Marital Rape: A Question of Sexual Autonomy of Married Women

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INTRODUCTION

Marriage is organised in certain societies for procreation, according to an Oxford University report. In these cases, the parties may or may not consent to marriage; hence, if consent is not necessary for marriage, it is not required for intercourse. Furthermore, in cultures where the tradition of paying a bride price is popular, the payment is considered as granting the male the right to sexually control his wife. [1]

So, although traditionally, the home is considered a safe space for women from gendered violence, however, this belief is far from reality. The phrase “marital rape” refers to sexual intercourse between a married couple without the wife’s consent. It could have been obtained by use or threat of force, a fear of danger to her or another person she cares about, or any other harm inferred based on previous attacks, making a woman believe that if she resists, the force will be used against her or that the husband is entitled to the sexual intercourse because they are married. [2] The Declaration on Elimination of Violence against Women, 1993 (DEVW) states that nations should “Widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. [3]

Experts say the ramifications of marital rape can be severe, based on the victims’ experiences. Unlike other types of rape, victims are compelled to live with their attackers and are frequently financially reliant on them. Women who are raped by their husbands in nations with low percentages of female labor participation and education have no way out of the marriage and few legal or institutional options. Single women who have been raped in some countries are forced to marry their attackers as a method of rectifying the offence. [4] Males can also be victims of marital rape, although it is rarely publicized. According to one research, between 13 and 16 percent of men are assaulted by married or cohabiting partners at some point in their lives. [5]

Despite this, marital rape is a type of gendered violence that has avoided both criminal law and human rights recognition in about a third of the world’s countries. This legal opacity gives men who sexually abuse or rape their spouses or intimate partners legal immunity, legitimizing this kind of violence against women. This is a human rights issue that has to be addressed on both a legal and social level.[6]

HISTORY

Several explanations have been advanced regarding men’s historical criminal immunity for marital rape, most of which have their origins in British colonial laws and attitudes. First, the implied consent theory suggested that when women marry, they relinquish their right to refuse sexual intercourse with their husbands. A second approach, based on the oneness of the person, proposed that after marriage, a woman was subsumed into the person of her husband, rendering marital rape impossible. A third perspective portrayed wives as the property of their husbands, with property damage implying that the crime was perpetrated against the victim’s husband rather than the victim herself. As a result, a husband could not rape his wife since she was his property, implying that husbands had the right to rape their wives without consequence. Other arguments included the complexity of proving non-consensual sexual activity in a marital relationship, the alleged proclivity of women to make false claims about being raped to gain an advantage in divorce proceedings, the importance of maintaining the integrity of the institution of marriage, the argument that marital rape is less grave than other kinds of rape, and the argument that women have other legal avenues like domestic violence laws to leave a toxic marriage. [7]

With the recognition of the human rights of women and the emergence of the feminist movement in the nineteenth century, these beliefs began to be questioned. Suffragists such as Lucy Stone challenged the taboo of discussing sex in public by contending that a woman’s freedom to regulate marital intercourse was a necessary component of equality. The Soviet Union was the first country to make marital rape illegal (1922). By the 1960s and 1970s, most Western nations had made marital rape a criminal offence, either by removing legislative exclusions from the definition of rape or by expressly defining it as such. [8]

INTERNATIONAL LAW

Convention on the Elimination of Discrimination Against Women (CEDAW):

Women of all ages are susceptible to violence within familial relationships, which is reinforced by custom and social attitudes, including rape. The persisting, primarily male, notion that consent is not required after marriage fosters the occurrence of marital rape. Acts that cause bodily, emotional, or sexual injury to women are considered discrimination against women, according to CEDAW’s General Recommendation 19 (GR-19). “The right to the greatest quality achievable of bodily and mental health” is also included in GR-19’s definition of “human rights and basic freedoms.” The GR-19 goes on to say that the impact of abuse on women’s physical and mental integrity prevents them from exercising their human rights and basic freedoms equally. Additionally, this recommendation was altered by the General Recommendation 35 (GR-35), which stated that marital rape is rape based on a lack of free consent since there are usually coercive methods involved. The fact that GR-35 recognizes the ingredients of marital rape emphasizes the impact of its non-recognition on women’s basic liberties. [9]

India is required to adopt all relevant steps, including statutory provisions, to amend or abolish existing legislation, traditions, and systems that discriminate against women as a signatory under Article 2(f). To alter conventional ideas of consent, new law or revisions to IPC are both required and adequate. According to an examination of CEDAW’s regulations, India is in breach of international human rights standards forbidding gender inequality and rape. Since rape committed by the victim’s partner has been justified solely on the basis of her marital status, thus denying her the rights guaranteed to unmarried women, the deliberate exclusion of marital rape from the IPC fits within the CEDAW definition of being discriminatory.

