MARITAL RAPE by Joyita Ghosh

Author : Joyita Ghosh, Student at KIIT School of Law, Bhubaneswar, Odisha.

INTRODUCTION

The concept of Rape is quite familiar to everyone. Rape is a type of sexual assault which includes an unlawful sexual activity or any other wrongful sexual penetration which has been carried out without a person’s will or has been forced upon someone who doesn’t have given consent to as mentioned in a IPC section 375^[1].

There are many types of rapes but the one which is going to be discussed is an oxymoron in most cultures, which takes away the pious sacred tie between the two-person and souls- Marital rape.

The topic is quite controversial and without its proper discussion and considerations, it will turn into a wide and serious problem. We in India, consider Marriage as a sacrament. And it is very conservative regarding sexual intercourse, so when the question arises about Marital rape it is been blatantly ignored. It is considered that it can’t be appropriately practiced in the Indian background for numerous issues like illiteracy, poverty, customs and values and religious beliefs, etc.

WHAT IS MARITAL RAPE?

Marital rape or spousal rape is considered as a type of rape which is of course non-consensual sexual intercourse where the wrongdoer is the spouse of the victim. It ideally can be reflected as most atrocious type of domestic violence as the victim is treated like that by one’s spouse whom they have trusted and loved and the sacrament of the marriage puts her in an inferior position.

This issue with the sexual and domestic violence is gaining international attention from the 20^th century and yet there have been many countries there is no law that has been constructed to struck this down and remains outside the criminal law or being tolerated widely. This is generally being more suffered by women than men although later studies showed that it is gender-neutral- even men can be a victim in this case as well.

HISTORY

Historically, rape was always been perceived as a crime f a man’s property, which meant that property damage is not recognised as destructive to the sufferer but in its place to her predecessor or her spouse’s property[2]. And it was discussed that a husband cannot rape his spouse was coined by Sir Mathew Hale in “History of the Pleas of the Crown” issued in 1736. The inference was that once united by matrimony a husband could anymore be accused of raping one’s wife, any more than being accused of raping oneself[3].

In cultures where the arranged marriage is maintained, not necessary that the marriage between them is fully consensual. So if there is no consent, there shouldn’t be any intercourse. Further down usual decree in Africa, forces intercourse in matrimony was not forbidden apart from certain situations like pregnancy, after childbirth, during menstruation, etc.[4]

MARRIAGE AFTER RAPE

In various culture, the resolution for rape has been to get the unmarried woman married to her perpetrator, this is known as ‘reparatory marriage’. This offer is considered adequate to pardon the criminal from criminal hearing, which is quite common in the Middle East but now it is on a roll to repeal that law[5].

TYPES OF MARITAL RAPE

• Non-physical sexual coercion:

Culprits of conjugal assault will regularly utilize various strategies to cause their casualties to submit to sexual acts, for example, non-actual sexual intimidation and undermined or constrained sex. These sorts happen more regularly than compromised or constrained sex. Around 36% of 244 ladies looking for conjugal treatment had encountered this sort of sexual compulsion though just 5% had encountered undermined or constrained sex [6].

• Threatened or force sex

Consistent force is being applied by the husband to dominate his wife for sex and any physical attack occurs on the part of opposition by the wife. About 4% had experienced forced sex while around 6% was enforced to have intercourse by their spouses.[7]

• Battering rape

The most well-known sort of conjugal assault. 40% of all conjugal assault is delegated battering assault. This sort gets verbal and actual maltreatment.

• Obsessive rape

The most un-regular type of conjugal assault which can happen around just 6% of conjugal assaults. They are portrayed by surprising sexual activities, for example, bondages and erotic entertainment.

Conditions under which ladies are at high danger of being assaulted by their accomplices:

1. Who is wedded to dictatorial men who see them as ‘property’
2. Who are in truly violent connections
3. Who are pregnant
4. Who are ill or recuperating from a medical procedure
5. Who are secluded or separate

REFUSAL TO BELIEVE MALE AS A VICTIM

It has always been perceived that men, even elder ones can not be a victim of rape, nor when they are vulnerable. It’s often thought as disgraceful and weak if a male child even cries since its always been depicted that men are being able to protect themselves, which sometimes may not be the case.

It has been a common notion that men constantly need sex, and that a man must be aroused if he gets an erection or has an orgasm therefore always willing and enjoying any sexual activity. An erection not always mean consent to sex, it can also be due to trauma a man can get an erection or painful sexual situations and this doesn’t indicate consent. Much like female’s erectile response, males are also involuntary.

