Marital Rape: Should It Be Made an Alternate Ground for Divorce?

1. INTRODUCTION

1.1 Background

Rape has, time and again, been defined to be the most heinous crime that can be committed against a woman- a crime which can be regarded as the most brutal attack that can be inflicted upon virginity, youth, motherhood and womanhood itself. [1] But the bigger picture to this definition always goes untold.

Let us take up a story. Imagine an average rape victim. Let us name her X- an unmarried lady of 24. Now suppose that X goes out work. Later in the evening, as she heads back home, she is met by a stranger who takes her into isolation and becomes sexually aggressive. She is pinned down and is raped. Like most rape victims, she suffers little injury extrinsic to the rape itself. She has no bruise or other corroborative evidence, but carries an injury that is not recorded in terms of criminal evidence of cuts and marks, or lesions and tears- she carries with her the trauma of the ghastly act. If our hypothetical rape victim, X, manages to make it to the trial stage of the process, she will be subjected to cross examination that includes a detailed scrutiny of her prior sexual history with the assailant offered to prove that she consented and is now lying. Therefore, if this victim reports having been raped to the police, she will be subjected to a humiliating process—the laws and legal procedures that constitute what some scholars have called the “second rape.” [2]

Now let us change a basic fact of the above case. Let the hypothetical rape victim X be, this time, a 34 year old married wife, and the sexual assaulter be her husband. Now the story and misery of X gets hardened. She stands helpless to the assaults of her atrocious husband.

A wife getting ‘raped’ by her husband is still a taboo and the Indian Penal Code, 1860 still stands shamelessly chauvinistic in its approach, for it denies to see ‘forceful intercourse’ by the husband on his spouse as rape at all and the Personal Laws lay no ground for divorce based on ‘marital rape’. In these conditions where the woman has to continue living with her ‘rapist’ husband, she has to undergo the trauma of being abused-physically, mentally, psychologically and in all such ways undermining her dignity- she continues to live getting raped, often in ignorance and mostly, in helplessness.

This project will deal with the various aspects of this exemption clause and the project scope has thus, not been limited only to the Personal Law aspect- the Constitutional and Criminal Law aspects have been included alongwith a brief discussion on the Protection of Women from Domestic Violence Act 2005.

The project report starts with the discussion on the historical and contemporary background alongwith the corresponding viewpoints attached with the institution of marriage. Then, the existing provisions of this spousal exemption are taken up in the light of the Constitutional, Criminal and Personal Laws, and criticisms for the same are provided along. Under the same chapter, a brief discussion has been adopted on how the Protection of Women from Domestic Violence Act 2005 deals with the cause of marital rape. Following this order, a descriptive chapter on the traditional and modern justifications as to the exemption clause has been undertaken. The concluding chapter presents the researcher’s views and submissions as to the project topic.

1.2 Research Methodology

For this project titled, ‘Marital Rape: Should it be made an Alternate Ground for Divorce?’ the doctrinal method was judged to be most appropriate. Primary resources referred to in the course of research include books, journals, law reports and cases, most of them accessed from the NALSAR law library. Other sources like articles, surveys, and the like were accessed online through the use of online databases. All direct quotations have been properly footnoted. This project is an original work of the researcher and no part of it has been plagiarized in anyway whatsoever.

MARITAL RAPE: GENERAL OVERVIEW

2.1 Definition

The term ‘marital rape’ (also referred to as ‘spousal rape’) refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.

There are principally three kinds of marital rapes:

Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.

Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed, shoved etc. In battering rapes, women experience both physical and sexual violence.

Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape. [3]

2.2 Historical Background

Historically, a man could not and to this day, cannot be criminally prosecuted for raping his wife under the Indian legislation. This inability to prosecute a husband, criminally, is based on the common law definition of rape itself. The foundation of this exemption can be traced back to the statement made by Sir Matthew Hale, C.J., in 17th century England. Hale 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 herself in kind unto the husband, which she cannot retract.” [4]

This established the notion that once married, a women does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “licence to rape” their wives. [5]

2.3 Current Situation

According to the Ministry of Home Affairs, a crime is committed against a woman in India every three minutes. The National Crime Records Bureau reports 1,85,312 crimes committed against women in 2007 – 75,930 of which were considered to be of domestic violence (Cruelty by husband or relatives). [6] Torture and molestation were the most widespread felonies. The actual figure could be ten times higher as many cases go unreported with victims unwilling to speak out, fearing the shame and stigma associated with being a divorced or separated woman in traditional Indian society.

While attitudes towards women in educated, urbanized areas have improved, those of rural India remain unenlightened. Both men and women see violence as a part of gender relations. The UNFPA report found that some 70 percent of Indian women believed that wife-beating was justified under certain circumstance, such as refusal to have sex or for not preparing food on time. [7] Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee.

And even with the implementation of Protection of Women from Domestic Violence Act, 2005, marital rape continues to go largely unreported and usually comes out as figures in covert polls conducted by agencies like the one carried out by AC-NIELSEN ORG-MARG for India Today’s annual sex-survey which reports that 46% of Indian women have, at some point of married life, undergone some form of sexual abuse- including marital rape.

