A KNOT: WHERE RAPE IS LEGAL

A KNOT: WHERE RAPE IS LEGAL

This Article is written by Archana Upadhyay, pursuing B.A. LL.B. from Galgotias University.

Introduction

Indian Constitution has guaranteed us the Right to Equality through Article 14 and 15 but the question arises do we really enjoy the equality in this patriarchal society, where every man tends to dominate women? We live in a society where married women are being forced to have sex, where women are brutally beaten up in order to have non-consensual sex and because of which women suffer mental, physical and emotional torture, apparently she is forced to commit suicide or take other negative step. This Article focuses on the how Marital Rape plays its role in the Indian Context.

Understanding the Penal Provision

The controversial term ‘Rape’ has been defined under Section 375 of Indian Penal code, 1860 where the term ‘rape’ has been defined as, a man commits rape if –

  • He penetrates his penis or insert any object or into a vagina, mouth, urethra or anus of a woman.
  • If he compels any women to do such act with any other man or manipulates any part of her body to cause such penetration.
  • If he applies his mouth to the vagina, urethra or anus or makes her to do so with him or any person.

The aforementioned three conditions shall be considered as rape if done in any of the the following seven circumstances-

  • The act shall be done against her will
  • Without her consent.
  • When her consent has been gained by putting a woman or any person in whom she is interested, in a fear of death.
  • When a woman believed that the man is her lawfully married husband and she has given her consent to her husband only.
  • When woman has given her consent in the state of unsoundness of mind, intoxication or administration by him personally or by any other stupefying act so that she will be unable to understand the consequences when she gives such consent.
  • With or without consent when she is under eighteen years of age.
  • When she is at such situation where she fails to communicate her consent. 

The following are exceptions of the above Section which means the above mentioned acts shall not be considered rape in done under the following circumstances:

  1. A medical procedure or intervention shall not constitute rape.
  2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Exception 2 holds the non-liability of the husband to the any act of sexual nature done without the consent of the wife; except if the wife is under the age of 15 years.

The definition of Marital Rape has been elaborated by JS Verma Committee and also by Mathura Rape Case (1981) which said that Marital Rape is a concept based only on the consent of the woman. According to data, “more than 1 in every 7 women who have been married has been raped in their marriage”  and according to the United Nation population fund more than two-thirds of Marital women aged between 15-50 in India have been subjected to forced sex, beaten, tortured for a demand for dowry. After this there are still 36 Countries which haven’t criminalized and this number includes the country India. Where we all know criminalizing of marital rape will show a step towards the women empowerment but will not end the problems. The problem will end up when the administration system takes the matter seriously and acts accordingly. This needs to be cured very soon as the graph depicting  rape as well as marital rape is increasing day by day and even in the case of Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that it is a ‘deathless shame and the gravest crime against human dignity’.

Marital Rape and Laws in India:

Marital Rape in India is subject to the age by the virtue of exception 2 of Section 375 IPC, which explicitly states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape” from which one can say that the married women who are above 18 years of age would not amount to Marital Rape and the exception to the age which was set up in the case Independent Thought Vs. Union of India.  The punishment of Section 375 has been given under Section 376 IPC which also highlights the Punishment to some of the conditions in Marital Rape and those are:

S. No. Wife subjected to rape Punishment
1. Age of Wife is between 12-15 Years. 2 year Imprisonment or fine or both.
2. Age of Wife is below 12 Years. Imprisonment for not less than 7 years to 10 years or fine.
3.                       The wife is judicially separated. Imprisonment up to 2 years and fine.

In Indian laws Marital Rape has been also dealt under Domestic Violence Act, 2005 where it is not treated as a crime but is treated as a ground for Judicial Separation from her husband and this is the only law related to Marital Rape in India under Section 498A of IPC. Apart from this no Court has the authority to take cognizance over the matters of Marital Rape which do not fall under any of the above mentioned factors.

Further, Article 2 of UN Declaration of Human Rights, namely, Declaration of the Elimination of Violence against the Women defines the Marital Rape and gives the benefit of doubt to the victim and not to the criminals. This declaration hasn’t been ratified yet by India.

Measures for Marital Rape:

The law commission report tried to bring up the amendment, in Section 375 of Indian Penal Code, which was related to Marital Rape. And the reports were:

  1. 42nd Law Commission Report.
  2. 172ndLaw Commission Report.

42nd Law Commission Report: The law commission report has focused to exclude the ambit of Marital Rape from Section 375 of IPC. And also put forwarded a clause which said that it should not be called as a rape and should be penalized as an offence but with a different name. There was a long debate between task force on Women and Children set up by the Women and Child Department of Government and The Law Commission on the point of removing exception 2 of Section 375. The Law Commission also made a recommendation to to change its name as Sexual Assault and make the section wider. But no result was fetched from this as both the parties did not have any new definition for Marital Rape.

172nd Law Commission Report: This Law Commission report was brought in March, 2000 and it also made many recommendations regarding the changes to be brought in the ambit of Rape and those were:

  1. To replace ‘Rape’ with ‘Sexual Assault.’
  2. Sexual Assault on any part should come in the ambit of Rape: By the Case Sakshi Vs. Union of India.
  3. Exception 2 of Section 375 of IPC should be deleted.
  4. Section 509 i.e. Word, gesture or act intended to insult the modesty of a woman of IPC should have the higher punishment.
  5. Marital Rape should be considered from a gender neutral point of view i.e. for both husband and wife.

172nd Law Commission Report also highlighted that the definition of Rape should be broadened to include both the genders. The result not being surprising; as the situation has been the same and nothing has been changed till now.

Conclusion:

The exemption to Marital Rape from being a crime in India has given the shield to all the men from having a non-consensual sex with their wives. Where we live in the society where the women are being suffered and are ill-treated. Though living in the modernized world the women has to fight for her rights whether it is of equality, freedom or right to life. We should bring the measures where women are treated as a human being and not as property or the chattels. The Supreme Court and the Government of India have realized that a minor wife can be the victim to the Marital Rape likewise it must also be realized that a major wife can also be traumatized from Marital Rape. From the above discussion, it can be inferred that the Marital Rape should be penalised in our country as well so that the aggrieved should also be able to live a dignified life without any atrocities.

References:

  • India Law Journal, Indialawjournal.org (2020) https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html (last visited on April 25, 2020).
  • Bhavish Gupta &Meenu Gupta, Marital Rape: – Current Legal Framework in India and the Need for Change Marital Rape -An Understanding, 1 Galgotias Journal of Legal Studies (2013), https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf (last visited on April 25, 2020).
  • Patricia Mahoney & Linda M Williams, Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape, http://www.ncdsv.org/images/nnfr_partnerviolence_a20-yearliteraturereviewandsynthesis.pdf
  • Independent Thought v. Union of India, W.P. (c) No. 382 of 2013 (India).
  • Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922.
  • Sakshi v. Union Of India (UOI) And Ors. decided on 9 August, 1999.