Pooja Chaudhuri Chaudhuri
The only fiction I enjoy is in books and movies.
On August 29, the Centre told the Delhi High Court that marital rape cannot be considered a crime in India because it will hurt the institution of marriage and we should not follow western traditions blindly. It added that the main problem lies with determining the value of evidence.
Earlier on August 10, the Supreme Court had said after the Parliament’s decision that forced marital intercourse and sexual acts are not rape, hence, cannot be considered as a criminal offence.
There are two main issues with the government’s reasons for not considering marital rape as a crime. Firstly, the so-called pedestal of sanctity that the government has put marriage upon ceases to exist the moment a husband forces himself upon his wife.
Secondly, recognition is the first step for any solution. Only when we acknowledge that marital rape is a long-standing issue, we can fight it. Calling it as “an act against the institution of marriage” and terming it “western” is an attempt to belittle the crime and dodge responsibility.
And lastly, “no lasting evidence in case of sexual acts between a man and his wife” cannot be a justification for not making it illegal. A crime which is difficult to prove is still a crime.
All property, succession and economic rights in India reflect that a woman is the ‘property’ of men – her father before marriage and that of her husband after.
Marriage rights in India reflect the same.
Section 375 of the Indian Penal Code (IPC), which defines rape, has in it an exception clause which says “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This despite the law also mentioning that a man is said to have committed rape if the sex was against the will of the woman.
Indian rape law is discriminatory and patriarchal as it believes that a woman is bound to have sex with her husband during the course of the marriage and even when it’s forced, it literally isn’t a crime.
The Protection of Women from Domestic Violence Act (DVA), 2005 says that an act of domestic violence occurs when the “respondent” (adult male) “harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person (woman) or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.”
It further adds, “‘Sexual abuse’ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.”
As per DVA, the punishment for domestic violence is – “In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.”
Domestic violence act is basically a civil law. Even if it is proved that a wife was sexually violated by her husband, he will not be imprisoned.
However, in case he fails to pay the maintenance (compensation) ordered by the court, he may be jailed for one month as per the Code of Criminal Procedure (CrPC). “If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.”
In conclusion, the Indian law gives ‘marital immunity’ to a husband for raping his wife, punishing him only with monetary damages or one month jail time, that too only if he doesn’t pay compensation.
The word ‘immunity’ in marriage for the prosecution of rape was introduced by Sir Matthew Hale, an English lawyer and judge, most known for his treatise ‘The History of the Pleas of the Crown’, published posthumously after 60 years in 1736.
Hale believed that marriage was a legal contract where ‘consent’ including that of the body is implied. He wrote, “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.”
Being a former British colony, India adopted the common law system which recognised Hale’s ‘Implied Consent Theory’.
Under the impact of the second wave of feminism in the 1970s, Australia was the first country which follows the common law to criminalise marital rape in 1976. In the two decades preceding this reform, many Scandinavian countries, including Sweden, Norway and Denmark, and several countries in the Communist bloc, the former Soviet Union and Czechoslovakia passed laws criminalising spousal rape. In 1932, Poland was the first to introduce a law to specifically make it a criminal offence. Since the 1980s, several countries across the world, including United States, Canada, Ireland, Israel, South Africa, Ghana, Malaysia and New Zealand have brought in legislations to strike down marital exemption from rape.
In 1991, even the United Kingdom struck down its common law principle that a marriage contract implied that a woman consents to all sexual activity.
In 2002, the Supreme Court of Nepal said, “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.”
India is one of the 36 countries in the world where marital rape is legal. Most of the countries where it is not considered a crime are in Asia, and none of the Middle Eastern Countries recognise it as a crime.
Moreover, in some of the nations, including India marital rape of a minor is also allowed as our law says, “if she is below 18 years of age but more than 15 and married, then no offence of rape is made out.”
One of the main reasons given by the Centre for not recognising marital rape as a criminal offence in India was determining the value of evidence. “The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his wife,” reads the affidavit submitted by the Centre in the Delhi High Court. The entire document can be read here.
Firstly, a crime cannot be ignored on a mere assertion that it is difficult to prove.
Secondly, is marital rape difficult to prove? No.
Proving rape is always based on circumstantial evidence. Even when committed as per the popular belief, it might still difficult to prove because in most cases a woman/girl is raped by someone she knows.
If a woman is victim to marital rape, it would mean that she isn’t raped once but there will be a history of sexual abuse, and this can be proved by forensic evidence. There will be evidence of physical violence in forced rape. Even if medical examination is inconclusive, it still cannot be used as an argument against criminalising the act as there are other methods to prove it – witness testimony, the wife recording her husband’s admission of guilt via electronic communication.
The Domestic Violence Act already recognises sexual violence against the wife. How is the crime established there, and why can’t the same method be used to criminalise spousal rape?
Moreover, the Centre’s argument that a law against marital rape will be misused is based on an absurd logic that vengeful wives are waiting to exploit the first opportunity they get to send their husbands to jail.
In 2015, a woman moved the apex court on the plea that she was raped and assaulted by her husband. She was also hospitalised due to her injuries, however, her husband was never prosecuted and the case was dismissed because our law does not consider rape by a spouse a penal offence. It is a distressing reality that an abuse faced by women across the nation is not recognised by the Indian law.
After the gang rape of Jyoti Singh in 2012, the Justice J S Verma Committee had backed the long standing demand of women’s activists that marital rape should be considered as a criminal offence. “The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation,” the committee said in its report.
It is time that the government stops putting rape into different categories. A rape is a rape, whether committed by a stranger, an acquaintance, or even a husband. Indian law needs to remove the special provision given to some rapists and accept that marital rape is a reality that thousands of women suffer from.
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