DOCTRINE OF COVERTURE AND MARITAL RAPE by - Ishita Ayala

DOCTRINE OF COVERTURE AND MARITAL RAPE

Authored by - Ishita Ayala

ABSTRACT

This paper aims to analyze the concepts of coverture and marital rape and advances the idea that marital rape exception is detrimental to women. Marital rape is a product of marriages steeped in patriarchy and how this particular exception to rape leads to the erosion of bodily autonomy for the woman whose identity is inextricably linked to that of her husband, who can abuse her and face no legal repercussions presently.

KEYWORDS

consent, doctrine of coverture, marital rape exception

RESEARCH METHODOLOGY

The methodology followed for the research is the doctrinal method which implies that secondary sources such as articles and journals were utilized to gain a holistic perspective of the topic on hand.

CITATION METHOD

The citation method is Harvard Bluebook 20th Edition and has been used uniformly throughout the project.

INTRODUCTION

The doctrine of coverture means that women have no individual identity in the sphere of their marriage. Marital rape is forced intercourse during a subsisting marriage with the lack of consent being the key determinant. The husband may use coercion and physical force if the woman is unwilling. The author argues that marital rape is an extension of coverture as it renders the woman, a body solely subsisting for the man’s pleasure.

India is one of the 30 odd countries globally which has not criminalized marital rape.1 Politicians such as Maneka Gandhi and former minister of state for Home Affairs have opined that marital rape is a western conception and cannot be applied to India owing to factors such as education, literacy, social status, and the fact that marriage is a sacrament rather than a contractual affair2.

This paper aims to analyze the doctrine of coverture, marital rape and proffer suggestions to solve the menace of marital rape in our society which has catastrophic consequences on the physical and mental health of the victims who have no legal recourse at present.

DOCTRINE OF COVETURE

"By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called ... a feme-covert "3

This is the definition of the doctrine of coverture as given by the eminent legal scholar William Blackstone. This doctrine implies that a man and woman bound by holy matrimony are one entity and that the woman has no individual rights. The man could utilize her property to pay off any outstanding debts of his and any income the lady earned in the course of the marriage was said to belong to the man.

Coverture infantilized women, making them dependent on their spouses. The sacrifice of individual identity was considered a fair bargain for the respect and dignity that marriage would afford women.4 Unmarried women and widows were accorded complete ownership of their property, yet choosing to remain unmarried was a choice that very few women exercised.

1 THE PRINT, https://theprint.in/india/india-among-30-odd-countries-that-have-not-criminalised-marital- rape/952250/(Jul.7, 2022, 4:59PM)

2 THE HINDU, https://www.thehindu.com/news/national/anger-over-ministers-marital-rape- comment/article7157945.ece(Jul.7, 2022, 5:11PM.

3 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 442-445( 1765)

4 Hendrik Hartog, Coverture and Dignity: A Comment 41 Law and Social Inquiry 833, 835 (2016) https://www.jstor.org/stable/26630889.

In an economy in which business purchases and sales involved credit, married women’s ability to make purchases on credit in their own name was denied by coverture.5

As women were stripped of their autonomy, they had no legal recourse for any violation of their bodily autonomy such as rape which will be discussed in the next segment of the paper.

MARITAL RAPE

The definition of rape according to Section 375 of the Indian Penal Code is that if a woman is made to perform sexual acts without her consent, is inebriated, is below the age of consent (which is 18 years for both genders), under coercion or has a disability which the perpetrator has taken advantage of.

The exception to the rape law as it stands in the Indian Penal Code is that intercourse of a man with a woman, the wife being over the age of fifteen does not constitute rape presently.6

The exception creates an artificial difference between married and unmarried women, ignoring the fact that rape is a heinous offence, irrespective of the perpetrator. This exception implies that violation of a woman’s bodily integrity in the sphere of marriage is acceptable, ignoring the inevitable trauma that would arise as she would be violated by someone who has constant access to her body and is abusing that trust.

This exception also echoes the idea that a woman has no autonomy in marriage, as illustrated by this infamous quote by Matthew Hale, an English scholar in the 16th century.

“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.”7

5 Joanne Bailey, Favoured or Oppressed, 17(3), CONTINUITY AND CHANGE, 351, 353 (2005).

6 INDIAN KANOON, https://indiankanoon.org/doc/623254/( last visited Jul.6, 2022).

7 Ken Armstrong, Draft Overturning Roe v Wade, PRO PUBLICA (Jul.6, 2022, 5:15PM), https://www.propublica.org/article/abortion-roe-wade-alito-scotus-hale.

The idea of marital rape is an extension of the doctrine of coverture as the woman has no autonomy when it comes to intercourse, an important pillar of marriage.