CONSEQUENCES[8]

The consideration that marital rape is less severe than other forms of sexual violence is a complete myth. Many physical and emotional consequences may accompany marital rape:

1. Physical impacts incorporate vaginal and anal regions, wounds, irritation, wounding, torn muscles, exhaustion and heaving.
2. A lady who is battered and assaulted often have the ill effects of broken bones, bruised eyes, broken noses and blade wounds.
3. Gynaecological impacts incorporate vaginal extending, pelvic irritation, undesirable pregnancies, premature deliveries, miscarriages, bladder infections, explicitly communicated sicknesses, HIV.
4. Short-term mental impacts like PTSD, uneasiness, stun, extraordinary dread, sorrow and self-destructive ideation.
5. Long-term mental impacts including resting jumble, dietary problems, discouragement, closeness, negative mental self-views and sexual brokenness.
6. Psychological damage: Marital rape is a grave social concern which is been experienced by 10% to 14% of all married women and 40% to 50% of battered women. Like females, males also experience psychological disorder. Normally male rape victims choose not to disclose due to societal pressure which doesn’t believe in them.

LEGAL RESPONSE TO MARITAL RAPE

Rape has been defined in section 375 of IPC which comprises all forms of sexual assault also involving non-consensual intercourse with women.[9] India is one of the 36 countries who still haven’t criminalized marital rape, while almost every country of the world has already made it a criminal offence[10]. In a recent landmark case, the SC forbade unenthusiastic sexual interaction with a wife between 15 and 18 years of age.[11] In India, matrimonial laws are well-defined and covers by and large, abuses including sexual nature in many matrimonial laws and even by criminal law, though it does not recognize marital are specifically.

Why is marital rape legal in India? Why is nobody doing anything about it?

1. It’s difficult to implement the law. It is difficult to prove that it was rape or a false accusation when it happens in the privacy of someone’s bedroom. Sometimes one partner uses this as a false accusation during a fight or a divorce.
2. Marriage is considered to be a “sacred” bond in India and our culture shames divorces. Since there is a lot of importance given to family values and bonding. According to the Supreme Court, criminalising marital rape would “destabilise the institution of marriage”.
3. Most of the women themselves in India don’t want to walk out of marriages. Either they are not financially independent or because of social stigma around divorce. They were just taught to put up with the abuse and to keep their husbands happy no matter what. (Female-on-male rape is not even talked about.)
4. Marital Rapes are not often reported in Rural areas (Its wrong, they should be reported). But they are not. For various reasons, the primary reason being family pressure. And Taking everything into account laws like this regularly will in general be abused than been genuinely utilized by specific pieces of our general public. There is definitely no chance a man can battle conjugal assault charges.

Violation of article 14

at the point when the constitution guarantees in article 14 Equality to each individual or equivalent security of law inside the domain of India, Indian criminal law oppresses the female sufferers who have been assaulted by their spouses. At the point when IPC was drafted in 1860, females were not viewed as a free substance and thus, she didn’t have any of the rights currently ensured to them. Exemption 2 of S.375 of IPC abuses the privilege to balance referenced in a.14 as it victimizes the wedded lady by denying them equivalent assurance from assault and sexual harassment. In doing all things considered, the Exception makes possible the abuse of married women for no good reason other than their intimate status while protecting unmarried women from those identical exhibitions.

Violation of article 21

Exception 2 similarly disturbs Article 21’s entitlement to living a sound and dignified life. As it is discussed that the privilege to life is not simply am option to exist, the courts have regularly held that the “right to life” includes an option to live with human pride. Yet the very presence of Exception 2, which was unsuccessful to avert partners from participating in performances of enforced sexual contact with their spouses, harmfully marks the physical and emotional well-being of women and sabotages their capability to live with self-respect. Article 21’s entitlement to carry on with a sound and honourable life.

Should marital rape be criminalised in India?

For the topic

Forced sex without the consent of the other partner constitutes a rape. A marriage does not blur that definition. Rape remains a rape even if a husband or wife is subjected to intercourse without their consent by the other partner. Sex has consistently been a compulsory custom in a marriage and furthermore a no-no. The awareness remains in dismal because of the ideology attached to the forbidden-to-talk-about nature of sex. The injuries of a forced sexual act by one’s spouse on a woman are not only physical but psychological. The mental frustration of not being protected from a heinous crime like this committed by the person she was handed over to for life is grave. To criminalise the offence here are some recommendations:

1. Marital rape should be recognised by the Parliament as an crime under IPC.
2. The penalty should be the equivalent to the one given under Section 376 of the IPC.
3. The matter shouldn’t be taken lighter if the parties are married.
4. The wife should have the right to get a verdict for separation if the burden of marital rape against her husband is verified.
5. UN had recommended India to criminalize Marital Rape.

Against the topic

Misuse of IPC 498A: according to some protesters, as huge as 85% of dowry cases turn out to be false and India cannot deal with another failed catastrophic law that will amount to “legal terrorism”. Many men’s rights activists are especially wary of criminalizing marital rape, as they feel that it will be misused even more than the anti-dowry law. In conservative societies, marriage itself is considered as that consent between a man and a woman. So the burden of proof is going to be huge and legally complex.