Despite the fact that India has not ratified the Optional Protocol to CEDAW, which institutes a body to oversee State Parties’ compliance with the Convention. India has stopped the committee from taking any action against it by refusing to acknowledge it as an institution, even if activities that violate CEDAW occur within its authority. Although individuals cannot contact the committee with their problems, India still has a responsibility to defend and develop the human rights of women, regardless of their marital status. [10]

Since GR-35 generates liability for acts and omissions of state and non-state actors arising from violations of Article 2 of CEDAW, which mentions the undertaking of State Parties to undertake measures to end discrimination, India will have to face consequences for its state and non-state actors. In terms of state obligations, if a state fails to create or amend laws to ensure that they are not discriminatory against women, or if its organs or agents perform acts or omissions that are discriminatory against women, it must impose appropriate sanctions and compensate the harmed person. And if a state fails to do so, it will be considered a violation of human rights. [11]

Other International Human Rights instruments:

In addition to CEDAW, India’s failure to recognize marital rape as a crime breaches international human rights documents such as the International Covenant on Civil and Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR), Beijing Declaration, and Declaration on the Elimination of Violence Against Women (DEVAW).

According to Article 26 of the ICCPR, domestic legislation must provide equal and effective protection against discrimination on any basis, including any other status of a person not previously stated in the provision, such as race or sex. Because India is a signatory to the Covenant, it is prohibited from violating any of the Covenant’s fundamental rights, as stated in Article 5. [12]

All human beings are free and equal in dignity and rights, according to Article 1 of the UDHR, and humans are entitled to a social and international framework in which the declaration’s rights and freedoms can be fully acknowledged, according to Article 28 of the UDHR. As a result, India is obligated to promote the right to bodily autonomy of married women since it is a signatory to the instrument. [13]

India’s laws are in violation of not just international human rights standards, but also ideals established during the Beijing World Conference on Women. To the extent that objections to CEDAW are minimized and the Optional Protocol is signed, the Beijing Declaration invites governments across the world to ensure universal ratification and full implementation of CEDAW. Countries were also asked to repeal discriminatory legislative elements, such as penal codes, as a matter of priority in this proclamation.[14]

The Declaration on the Elimination of Violence Against Women (DEVAW) talks about using the principle of due diligence in ensuring the elimination of violence against women in Article 4(c) and Article 4(d) says that states should adopt legal punishments in domestic legislation to penalize injustices faced by women. As a result, it is a widely accepted notion that violence against women should be addressed in whatever effective way possible, including through domestic legal change.[15]

POSITION OF INDIAN LAW

Section 375 of the Indian Penal Code defines rape as “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the seven following descriptions.” Thus, there are 7 situations where sexual intercourse would be considered rape under Indian law and 2 exceptions where it would not be considered rape. The second exception to the section 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”.[16] This means that if a wife is above 15, sexual intercourse which would be considered rape otherwise, would not be considered rape simply due to her being married to her rapist.

Fundamental rights aspect:

  • Right to equality: Equality before the law and equal protection of the law are guaranteed under Article 14 of the constitution. Despite the fact that the country’s constitution allows for it, the country’s rape laws discriminate against married women. Women are protected against rape by the law, which divides them into two categories. The woman has the right to be protected under this statute only if she is unmarried, and she must be under the age of 15 if she is married. As a result, it seems to take away a married woman’s right to be free from her husband’s sexual exploitation. In Budhan Choudhary v. State of Bihar[17], the Supreme Court declared that “when a classification is formed under Article 14 of the Constitution, a test of reasonability is applied, which is passed only if there is a reasonable link between the classification and the goal it seeks to achieve.” [18]
  • Right to Privacy: Although the Indian Constitution makes no explicit mention of the right to privacy, the Supreme Court has recognized that a right to privacy as a fundamentally guaranteed right under the scope of Article 21 in a string of landmark judgments such as Neera Mathur v. LIC [19], Kharak Singh v. State of Uttar Pradesh [20], Govind v. State of Madhya Pradesh [21], and others. Article 21 of the Constitution guarantees the right to privacy, which includes the right to protection and sexual safety is harmed by any sort of forceful sex. It is argued that allowing marital exclusion to rapists compromises a married woman’s right to protection by forcing her into a sexual relationship that she does not desire. In addition to physical privacy, the right to decisional privacy, the right to personal autonomy, and the right not to be harassed are all part of the right to privacy. Any forced sexual cohabitation is a breach of all these rights. [22]
  • Right To Bodily Self-Determination: Similar to the right to privacy, this right does not find a particular mention in the constitution, however, it is considered a part of the ambit of article 21. This right gives every citizen of the country bodily autonomy as well as conscience, and an individual should be the only one who has a final word in issues regarding their body, sexual expression, and self-assurance. The law of the land takes away such a personal, intrinsic, and intimate decision-making right of married women by disregarding their consent and will. [23]
  • Right to live with dignity: Article 21 encompasses the right to live with human dignity and all that entails way more than the necessities of life since having the bare minimum needs met does not ensure a fulfilling life. The right to live with human dignity is one of the most basic components of the right to life since it determines a person’s quality of life. In a series of instances, the Supreme Court has ruled that rape violates the victim’s right to life and the right to live with dignity. The Chairman, Railway Board v. Chandrima Das is one such case, in which the Court stated that rape is not only a criminal offence but also a transgression against society as a whole. In this way, the marital exception concept infringes on a spouse’s right to a dignified life. Any law that compromises women’s right to dignity and empowers husbands to force their wives into sexual intercourse against their consent is unconstitutional. [24]

