of the Crown by Sir Matthew Hale, a former Chief Justice of the Court of King’s Bench in England. Hale argued that “the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract”. This

perspective proved “extraordinarily influential” in other countries, many of whom published similar legislation, according to Professor Jill Elaine Hasday.

In 1822, barrister John Frederick Archbold published the mammoth legal tome Pleading and Evidence in Criminal Cases, which remains the leading practitioners’ text for criminal

lawyers in England and Wales. In it, he reiterated the position that a husband “cannot be guilty of a rape upon his wife”.

This remained the legal reality until a landmark court judgment in 1991. The previous year, a man identified only as “R”, was convicted of attempting to rape his wife, but challenged the decision citing the marital rape exemption laid out by Hale and Archbold.

 

 

Marital rape is outlawed in most countries around the world, but a review of laws in 82 countries by women’s rights organisation Equality Now between 2014 and 2015 found ten countries currently allow spousal rape. It was found that still in many countries the marital rape is legal these countries are Ghana, India, Indonesia, Pakistan, China, 13 African countries, all middle east countries, Qatar, Jordan, Nigeria, Singapore, Srilanka and Israel.

 

Countries Who Criminalize The Marital Rape:

United States of America where the largest democratic and the powerful country whose laws and political or the military background are well known to everyone in this country. The US law have the punishment for the marital or the spouse rape in their own country. In

1970s the marital rape was legal in all 50 US states. But after the 1975 in the case Oregon v. Rideout where the court first hold a marital rape case.

In this case 1977, Oregon passed a law removing marriage or cohabitation as a legal defence to a charge of rape. In 1978, Greta Rideout brought a charge of rape against her husband under the 1977 law. The alleged assault according to Greta Rideout occurred October 10, 1978, at their apartment in North Salem. Having been arguing recently and facing threats of violence from John, she had refused to have sex with him and attempted to leave the house. He then brought her back to the apartment and forced himself on her. When she tried to report this to the police, she was told according to Oregon law she had to wait two days to make a rape charge. He was then arrested a week later and the trial began two months after that on December 19, 1978. John became the first man in the United States to be charged with raping his wife while he was still living with her. There were other cases of marital rape charges brought before the courts in the United States prior to this, but they did not involve couples who had been cohabitating.

 

 

 

Conclusion:

Communication, honesty and respect make sexual relationships better. Asking for and obtaining consent shows respect for yourself and your partner. It eliminates the entitlement that one partner might feel over the other. Neither your body nor your sexuality belongs to someone else.