The sacrosanct paradigm of marriage is very complex. It involves surmounting intricate hustling and courtship games. The traditional rituals, the exorbitant ceremonies that celebrate the act of marriage consequentially leads to the convoluted requirements of the domestic life of that of a husband or a wife. A married couple shares a very knotty relationship. The continuous and deliberate act of pleasing one another and their in-laws becomes weary and exhausting. However, the long- stretched actions coupled with stressful thoughts, calls out for moral support from the significant other, which later leads to good comradery, love and intimacy.
A man is considered, the powerful being between the two genders. Though considerate steps have been taken in the past by reformers and law-framers, like share in ancestral properties, widow remarriage, the abolishment of women-depreciating traditions, not much has been said about the act of forced intimacies in matrimony. When it comes to intimacy in the institution of marriage, the topic is dealt with utmost privacy and secrecy for obvious reasons and hence the partner’s do not resort to cater any shortcomings whether physical or mental.
Consent is one of the chief ingredients which needs to be fulfilled to carry out an act of intimacy or sexual intercourse, per se, but it holds no substance and is insignificant when it falls under the purview of marriage. There is absolutely no recognition of this ‘offence’ on a global level and therefore no laws restricting it. A husband’s violent sexual possession of his wife against her will is such a point of power. The shrugged shoulders of judiciary and governments show the lack of cognizance regarding this subject and further transform this power into truth. Therefore, when a man says ‘husband cannot rape his wife’, he is reiterating the same words, which the society and the governments have fed him over the years.
The act of exemption of a husband from the accusations of marital rape was suggested in Sir Matthew’s Hale declaration that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”1
Hale has been the face as the accepted authority on marital rape in the United States of America. However, this theory of ‘implied consent’ is a caricature of its own and invites a lot of conjecture, and is a commonly invoked justification. Furthermore, Blackstone articulated the ‘Unities Theory’ in his commentaries, which contended that ‘By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated [into her husband].2 The unities theory did posit the consolidation and union of two souls into one after marriage but suspended the individual entity of the women. The theory, thus served the purpose to legitimize the ownership of women through marriage. Women were subject to their husband’s chattel, deprived of all individualistic identity.
However, in the latter part of the colonial period around the nineteenth century, women struggles and their revolutions for their respective rights and liberties did pick up some pace and garnered a lot of appreciation and applauds from across the world. With the passage of Property rights, widow remarriage, the quest for higher educations and reserved jobs, women did create their own space in the ever-existent patriarchal society. Yet, these reforms and changes, although did put the women in the spotlight on economic and legal spheres, the essence of equality in all aspects was still blurry and hazy.
To nullify the growing demands of women regarding their freedom of expression in all forms, a new ideology took birth namely as “separate spheres”. This ideology categorically defied the unities theory and justified sexual inequality. The ideology lied on the plane, which inflicted that while men dominate the business of politics and workplace, women are responsible to cater to the private realm of the family.3 Therefore, women were no longer inferior, but naturally different. The separate spheres ideology articulated the general idea that a woman was to remain completely absent from the public realm and any kind of legal intrusion in the domestic palatinate was in contravention of the theory. As a result, private subordination of women was accomplished by the absence of laws restraining manpower, and while the power of man remains unchecked and imbalanced, women were subject to mass oppression and abuse. Specifically, men were free to rape their wives.
Marital Rape in India
‘A body is a temple’. Though this saying revolves around the subject of a physically healthy being, the usage of the word ‘temple’ depicts holiness and purity of a human body. A woman, especially in a country like India, is treated like a deity, a goddess. And to rape a woman is not just a mere legal crime but a much greater and bigger moral sin. Rape, in a nutshell, is an offence against a woman, violating her chastity, dignity, self-respect and what not. And when it occurs within the four walls of a matrimonial home, it reduces the women to a mere object of sexual gratification.
Rape within a marriage is something, which disturbs and distresses the wife to the very core. The continuous anxiety to encounter the doer, serve him food and regard him as a husband, and silently suffer is an unbearable thought that has a very detrimental effect on the psyche of a woman. No woman wants to suffer or go through such a life-endangering encounter and live with the concealed silence. However, the lack of laws and abundant social stigmas against the act of marital rape leaves the women helpless and eventually forces her to put up a smile as if nothing happened.