Religious Obstacles: if marital rape is criminalized, it could interfere with the civil laws of many communities e.g. many orthodox Christian or Muslim communities don’t believe in the concept of marital rape. A conflict between civil and criminal laws could give rise to constitutional challenges.

Gender Neutrality: arguments to make the definition of ‘rape’ gender-neutral has been put forward on many occasions, and the same argument is put forward in case of marital rapes too. Even if the exception of IPC section 375 is removed or criminal provisions are added to the Domestic Violence act, husbands will not be able to use those, many argue. If there is a law, there will be loopholes and people will use them ruthlessly. That does not stop us from making laws against other heinous crimes.

1. The initial move towards punishing conjugal assault is to acknowledge that it happens We feel that it is a lady to blame on the off chance that she declines the spouse that She should comply with her significant other.
2. Marriage is an organization that conceals a great deal of grotesqueness of our man centric culture – constrained premature births, blackmail, torment (mental and physical). Masterminded Marriage is a bargain. A trade of guarantees. Sex is one of them. Conjugal right to sex is a prized conviction.
3. Marriage is an answer for assault in numerous pieces of India. It resembles you stroll into a store and harm any item, you need to get it/follow through on its cost. An assaulted lady is harmed merchandise. Wed her and free the group of a subject resource, you are recovered of your wrongdoing. Quite a general public is unequipped for understanding conjugal assault.

CONCLUSION

It is recognized that by getting to change the law identifying with sexual offenses is a difficult and delicate undertaking and all the more so, in a nation like India, where there is a mixture of many separated frameworks of individual and strict laws that may come in clash with any new revisions identifying with the issue. But, the need to acknowledging the nature of marital rape and attending to the importance of criminalising it is significant. Further, simple announcement of behaviour as an offence is not sufficient; preparing the law lords and police is similarly vital. There is also a need to educate the masses, especially the poor and the illiterate, as the real goal of criminalising the offence will simply be accomplished when the public recognizes and dares the prevalent legend that marital rape is.

In the 2013 Criminal Law (Amendment) Ordinance[12], assault and lewd behavior guilt’s were unbiased and solid protests were raised by women’s activist gatherings that made the Indian government chose to re-establish the expression “assault” and express that no one but men can be attackers of ladies.

The only possibility that can arise to defend a man in this condition of plight is by removing the coloured spectacles of view that only men can rape, the general notion of rape from use of manhood is outdated even as per the penal code definition, now a broader picture for the definition should surface that the concept of rape is not gendered biased but is a stigma of use of power, authority and dominance, which might emanate from the law or by social pressure. Rape is rape, regardless of who perpetrator is and age of the survivor.

REFERENCES

[1] WHAT IS SECTION 375, Business Standard India, https://www.business-standard.com/about/what-is-section-375 (last visited Dec 4, 2020).

[2] Jonathan Herring. Family Law: A Very Short Introduction. ISBN 9780199668526. p. 35.

[3] Anderson, Michelle J. “Marital Rape Laws Globally.” Marital Rape: Consent, Marriage and Social Change in Global Context. Ed. Kersti Yllö, M.G. Torres. London: Oxford University Press, 2016.

[4] Ngeyi Ruth Kamyongolo & Bernadette Malunga, THE TREATMENT OF CONSENT IN SEXUAL ASSAULT LAW IN MALAWI 23.

[5] ibid

[6] Rape in Marriage and in Dating Relationships: How Bad Is It for Mental Health?a – KILPATRICK – 1988 – Annals of the New York Academy of Sciences – Wiley Online Library, , https://nyaspubs.onlinelibrary.wiley.com/doi/abs/10.1111/j.1749-6632.1988.tb50875.x?sid=nlm%3Apubmed (last visited Dec 5, 2020).

[7] Prevalence of Wife Rape and Other Intimate Partner Sexual Coercion in a Nationally Representative Sample of Women | Springer Publishing, , https://connect.springerpub.com/content/sgrvv/17/5/511 (last visited Dec 5, 2020).

[8] Marital Rape: New Research and Directions, , VAWnet.org , https://vawnet.org/material/marital-rape-new-research-and-directions (last visited Dec 5, 2020).

[9] WHAT IS SECTION 375, supra note 1.

[10] India Today Web Desk New DelhiMarch 12, 2016UPDATED: March 12 & 2016 16:06 Ist, Marital rape in India: 36 countries where marital rape is not a crime, India Today , https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12 (last visited Dec 6, 2020).

[11] Supreme Court Observer -, , https://www.scobserver.in/court-case/exception-to-rape-within-child-marriages (last visited Dec 6, 2020).

[12] CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, 16.