Consent is essential to intercourse- the expression of sexual autonomy is integral to every individual and there is no greater way of expression than the intimate relationship between a man and a woman.8

On May 11th 2022, the Delhi High Court division bench passed a split verdict on the criminalization of marital rape with Justice Rajiv Shakdher calling for the exception to be removed and Justice Hari Shankar who espoused the contrary view.

Justice Shankar agreed that rape was an assertion of power rather than lust but said that marriage involved a reasonable expectation of intercourse, ignoring the fact that most marriages in India are arranged. This implies that women are married off to strangers and that there are fundamental imbalances in the present patriarchal structure.9 Marriages in India are rarely a question of love, but of honour and societal status.

In 2005-06, the National Family Health Survey found out that of the 80,000 women they had interviewed, 93 per cent said that they had been sexually abused by their current or former husbands. The average Indian woman is 17 times more likely to face sexual violence from her husband than from strangers. 10

The conception of “restitution of conjugal rights” is that the husband could enlist the support of the State to compel the wife to participate in physical relations, despite her consent.

There are multiple stories of marital rape such as that of Namrata( name changed) who was sedated by her husband for many years on end solely for his physical pleasure. Her mother did not support her, stating that she was married and hence could not interfere. 11

8 Pradhuyman Singh, The Marital Rape Exception Case, INDIAN CONSTITUTONAL LAW PHILOSOPHY (Jul.6,2022, 5:45PM) https://indconlawphil.wordpress.com.

9 RP Tripathy, Homage to Patriarchy, THE LEAFLET (Jul.6, 2022, 6:14PM) https://theleaflet.in/justice-c-hari- shankars-defence-of-marital-rape-is-a-homage-to-patriarchy/.

10 Leher Sethi, Marital Rape exposes Society’s Patriarchy, INDIA TODAY (Jul.7,2022, 2:57PM)

https://www.indiatoday.in/news-analysis/story/marital-rape-consent-in-marriage-society-inherent-misogyny- 1900914-2022-01-17.

11 MOJO STORY, https://mojostory.com/ground-reports/marital-rape-survivors/(last visited Jul.7,2022, 4:24PM)

172nd LAW COMMISSION REPORT

The 172nd Law Commission Report had widened the ambit of the offense of rape to mean sexual assault; indicating a gender-neutral stance, on the behest of the representatives of Sakshi, an organization working for the furtherance of women’s rights. It said that penetrative assault would constitute an assault. However it did not consider criminalization of the marital rape exception stating that it would lead to excessive interference in the marital relationship. 12

JUSTICE VERMA COMMITTEE

The Justice Verma Committee, which was constituted in the aftermath of the gruesome Nirbhaya rape case took a progressive stance regarding the criminalization of marital rape. A marital relationship does not automatically imply consent for sexual acts. Therefore, the relationship between the victim and the accuser is irrelevant, when it comes to the constitution of an inquiry regarding the consent of the victim. 13

DECLARATION ON THE ELIMINATION OF VIOLENCE AGAINST WOMEN

The Declaration on the Elimination of Violence Against Women( henceforth called the Declaration) was passed by the United Nations General Assembly in 1993.

The first article states that violence against women includes any act which results in physical, mental and sexual harm to women including acts of coercion.

India is a signatory to this Declaration. Article 4 of the Declaration that states must condemn any practice, irrespective of tradition which harms women. The state must provide a redressal mechanism to the victims who are victims of sexual violence.

Marital rape is a form of violence which presently has legal sanction in India. This contravenes the Declaration directly as marital rape is a practice which is detrimental to women and is couched in the garb of the antiquated idea that the woman must submit to the will of the husband silently, without any protest. 14

12 LAW COMMISSION REPORT. art.3,cl.1.2.

13 PRS INDIA, https://prsindia.org/policy/report-summaries/justice-verma-committee-report- summary(Jul.7,2022,6:11PM)

14 UN OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination- violence-against-women( last visited, Jul.8,2022).

CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN( CEDAW)

India is violation of the UN Convention on the Elimination of Discrimination Against Women( CEDAW henceforth throughout the paper.) as Article 1 includes any form of discrimination based on sex which would be detrimental to women irrespective of their marital status.

The purposeful exclusion of marital rape in the definition contravenes the CEDAW as rape has been justified merely on the basis of the victim’s marital status.

