Marital Rape: A Socio-Legal Perspective!

The issue of marital rape has been extensively debated in India but there has been no concrete decision on this issue. To understand marital rape it is important to define marriage. The law defines marriage as a Civil Contractual Relationship which is the union of two opposite sex. The definition of marriage does not include only legal or traditional interpretation, it has a major dominance of what time thinks of the subject. Cultural interpretation hence is necessary to understand the meaning of marriage. What has to be thus answered is whether the Indian Legal system defines marriage to be a consensual knot for sexual intercourse? No, Delhi high court has cleared this very ideology, that marriage is not consent, it is just a social contract. 

Before arguing from either side, it is crucial to define marital rape. In the simplest terminology, it is the act of forced sexual intercourse by one spouse with the other. The generic idea of the concept is when husbands force their wives to have sexual intercourse with them.

The patriarchal society of India did not accept this brutal act of destroying a woman’s dignity and ripping her soul, to be an offence until 2005, when the domestic violence act was enforced and marital rape was recognized as an act of domestic violence. 

Referring to Article 21[1] of the Constitution in the case of Bodhisattva Gautama vs. Subhra Chakraborty[2], the Supreme Court held that every individual has the right to live with human dignity and hence husband dragging her wife into a forced carnal activity is unlawful. In cases like Kharak Singh vs. the State of U.P.[3], Govind v. State of Madhya Pradesh[4] and Neera Mathur vs. Life Insurance Corporation[5], the Supreme Court has now and then stated that the absurdity of exclusion of marital rape from the offence of rape is against human dignity and women have the Right of Sexual Privacy and Right of Protection of Sexual Security. 

Acting Chief Justice Gita Mittal in 2018 also said that Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations) and the burden of proof should lie on the accused[6].

Then why is it that marital rape is still on the plane of discussion rather than under S. 375 of IPC?

Justice Verma Committee, formed after the Delhi gang-rape incident, recommended the removal of the exception of marital rape from S. 375 of IPC. The committee presented that one in every ten women faces sexual violence by their husbands during their lifetime[7]. According to CNN reports, the number of women sexually assaulted by their husbands is 40 times the number of women attacked by unknown men. 

Marital rape is not just a form of domestic violence is a classic example of an exempted criminal act. Yet our judiciary and legislature have been avoiding this very sensitive issue which is not just important for the present victims but also for the society which beliefs in the institution of marriage to an extent that they have socially accepted the offence of marital rape to be a form of rightful patriarchal dominance. It is the orthodoxies who believe that the act of marital rape cannot be criminalized due to the sacrament of the institution of marriage in every religion.

Another major drawback that India faces when it comes to Marital Rape is the recognition of the crime by the victims themselves. With illiteracy, patriarchal dominance and the continuation of rigorous conventions and traditions, women have accepted/bound to accept the crime as a duty in marriage like the duty to cook food, to wash his clothes, similarly, it is the duty of the woman to "keep the man happy", by consenting to his needs. But slowly with the change in times, women are realizing the act of marital rape as a crime they were a victim of. With this realization, it is also important to understand the difficulties that the Indian judiciary will face after they conclude marital rape to be a part of S.375 of IPC.

The defence believes that penalizing marital sex would not only include hardships of false cases and destabilization of the society but also it would be difficult to construct that whether the will was present or not. Since marriage has always been a private contract, it has never been interpreted and interfered with by the law, shielding it from supervision. And therefore law becomes abrupt dealing with the evidence for consent.

Article 14[8] enforces the principle of equality amongst equals. But when it comes to rape victims, a married woman cannot be raped and the only recognized offence is domestic violence. The only difference between rape and marital rape is the certificate of marriage. We now need to scrutinize whether the marriage certificate can be a basis to define a different category of equals which include married victims and unmarried victims separately, thereby charging domestic violence on husbands and rape on strangers. 

The most significant question that now stands is, Whether the certificate of marriage is the license to rape?

By,

LawVastutah

References

[1] Art. 21, Constitution of India 1950

[2] AIR 1996 SC 922

[3] 1963 AIR 1295

[4] 1975 AIR 1378

[5] 1992 AIR 392

[6] "Marriage doesn't mean wife always ready for sex: Delhi High Court on marital rape", available on

https://www.hindustantimes.com/india-news/marriage-doesn-t-mean-wife-always-ready-for-sex-delhi-hc-on-marital-rape/story-1bQh4TUumz8rdym2KUKcVO.html, last seen on 20 June 2020.

[7]" Justice Verma Committee Report Summary", available at 

https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary  last seen on 20 June 2020.

[8] Art. 14, Constitution of India 1950