By
Gowri Shankar, III year of B.A.,LL.B.(Hons.) from Presidency University, Bangalore
ABSTRACT
We live in a society where men and women are considered to have equal rights but in practicality men dominate women yet it’s considered to be fair. One such category is marital rape. Marital is the abrupt act of an intimate partner to have sexual intercourse with his wife bonded by the institution called marriage. Many married men force their wives to have sexual intercourse without their consent. Society needs to understand that the institution of marriage doesn’t grant the right to a husband to have sexual intercourse with his wife without her consent. In India, the concept of marital rape is not to be a criminal act. Although the physical act of violence and verbal abuse by the intimate partner is punishable under the Domestic violence Act, marital rape is yet to be criminalized. This paves the way for an intimate partner to have sexual intercourse with his wife. Indian needs to criminalize marital rape so that the consent of women in sexual intercourse is upheld. Criminalizing marital rape would stop the unfair use of masculine power over another gender and also it would uplift the equality between men and women.
Keywords: Marital – Rape – Consent – Intimate – Criminalize
MARITAL RAPE: RAMPANT CRIME IN INDIA
Marital rape is not new a new concept to the Indian society. Marital rape is a sexual assault by an intimate partner with the other partner without one’s consent. In India, marriage is perceived as a sacred practice. It is believed that marriage grants the husband the right to have sexual intercourse with his wife at any time without her consent.The concept of marital rape developed during the late 1950s, when people all around the world stood up against this unfair practice. It is a widespread form of gender inequality within marriage where one partner takes advantage of the other in sexual concerns.
It is necessary to consider that in marital rape, physical violence is not necessary, mere sexual assault with an intimate partner without consent amounts to marital rape. Women are most vulnerable to these marital rapes as no could know what’s happening behind closed doors. Indian laws grant the rights to have perpetual consent for sex with an intimate partner after marriage[1]. India needs to understand the cruelty of these acts. India is one among few countries which have not yet recognized marital rape as an act of crime[2].
It has been a debate over years for not recognizing marital rape as a crime. Indian constitution is a transformative constitution[3]. It seeks to reconstruct over years with the change in society. Back in 1950’s marital rape wasn’t considered as a problem of equality. In this era, society has gone through a lot of changes and developments for individual rights. The constitution visions to provide equality to all people of the state without any discrimination in gender, colour, creed, caste. Marital Rape is a gender-biased act which most often infringes on the women’s consent and forces them to have sexual intercourse. This violates Article 14 of the constitution of India. Marital rapes infringe on the fundamental rights guaranteed by the constitution. A section from Personal Laws of Hindus forces a woman to have sex with her husband without her consent.
According to section 9 of the Hindu Marriage Act, 1955, where it speaks about restitution of conjugal rights. The court commands the cohabitation of married people if any one of the partners withdraws from the society of the other without reasonable excuse. Section 9 of the Hindu Marriage Act,1955 was challenged in Andhra Pradesh high court in T.Sareetha v T. Venkata subbaiah[4]. The court held the provision unconstitutional on the ground that the section deprives the autonomy of the women from her own body. However, in 1984, the supreme court of India held that section 9 of the Hindu marriage act does not violate Article 21 of the constitution of India. The judgment stated that the right to privacy did not guarantee the autonomy of an individual over her own body[5]. In the case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors., the court ruled that citizens have the right to privacy and grants complete autonomy over the body. This recent judgment questions the constitutionality of Section 9 of the Hindu Marriage Act,1955 where a married partner is forced under law to cohabit with the other partner without consent. This section violates the right to privacy under Article 21 of the constitution of India.[6]
Marital rape violates fundamental rights guaranteed to the citizens of India by the constitution. Previously, in the case of Harvinder Kaur v Harmander Singh Choudhary[7], the learned judge opined that section 9 of the Hindu Marriage Act, 1955 is focused on the consortium and not on cohabitation. The court held that the ultimate goal of marriage is not just sexual relations and Section 9 of the Hindu Marriage Act,1955 states the parties to live in the same household and does not force them to have sexual intercourse. Hence, in deciding the validity of this section courts must consider various possibilities. The Supreme Court is flooded with writ petitions challenging the validity of section 9 of HMA,1955. However, many married women are undergoing mental and physical stress in the household due to sex without consent.