General Recommendations( GR-35) have stated that marital rape infringes on the freedoms and rights of women. India has failed to sign the Optional Protocol to the CEDAW which would entail the setup of a committee to monitor the compliance of the states to the convention. Article 2(f) of the Convention states that India must take all necessary measures to modify or abolish laws that are detrimental to women. The criminalization of marital rape is a first step towards protecting the rights of married women.15

REVIEW OF LITERATURE

The author of this paper had analyzed Section 375 of the Indian Penal Code and used various journals and online sources to refer to Blackstone’s definition of coverture as a doctrine and the Politico website to procure Hale’s idea about marital rape. Blogs such as Indian Constitutional Law Philosophy, The Leaflet, Law and Social Inquiry, Pro Publica, India Today and several newspaper articles to buttress the argument that the marital rape exception is undermining the idea of marriage which is the union of two souls according to the Hindu scriptures and that intercourse in a marriage is based on freely given consent, which may not be possible given the inherent imbalance in the power dynamics of a majority of marriages in India.

The author has also utilized articles on reputed databases such as JSTOR written by eminent scholars to gain a deeper understanding of this complex nuanced topic.

The author has come to the conclusion that India is in contravention of CEDAW and has not followed the Declaration in the spirit it should be followed in.

15 Vaibhavi Patel, Marital Rape in India: An International Violation, BERKELEY JOURNAL OF INTERNATIONAL LAW( Jul.8,2022, 8:24AM)

https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights- law-violation.

The Print website was utilized to find out the number of countries that have not yet criminalized marital rape. An article from The Hindu, a leading newspaper was used to quote a comment made by a minister to highlight the insensitivity towards victims and also the mindset of most citizens of the nation.

Blackstone’s famous quote on coverture was used to introduce the topic. Scholarly articles by Hartog and Bailey provided an understanding of the rights of women who were under this doctrine. A blog article was utilized to highlight the key determinant which is necessary for a sexual act between a couple to constitute marital rape i.e., consent.

The 172nd Law Commission Report was analyzed to understand the position taken by the members whose primary purpose is to advice the government of India on various legal matters. The CEWA and the Declaration proves that India has not followed the spirit of these international conventions and is in direct contravention as it has not yet criminalized the marital rape exception.

SUGGESTIONS

A suggestion would be to criminalize marital rape to safeguard the rights of married women, but reduce the term of punishment. Currently, the punishment for rape is a minimum of seven years which can be extended to ten years or life imprisonment along with a fine. 16

The reason women are hesitant to report cases of rape is that it could lead to the breakdown of the family structure as India is a patriarchal society with the male member of the family serving as the bread-earner. The family could become destitute owing to the loss of income.

The only solution would be to reduce the punishment to roughly 1-3 years, as it would act as a sufficient deterrent and would not affect the economic status of the family to the extent that it would if the male member was incarcerated for a comparatively longer period of time.

Some may argue that there is no chance of reconciliation between the couple if the woman files a complaint, but the question is that if there is no penal sanction, the man may easily get emboldened and may continue to exploit his wife with a great deal of impunity. While certain

sections would prefer a non- legal sanction, the author argues that it is necessary that to uphold

16 Indian Penal Code, 1860, § 376, No. 45, Imperial Legislative Council, 1860 (India).

the dignity of married women, there should be no option for an out of court settlement, although it may be argued that it would lead to a greater number of divorces owing to “mere misunderstandings”. Consent is non-negotiable in a marital relationship.

There is a reluctance to criminalize marital rape owing to the presence of various legislations such as the Dowry Prohibition Act 1961, Prevention of Women from Domestic Violence Act 2005 among other legislations but this does not change the fact that there is no law that specifically deals with marital rape at present.

There is a fear that this criminalization would lead to filing of false cases, by disgruntled women in order to take revenge for any slight – perceived or real. Another suggestion would be to be implement Section 191 of the IPC which deals with false evidence 17 with a certain measure of stringency as there have been multiple cases of false accusations being levelled on innocent men for nefarious purposes.

CONCLUSIONS

The doctrine of coverture is based on the idea that after marriage, the man and the woman merge into the husband’s identity. It has its origins in England and soon spread to other parts of the world. A married woman was entitled to only 1/3rd of the husband’s property, although her personal property could be utilized by the husband for any purpose, he saw fit.

The author concludes that marital rape is a sensitive topic in the Indian societal context. While rape is a heinous, traumatic experience, people are unable to grasp the fact that rape in a marriage is a possibility. The idea of marriages is that consent is automatically assumed and resistance is punished. The lack of a legal recourse implies that women are more often than not, forced to stay in abusive marriages, where the perpetrator has constant access to the victim’s body. The reluctance of the courts to criminalize marital rape, due to the fear that it may lead to a breakdown of the societal structure is specious. According to this line of reasoning, it would imply that there should be no rules for life insurance as the insured party could damage his own property for his own gain from the insurance company. Due to the fear of potential misuse, there is a great possibility that the parties genuinely seeking redressal would not be able to do so.

17 Indian Penal Code, 1860 § 191, No. 45, Imperial Legislative Council, 1860( India).