The Supreme Court of India has repeatedly concluded in several judgments in recent years that the law gives substantial rights to women, including the ability to resist unwelcome sexual approaches by men. The Supreme Court addressed the subject of marital rape in its historic decision in Independent Thought vs. Union of India & Anr.[25], in which the Court considered whether sexual intercourse between a man and his wife aged fifteen to eighteen constitutes rape or not. The supreme court noted in its decision that the marital rape exception provision establishes an unnecessary and artificial distinction between a married girl child and an unmarried girl child that has no logical relevance with the goal sought. The demarcation violates Article 14 of the Constitution’s right to equal protection, as well as the constitutional ideology and morals enshrined in Articles 15(3) and 21 of the Constitution, which deal with special protection for women and children, as well as the right to life and personal liberty, respectively. This contributes to the perpetuation of prejudices and biases against married women, such as the notion that marriage implies consent by default and that women lose their physical autonomy when they marry. [26]

RECENT EVENTS

As of now, women can approach the court under IPC section 498 a or Protection of Women from Domestic Violence Act, 2005. Additionally, the marital rape of an adult wife who is legally or informally separated from her husband is a crime punishable by two to seven years in jail. Other married women who are subjected to “sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of woman” by their husbands may seek financial compensation from their husbands, including allowances and child custody, under the Protection of Women from Domestic Violence Act. [27]

Currently, the Delhi High Court is hearing a PIL (RIT Foundation v Union of India)challenging the second exception of section 375. In 2015, the NGO RIT Foundation filed a PIL with the Delhi High Court, questioning the legitimacy of the “marriage exception.” The All-India Democratic Women’s Association (AIDWA) and three individual petitioners, filed petitions after the Supreme Court ruled in 2017 that the said exception does not apply if the wife is under the age of 18. The Central Government argued in an affidavit filed in 2016 that criminalizing “marital rape” would “destabilize the institution of marriage and become a weapon for harassing husbands.” In a fresh document submitted on January 20, 2022, the Center asserted that consultations on this “contentious subject” are now underway, particularly in light of the 2013 Justice JS Verma committee findings. [28] A two-judge bench comprising of Justices Rajiv Shakdher and C Harishankar is currently hearing the case.

The petitioner NGOs as well as the Men’s Welfare Trust, a “men’s rights” organization that opposes the petition, have presented their arguments. At the moment, the Center has requested that the Court give it more time to make its position explicit, claiming that it is “undertaking a comprehensive exercise” of holding consultations on criminal code revisions and that the Court should give time to complete the assessment. [29] 

The pertinent question is about how consent is viewed or described in a situation where there is “implied consent” and “expectation of conjugal sexual relationship”. There is also a difference between a right and a reasonable expectation of sexual intercourse. When a party assumes that they have the right to sex due to their reasonable expectation of the same, that’s when a problem arises. The court is also analyzing the argument of “inherent and irrevocable consent” due to marital relationships and the right to say no or sexual autonomy.

Another contention is whether the difference of rape within and outside a marital relationship qualifies as “intelligible differentia” under article 14. Petitioners contend that there is no reasonable justification to elevate the “marital relationship” and restrict a married woman’s ability to prosecute her husband if her rights were violated. On the other side, the government and men’s rights organizations say that the institution of marriage indeed accounts for a reasonable distinction and that demarcating sexual assault within a marriage as a serious crime of “rape” would harm society and marriage. Few other contentions regarding the collection of evidence, the possibility of false cases, impact of false cases, whether this would create a new offence or not, legal lacuna, the scope of judicial interference, logistical issues, and ethical issues are being discussed. [30]Bottom of Form

CONCLUSION

Although India has come a long way in terms of women’s rights, issues like marital rape always seem to tear apart the illusion of a ‘progressive’ India and reveal that misogyny, patriarchy, and sexism still have a stronghold on our society. The debate may on the surface be about marital rape but in reality, it makes us shed light on the condition of women under the institution of marriage and how law still hasn’t been able to alleviate the position of women within the family unit. If an institution will be destroyed by granting a person the right to say no to unwanted sexual intercourse, then the institution itself is rotten. However, seeing how this discourse is being picked up by the entire country on various platforms, there seems to be a glimmer of hope from the judiciary and citizens of India. 