Even if they try to stay away from their husband, their husband can file for restitution of conjugal rights and get together with his wife. The wife cannot refuse without a valid reason. Many women in India are conservative and terrified of social scenarios, especially in rural areas. Hence, they do not wish to solve family problems in public. Statistics states that nine out of a hundred men believe that husband has the right to use force if she doesn’t want to have sex.[8] Women undergoing marital rape in rural areas are unaware of the legal solution to their problem. Although marital rape is not recognized as a crime, civil and criminal remedy is available to them. Under the Domestic violence Act, 2005, the wife can apply for a restraining order and get protection. Under section 498A of IPC, the husband can be imprisoned up to 3 years. Section 375 of IPC protects women below the age of fifteen from rape. Exception 2 to section 375 allowed sexual intercourse with a wife between the age of fifteen to eighteen. This was against child rights. Hence, there was a need for an amendment to increase the age restriction from fifteen to eighteen years of age due to India being a signatory to the UN convention on the rights of the child.
In the case of Independent thought v Union of India, the court ruled that sexual intercourse with a girl below 18 years of age is rape irrespective of whether she is married or not. This increased the age restriction from fifteen to eighteen years of age. This protects minor children from rapes. However, married women above the age of eighteen years undergo marital rapes and the law doesn’t protect. This shows the reluctance of courts and legislature in extending marital rapes to adults. The problem in marital rape which forces women to have sexual intercourse with the husband lies in consent. Consent according to the explanation of section 375 of Indian penal code is“an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”[9].
The difficulty arises in proving the lack of consent within closed doors. The husband of the victim could even lie under oath as there is no evidence to support a lack of consent.Hence, it becomes impossible for married women to entertain their consent in sexual relations. India needs to criminalize marital rape and stand up for the individual rights of married women. we need to understand that marriage does not mean that wife is always ready for sexual relations, says the high court of Delhi[10]. The judgment of Delhi High Court is a big step in considering the cruelty of marital rapes. I conclude by saying that the law has made progress but it needs to outgrow in such a way that it protects women from her husband having sex without her consent. Society needs to understand that Marriage does not grant the autonomy of a woman's body to her husband. Consent is a substantial factor within the institution of marriage irrespective of gender. Marital rapes should be criminalized so that sexual intercourse within marriage requires the consent of both the parties and the rights of married women in sexual intercourse is sustained.
[1]SarthakMakkar, Marital rape: A non-criminalized crime in India, Harvard human rights journal, (Jan. 01, 2019), https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
[2]Vageshwarideshwal, Can a man rape his wife, Times of India, (Jan.16,2019, 1.00 PM), https://timesofindia.indiatimes.com/blogs/legally-speaking/can-a-man-rape-his-wife/
[3] Gautam Bhatia, The Constitution of India was not just a founding document. It had a radically transformative vision, scroll, (Mar.04,2019, 8.30 AM), https://scroll.in/article/914555/the-constitution-of-india-was-not-just-a-founding-document-it-had-a-radically-transformative-
[4] T. Sareetha v T. Venkata subbaiah, AIR 356 (Andhra Pradesh High Court: 1983)
[5] Smt.Saroj Rani vs Sudarshan Kumar Chadha, AIR 1562 (Indian Supreme court:1982)
[6] Raghav Pandey and Neelabh Bist, Compelling wife to 'cohabit' with husband violates fundamental rights; it's time SC reviewed Section 9 of Hindu Marriage Act, first post, (Mar.06, 2019, 07.48 IST), https://www.firstpost.com/india/compelling-wife-to-cohabit-with-husband-violates-fundamental-rights-time-sc-reviewed-section-9-of-hindu-marriage-act-6200151.html
[7] Harvinder Kaur v Harmander Singh Choudhary, AIR 66 (Delhi High Court: 1984)
[8] Kumar Rajesh, Data on Sexual violence show why India should progress towards criminalizing towards marital rape, huffington post, (Feb.24,2018,11.15 AM), https://www.huffingtonpost.in/kumar-rajesh/latest-data-on-sexual-violence-in-marriages-shows-why-india-should-progress-towards-criminalising-marital-rape_a_23367102/
[9] Indian Penal Code 1860 § 375
[10] Press Trust of India, Delhi HC on Marital Rape: Marriage doesn’t mean wife is always ready for physical relations with her husband, financial express, (Jul.18,2018,11.53 AM), https://www.financialexpress.com/india-news/delhi-hc-on-marital-rape-marriage-doesnt-mean-wife-always-ready-for-physical-relations-with-her-husband/1248987/