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In a legal sense, marital rape was oxymoron unless the situation was changed by the women movements in the late 20th century. Earlier, marital rape was legalised around the globe. Now, more than 50 countries have criminalised the marital rape and still, India is one of those 36 countries which have not criminalised the marital rape. (1) In India, non-criminalisation of the marital rape comes from the Exception 2 of Section 375 of the Indian Penal Code, 1860 (hereinafter, IPC, 1860). Exception 2 of Section 375 of the IPC, 1860 (hereinafter, exception 2) 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.” However, the Supreme Court extended the age limit, mentioned in the exception 2, to eighteen years in the case Independent Thought v. Union of India. (2) The Court held the exception 2 to be arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India.
RAPE AND MARITAL RAPE
What is rape? The definition of rape is not universal or which is applicable in all the countries. Some definitions make the ejaculation as a condition for rape where some define rape as any sexual intimacy forced on one person by another. Here, in this article, rape is used in the same sense mentioned in Section 375 of the IPC, 1860.
“Marital rape”, exemption from the crime of rape, the first time, legally documented by Sir Matthew Hale in the History of the pleas of the Crown in 1736. Marital rape is seen or defined as the forceful carnal knowledge by a husband on his wife. Earlier, the crime of rape was the crime against the property because a wife was considered as the chattel of a husband and how a man can commit a crime against his property? This meaning started to change when women rights were getting recognised and well established. Now, the crime is seen as a violation of the rights of woman. Union of India, in Independent Thought v. Union of India, (3) contended against the criminalisation of the marital rape as it can dismantle the institution of marriage in the country. One more view favouring the non-criminalisation of marital rape, although ridiculous, is that wife has consented to the sexual intercourse in the marriage and the same cannot be revoked.
WHAT SHOULD BE THE STATUS OF MARITAL RAPE?
Criminalised or Non-Criminalised. A view can be formed at the end of this article. Firstly, when a human suffers or feels victimised then something is wrong either with that being or with the law but when a particular group of being feel victimised then there is more probability of the law to be wrong or have some shortcomings. But now many questions can be raised on this view like whether laws should be changed according to the gamblers, topers, etc. When these gamblers or topers felt victimised then they approached the court and at that time laws were made or changed according to the demanding situations of the society. Now, the issue of marital rape also has reached that juncture and many writs are being filed in the courts against the exception 2. Development took place in this arena. Age under the exception 2 was increased, the Supreme Court observed that “curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to Constitutional values. More reforms are needed in this particular view.
Secondly, what can be the end of this reformation? or what should be the end of this reformation? Which question needed to be answered? Answer to the first question can be the criminalisation of marital rape as have been done in most western countries or no changes in the current law. Answer to the second question can be difficult but it is more important than the first question. One more question needed to be put on the answer to the first question. What after the criminalisation of marital rape? Will all the problems be solved after this? One answer to this question is a rise in a number of divorces and one more answer is the exploitation of the criminalisation of marital rape by a woman as being done in dowry laws. So, the answer to the second question becomes important here. The problem of marital rape requires a holistic approach. Here in marital rape, punishment is not much important than the peaceful and joyful continuation of the marriage. What can be achieved from the counselling or understanding that cannot be achieved solely from the punishment?
Thirdly, marriage is not any strange relationship. It is a relationship of a family. It should not be broken by just one stroke of criminalisation. Marriage is not just about two people; it is about two families. It is not made to be broken but at the same time, it is also not made for exploitation. The criminalisation of marital rape focuses more on the latter part of the previous statement. There should be a holistic way which focuses on both issues. The way should be that which tries to keep the relation and at the same time stop the exploitation. The criminalisation will not stop the exploitation immediately or even may lead to exploitation of the husband as seen after the criminalisation of dowry. The criminalisation of dowry is not the sole reason to bring down or try to eliminate the dowry. Even it may not be the important reason also, rise in the literacy rate of population, particularly women, women empowerment and equality of opportunities for women are the important driver to bring down that evil practice. Also, women empowerment does not come from the criminalisation of anything which hinders or exploit the women. Women empowerment comes from literacy, self-sufficiency, awareness among the masses.
WHAT SHOULD BE THE WAY THEN?
The way is already there in the system. It just needed to be implemented more efficiently. The Protection of Women from Domestic Violence Act,2005, addresses the problem of marital rape but at the same time, it does not criminalise the marital rape. It provides the opportunity to solve the issues between the marriage parties peacefully and by counselling. It not only saves the marriage but also stops the exploitation of women’s rights. Under this act, to stop such exploitation there is the involvement of two families, counselling, and much more important thing i.e., fear of law. Here the fear factor of law differs from that of the criminalisation. Here one important thing to understand is that husband is not a rapist although he may be an offender. The thing which makes the difference between the rapist and the offender husband is the conjugal rights created by the marriage. Husband also has a fear to keep his marital relations which the rapist is free from. To stop the marital rape, the degree of fear of law is not required that of criminalisation. Here the thing which matter is the continuation of the marriage and which should be tried instead of giving punishment. What if the offender husband does not mend himself? The only solution to this is separation. If the shoe pinches, again and again, it is better to discard it. The point here is the protection of the institution of marriage in which the criminalisation lacks. Above all these, the most important thing which needed is the women empowerment. It is the key which can stop all social issues like marital rape, dowry, gender discrimination, etc. A woman should be as strong as a man. Then how a man can violate or exploit the right of a woman. There was not any such issue which harmed the man. Why? The simple reason is that man always remained self-dependent, educated. The root cause of these problems is not always the muscle power. All these issues need the tonic from the lack of which they are created and that tonic is women empowerment.
(1) Anirudh Pratap Singh, The impunity of marital rape, The Indian Express (Dec. 20, 2020), https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/
(2) (2017) 10 SCC 800
1. S. Murlidharan, Law on marital rape: Why the Domestic Violence Act is a reasonable substitute, Firstpost,(May 3, 2015), https://www.firstpost.com/living/law-marital-rape-domestic-violence-act-reasonable-substitute-2223674.html.
2. JENNIFER A. BENNICE & PATRICIA A. RESICK, MARITAL RAPE: History, Research, and Practice, 4, Trauma, Violence & Abuse, 228, 229.