The law legislators, on one hand, with all the pomp and show, beat the drums of empowering and uplifting woman. They have given rights to the women to fight for protection when the violators are outside entities. On the other hand, the legislators turn a blind eye, when the perpetrator is her husband and therefore protection against such heinous crimes like marital rape, is withdrawn.
When one mentions the word rape, the general notion, which is conceived, is the thought of a stranger or a malicious person. The idea of rape in the context of marriage still alarms some people including women. It is difficult for them to believe that a husband can rape his wife. According to patriarchal society, like India, marital rape is regarded as normal and a mere act of love. After all, how can a husband be accused of rape if he is availing his conjugal rights? The society considers this as a typical act of machoism and masculinity-show and therefore reduces the wives as chattels of their husbands, an object for sexual appeasement and nothing more. This shameful, grave and heinous act is well hidden behind the iron curtains of a so-called ‘happy marriage’.
While the legal definition given under Section 375 of the Indian Penal Code varies, marital rape can be defined as ‘any unwanted intercourse or penetration (vaginal, anal or oral) obtained by force, the threat of force or when the wife is unable to consent.’ However, despite having such a polluted history about women inequalities and oppression, especially the prevalence of marital rape, the menace has received relatively limited attention from reformers, activists, practitioners, justice machinery and society as a whole.
Marital Rape in India – Legal Perspective
Incredible India, as one refers to this country of colours, the regular disappointing portrayal of women safety paints a grey picture. While we have advanced in every possible field, acts like marital rape is still not considered a legal offence. India is one of the thirty-six countries that still have not criminalized marital rape. Despite hot debates and discussions in the parliament, amendments, law commissions and new legislations for uplifting the spirits of women, a quite female-centric subject are still left untouched and unnoticed. A mere look at the options, a woman has to protect herself against rape in marriage, tells a lot about the mindset of legislators and lawmakers. The laws are either inadequate, immaterial or even non-existent.
According to the Indian Penal Code, Section 3754 discusses the rape in a very classified detail but negates the possibility of considering marital rape as a crime. The archaic and rusty definition, robustly mentions that a sexual act committed by a man with his wife, who Is not under 15 years of age would not be considered as rape.
Section 376 lays down the punishment of the offences discussed in the preceding section that is Section 375. It states that the rapist would face rigorous punishment for at least 7 years, which can further extend to imprisonment for life, along with the liability to pay the fine. Section 376A, however, in a very narrow purview states that rape within marital bonds stands only if the wife is below the age of 15 years.
Now, who is to be held accountable for the sexual atrocities faced by women once they cross the age of 15 years? Since there is no legal protection accorded to the wife against the sexual assault or marital rape for that matter, how can a nation uphold the integrity and chastity of women? How can the same law which establishes the validating consent of a female for marriage be 18 years, but for protection against spousal atrocities, namely sexual abuse, be only limited to those up to 15 years of age? And most importantly, is marriage a licence to rape?
The government did try to answer the subsequent questions when the Indian Penal Code was amended in 1863, which criminalized spousal rape during the judicial separation period.5 Moreover, in 2005, the passage of Protection of Women from Domestic Violence Act, 2005 passed which provided a backdoor to neutralize marital rape, by calling it as a form of domestic violence. Although, this act stated no rigorous and strict punishment for the rapist, but enabled the wife to obtain judicial separation from her husband. This seemed like a mere pity and just a recognition of the fact that marital rapes exist, and much more needs to be down by the lawmakers regarding marital rape.
The inconsistency, inadequacy and inefficiency of the laws concerning marital rape are what unrests the women the most. The inefficiency of the courts to distinguish between sex and rape, implied consent and coercive consent, within the four walls of a married household, agonizes the women all across the country. Section 375 provides very piecemeal legislation concerning a mammoth subject. The old and weary lens of the law is of the thought that the consent to marry itself encompasses a consent to engage in sexual activity. What is seen to be an implied consent for a sexual act, cannot be coincided with sexual violence?