REFERENCES

  1. The Indian Penal Code, 1960
  2. The Constitution of India
  3. Torres, M. & Yllo, Kersti. Marital Rape: Consent, Marriage and Social Change in Global Perspective. (2016). https://www.researchgate.net/publication/329399602_Marital_Rape_Consent_Marriage_and_Social_Change_in_Global_Perspective
  4. Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020. https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/
  5. OHCHR. Declaration on the Elimination of Violence against Women. (OHCHR, Geneva,1993). https://www.ohchr.org/en/professionalinterest/pages/violenceagainstwomen.aspx
  6. Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/
  7. Tjaden, P., & Thoennes, N. Prevalence and consequences of male-to-female and female-to-male intimate partner violence as measured by the National Violence Against Women Survey. Violence Against Women. 6(2), 142–161. (2000). https://doi.org/10.1177/10778010022181769
  8. Melanie Randall & Vasanthi Venkatesh. “Right to No: Crime of Marital Rape, Women’s Human Rights, and International Law”.  Volume 41, Issue 1, Article 3. Brooklyn Journal of International Law (2015). https://www.researchgate.net/publication/299595006_The_Right_to_No_The_Crime_of_Marital_Rape_Women’s_Human_Rights_and_International_Law/link/570178c908ae650a64f8c304/download
  9. Prof. Jennifer Koshan. “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of The Canadian Experience”. The Equality Effect. (September, 2010). http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf
  10. OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
  11. Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation
  12. OHCHR. International Covenant on Civil and Political Rights. (OHCHR, Geneva, March, 1976). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  13. United Nations. Universal Declaration of Human Rights. (UN, New York, December 1948). https://www.un.org/en/about-us/universal-declaration-of-human-rights
  14. United Nations. Fourth World Conference on Women. Beijing Declaration. (UN, Beijing, September, 1995). https://www.un.org/womenwatch/daw/beijing/platform/declar.htm
  15. Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18th February, 2022)
  16. Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[1] Torres, M. & Yllo, Kersti. Marital Rape: Consent, Marriage and Social Change in Global Perspective. (2016). https://www.researchgate.net/publication/329399602_Marital_Rape_Consent_Marriage_and_Social_Change_in_Global_Perspective

[2] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020. https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[3] OHCHR. Declaration on the Elimination of Violence against Women. (OHCHR, Geneva,1993). https://www.ohchr.org/en/professionalinterest/pages/violenceagainstwomen.aspx

[4] Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[5] Tjaden, P., & Thoennes, N. Prevalence and consequences of male-to-female and female-to-male intimate partner violence as measured by the National Violence Against Women Survey. Violence Against Women. 6(2), 142–161. (2000). https://doi.org/10.1177/10778010022181769

[6]  Melanie Randall & Vasanthi Venkatesh. “Right to No: Crime of Marital Rape, Women’s Human Rights, and International Law”.  Volume 41, Issue 1, Article 3. Brooklyn Journal of International Law (2015). https://www.researchgate.net/publication/299595006_The_Right_to_No_The_Crime_of_Marital_Rape_Women’s_Human_Rights_and_International_Law/link/570178c908ae650a64f8c304/download

[7] Prof. Jennifer Koshan. “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of The Canadian Experience”. The Equality Effect. (September 2010). http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf

[8]  Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[9] OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[10] OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[11] Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation

[12]OHCHR. International Covenant on Civil and Political Rights. (OHCHR, Geneva, March 1976). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[13] United Nations. Universal Declaration of Human Rights. (UN, New York, December 1948). https://www.un.org/en/about-us/universal-declaration-of-human-rights

[14] United Nations. Fourth World Conference on Women. Beijing Declaration. (UN, Beijing, September 1995). https://www.un.org/womenwatch/daw/beijing/platform/declar.htm

[15] Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation

[16] The Indian Penal Code, 1960, s. 375

[17] 1955 AIR 191

[18] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020.https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[19] 1992 AIR 392

[20] 1955 AIR 191

[21] 1975 AIR 1378

[22] Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18th February, 2022)

[23] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020.https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[24] Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18th February, 2022)

[25] AIR 2017 SC 4904

[26] Abhinav Mehrotra and Konina Mandal. “Marital rape: finding the right to say no”. The Leaflet. (July 22, 2021). https://www.theleaflet.in/marital-rape-finding-the-right-to-say-no/

[27] Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[28] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[29] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[30] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

Author: SONALI AHUJA, IPU

Editor: Kanishka VaishSenior Editor, LexLife India

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