Marriage is the basis of human society. There is no other close relationship than marriage where psychological, social, ethical and biological requirements of a person are met. It is a fusion of two hearts & souls and union of two families. It is projected by the society that marriage is essential for a person to regulate his/her sexual life. It has a direct relationship with the institution of the family. Marriage is often termed as a license for sexual life. It is affirmed by the society that at the time of marriage, the wife gives her consent to the husband for sexual intercourse with her. This affirmation has raised many issues and Marital Rape is the most prominent.
In India, Rape is defined in Sec. 375 of Indian Penal Code, 1860 as an act of sexual intercourse done against any woman without her consent. Marital Rape, also known as spousal rape, is the non-consensual sexual intercourse by a husband with his wife. Surprisingly, Section 375(2) exempts husband from getting convicted of committing rape of his wife unless she is below 18 years of age or is judicially separated. This exemption is also known as the spousal exemption. Marital rape is divided into three types: Battering rape wherein certain degree of sexual and physical force is involved in intercourse; Force rape wherein force is used to control the victim and Obsessive rape which includes perverse pornography and sexual acts.
It was held in the case of Bodhisattwa Gautam v. Shubra Chakraborty that rape violates a woman’s right to live a life of dignity. In State of Maharashtra v. Madhukar Narayan, the Supreme Court of India held that every woman is entitled to the right of sexual privacy. Marital rape breaches the dignity of a woman. The trust which is built at the time of marriage also gets broken. It eventually forces the wife to live her rest of the life in anxiety and depression. It is unfortunate to state the fact that the reporting of such cases is also really low as there is no sound legislation that can help the wife to get justice. Other reasons for the low reporting of the cases of Marital Rape includes the victim’s inability to leave the relationship, allegiance towards the family and concern towards securing bright future for the victim’s children.
ARGUMENTS FOR CRIMINALIZATION
1. Physical effects
Certain grave physical effects caused by marital rape may last for a long period. Injuries to reproductive organs, vomiting, lacerations, etc. are some of the physical consequences of marital rape. Jacquelyn C. Campbell & Peggy Afford conducted a survey in the shelters of Michigan with the objective of knowing the physical consequences of the Marital Rape. They reported the findings of the survey in their research paper ‘The Dark Consequences of Marital Rape’ wherein they reported that 82.7% of the total numbers of wives were forced to have vaginal sexual intercourse. Also, 44.1% of total wives were kicked, hit or burned during intercourse. Certain objects were inserted in the reproductive organs of 28.6% of the total number of wives. All this left a great negative impact on the physical health of women.
2. Psychological effects
Marital rape has a deep impact on the emotional health of the wife. Some of these effects include nervous breakdown, suicidal ideation, sleeping problems, etc. It is significant to state that suicidal ideation and nervous breakdown rate is higher in marital rape than stranger rape. The most important reason behind this is that the wife, even after getting raped, has to live her whole life with that man only.
3. Violation of Article 21
The most important ground for advocating the criminalization of marital rape is that it violates Article 21 of the Indian Constitution which guarantees the fundamental right to life and personal liberty to every citizen of our country. It is important to note that the Supreme Court, through various judicial precedents, has increased the ambit of Article 21 of the Indian constitution. In Maneka Gandhi v. Union of India, the Supreme Court held that right to live a life of dignity is an integral part of right to life and personal liberty. In NALSA v. Union of India, right to bodily self-determination and in C.E.S.C. Ltd. vs Subhash Chandra Bose And Ors, right to good health were included within the sphere of Article 21 of the Indian Constitution. Marital rape exemption blatantly violates the above-mentioned rights. This makes it necessary to criminalize the marital rape to eventually help the wife to protect her fundamental right to life and personal liberty.
4. Violation of Article 14
Article 14 of the Indian Constitution guarantees equality before law or equal protection of laws to every citizen of our country. Spousal exemption is present because of the presumption that the wife gives her consent at the time of marriage and therefore, can't allege her husband of committing rape with her. Exempting husband from getting charged with the rape overtly violates the rights guaranteed to her under Article 14. Also, exempting husband from getting charged with rape just because he is ‘husband’ does not make the crime of rape less heinousness. It is important to note that the primary identity of both remains as man and woman (no reasonable classification or intelligible differentia as it differs from object of penalising rape).
GOVERNMENT’S STAND ON CRIMINALIZATION OF MARITAL RAPE
At this juncture, it becomes quite significant to know the Government's position on the ongoing debate of whether marital rape should be criminalized or not. In RIT Foundation v. Union of India, the Government drew a bizarre relationship between criminalizing Marital rape and saving the sacred institution of marriage. The government gave the following two contentions in favor of non-criminalization of marital rape:
i. Marriage, since ages, has been considered as a sacred institution and everything which is concerned with it should also be considered as sacred. Government is of the viewpoint that criminalizing marital rape would demean the sacrament value attached to marriage and holistically destroy the institution of marriage.
ii. The second ground on which the Government has advocated the non-criminalization of marital rape is that if Marital Rape is criminalized, it would lead to filing of large number of fake cases.
It is really necessary to contest the arguments of the Government. Firstly, prohibition and criminalization of any wrong and unreasonable practice cannot be denied on the grounds of sacred values attached to it. There have been various instances in history where certain sacred practices, that were unreasonable enough, have been completely prohibited and penalized. Examples being Sati practice, Dowry, Child Marriage, etc.
Secondly, it is quite irrational to resist the implementation of any legislation which can help to curb down any social menace just on the fear of filing of large number of fake cases. Every legislation has certain loopholes which could be used by certain people unjustly for their benefits. But this shouldn’t be the ground of undermining the value and significance of the legislation. If it is necessary to bring that law, then it should be brought.
Legislature and Judiciary are the two most important organs of any country and both have the power to curb down any wrong happening in the society. Marital rape not only displays the patriarchal nature of our society but also irresponsibility and redundancy of the legislature and criminal justice system. Marital rape shouldn't be justified on the grounds of the sacred value attached to the institution of marriage. It has become one of the most prevalent forms of atrocity against wives.
The society also needs to change its perception of sexual intercourse after marriage. The perception of wife giving her consent at the time of marriage and marriage as a license to have sexual intercourse should be eradicated. Proper rights should be given to the wife by which she can challenge the non-consensual sexual intercourse before any court of law. Lastly, I would like to end this article with the words of Justice Pardiwala of Gujarat High Court:
“Marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.”