While unnatural penetration or sadomasochistic sexual acts such as BDSM can involve two consenting individuals, voluntary indulging in violence, it does not invalidate the quest for seeking remedy for Marital Rape. Rape and sex are different acts, and the presence of violence does not necessarily validate either one of them. Consent has to be there and it should be free, absolved of all the coercion and mental undue influence. For eg – a female can be insecure about her physical appearance and consequentially submit to the violent acts of sex. This cannot be construed as consent to engage in sex. Mere appeasement of husband in bed under fear or insecurity does not and cannot validate consent.
The Indian Constitution is the genus of all the subsidiary laws and acts. Therefore, to examine and curb the social menace of marital rape, it is necessary to brush up the constitution with a fine-tooth comb to further examine the perils against women of the nation.
Article 14 of the Indian constitution talks about equality before the law and equal protection of laws within the territory of India. So, while the Indian constitution provides equality to all the citizens, the criminal law contradicts the fact by not recognizing women as victims, who have been raped by their husbands. Moreover, criminal law does not even have a suitable reasonable classification angle to exempt the husbands from falling under the purview of rape. Therefore, the doctrine of reasonable classification falls flat as it has no reasonable nexus, to believe that husbands have an inherent right to force themselves on their wife. They cannot simply hide behind the hollow and futile shield which justifies marital rape as an exercise for availing conjugal rights.
The foundation of such a male-centric criminal law traces back to the Unities Theory, which categorically mentioned that women after, marriage is not considered an independent legal entity. She is solely dependent upon her husband and is a disguised puppet, which is supposed to function at the discretions of her man. IPC was drafted in the 1860s, at the time when India was itself a British Colony. Therefore, the laws, their reasonings and associated excerpts can be traced back to the Victorian era.
Article 21 prohibits the state from denying a person, his life and personal liberty. The Supreme Court, however over the past few years has interpreted the ambit of ‘Life and Liberty’ as to what kind of existence does the term ‘life’ enshrine. The Court has interpreted the clause in light of many recent judgements and has concluded that ‘life’ is not an exhaustive term as it extends beyond the literal meaning of the word. Therefore Article 21, embodies the essence of health, privacy, dignity and safe living conditions among other key features which are necessary for a sustainable life and not just a mere animal existence.
After regular petitions and complaints regarding forced sexual encounters within marital bonds, the courts have started to acknowledge the value of consent and agreement. The Supreme court, in the case of State of Karnataka v Krishnappa, observed that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy ad sanctity of a female.”6 Also in case of Suchita Srivastava v Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity and bodily integrity under Article 21 of the Indian Constitution.7
The above rulings showcase that the courts, may not have been up to the mark with their speed of recognizing the value of individual choices in regard with intimacy, they have now woken up from their deep slumber of ignorance and have been very brisk and alert whenever any such case comes up with enough room for interpretation. Most recently, when Right to Privacy was recognized as a fundamental right, the Supreme Court further included that “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”8
The above rulings, however, did not categorically talk about the perils of marital rape. Neither did the rulings mentioned that a marital bond invalidates the Right to privacy of an individual. However, there still seems a huge gap between powerful legislations and distressed domestic wives. Therefore, a proper address and assurance is the need of the hour in the context of marital rape. The Indian Judiciary System and Parliament are now capable to draft new laws to cater the menace and hear the agony of domestic wives who have been victimized for just existing in this exorbitant patriarchal world. Indian law needs to brush up its lens and see man and women in a matrimonial bond, as separate legal entities. The women, especially the wives still find themselvesin a spot of bother as they don’t have an upfront legal leg to stand on when battling the social hazard of marital rape.
1 M. HALE, THE HISTORY OF THE PLEAS OF THE CROWN: Volume 1 Pg. 628
2 NV. BLACKSTONE, COMMENTARIES *442
3 Muller v. Oregon, 208 U.S. 412
4 Indian Penal Code (45 of 1860) Section 375 Rape
5 Indian Penal Code (45 of 1860) Section 376A Intercourse by a man with his wife during separation
6 The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India)
7 Suchita Srivastava v Chandigarh Administration, (2008) 14 SCR 989 (India)
8 Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).