3. LEGAL POSITION IN INDIA

3.1 The Personal Law Aspect

Marriage has always been thought of as a social institution, and thus there has always been a social interest in protecting and preserving it, it cannot be dissolved like any ordinary contract. There are specific theories that govern the grounds on which divorce may be sought, and unless the ground is appropriated under these theories and expressly enumerated under the various Personal Laws governing the Mohammedans, Hindus, Christians and Parsis, the Court cannot pass a decree for marriage. The grounds on which the divorce is granted are generally categorized into the following theories [8] :

Offence/Guilt or Fault Theory: If either of the parties is guilty of committing any matrimonial offence, the aggrieved party is entitled for divorce. The other party is supposed to be innocent. For instance if one of the parties committed adultery or treated the other party with cruelty or deserted the other party, the other party is entitled for divorce.

Consent Theory: This theory is based upon the premises that the marriage is entered into by the parties out of their free consent and volition and hence they must also be free to put an end to the marriage if both of them agree.

Breakdown Theory: This theory provides that if the marriage is irretrievably broken down and became a wreck, leaving no substance in the marriage except the form, the parties must be free to put an end to the marriage.

Under the current set of guidelines provided under the Personal Laws for divorce, marital rape is not included in any of the Personal Laws. The grounds for divorce include cruelty [9] however marital rape doesn’t come under the ambit of cruelty- and surprisingly so.

3.1.1 Criticism

Over the years, the Courts have held, in respective cases, that:

–“…cruelty is lack of such conjugal kindness which inflicts pain of such a decree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted.”

Bhagat v. Mrs. V D. Bhagat [10]

-“the cruelty alleged should be of such type as to convince the the Court that the relations between the parties had deteriorated to such an extent that it had become impossible to live together without mental agony, torture and distress.”

Ashwini Kumar Sehgal v. Swatantar Sehgal [11]

-“a single act of physical violence may also amount to cruelty.”

Marry v. Raghvan [12]

Despite cruelty being defined, several times, in such broad sense and the grounds for divorce being demarcated into such broad areas, marital rape fails to feature in any of the these theories with respect to the Personal Laws in India- neither of Mohammedan Law, Hindu Law, Christian Law or Parsi Law- includes marital rape into the grounds for seeking divorce.

Though several independent researches by various organizations has established marital rape to be a brutal form of cruelty, the Indian Courts are yet to pass a decision on accepting marital rape as a form of cruelty and as a ground for divorce.

Also, if a woman can apply for divorce when her husband has been guilty of sodomy [13] to escape a marriage of sexual abnormality, then why is she barred from escaping a marriage of sexual abhorrence?

And finally, if the Court feels that men and women should not be forced to live together in turmoil, then, on what ground does it keep from a suffering woman, her right to escape a malignant, deleterious marriage in which she is sexually objectified, tortured and raped?

3.2 The Constitutional Law and Criminal Law Aspect

The IPC defines rape under sec. 375 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 six following descriptions:-

First: Against her will.

Secondly: Without her consent.

Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly: With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: With or without her consent, when she is under sixteen years of age.

Explanation: – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: -Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape].

Now if we look into the above definition and the amendments that followed, we come across the following facts:

Sec. 375 only two groups of married women are covered by the rape legislation- those being under 15 years of age and those who are separated from their husbands.

While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim. [14]

Under Section 376-A added in 1983 in the IPC, 1860, rape of judicially separated wife was criminalized. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India. [15]

Thus, a husband can now be indicted and imprisoned up to 2 years, if firstly, there is a sexual intercourse with his wife, secondly, without her consent and thirdly, she is living separately from him, whether under decree or custom or any usage.

Otherwise, a man is not liable for any sexual act that he forcefully performs on his wife (except sodomy), unless they are living separately under a decree of separation –despite the fact that the wife may be subjected to much sexual humiliation.

Thus, rape in India is a grievous offence, but it is an offence that is recognized only outside the boundaries of marriage.

However, The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Sec. 375. In their words, “Naturally the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of Sec. 375 and not to call it rape even in a technical sense. The punishment for the offence may also be provided in a separate section.” [16]

The subsequent Law Commission [17] however disagreed with the restructuring suggested by the former. They felt that such arrangement would “produce uncertainty and distortion” and hence Sec. 375 should “retain its present logical and coherent structure”. [18]

With regard to age, however, they were of the opinion that it should be increased to 18 years. In their words, “the minimum age of marriage now laid down by law (after 1978) is eighteen years in the case of females and the relevant clause of Sec. 375 should reflect this changed attitude. Since marriage with a girl below eighteen years s prohibited (though this is not void as a matter of personal law) sexual intercourse with a girl below 18 years should also be prohibited.” [19]

But as has been stated by the researcher in the previous section the latest report of the Law Commission [20] has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision “may amount to excessive interference with the marital relationship.”

3.2.2 Criticism

In India marital rape exists de facto but not de jure. The following criticisms can be drawn based upon the exception clause under sec. 375 of IPC.

In Bodhisattwa Gautam v. Subhra Chakraborty [21] the Supreme Court said that “rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing marital rape. [22]

The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and “right to live with human dignity” [23] is thus, within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is seen that the exception provided under Section 375 of the Indian Penal Code, 1860 is in violation of Article 21 of the Constitution.

Article 14 of the Constitution guarantees the Fundamental Right that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. The exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.

According to the Indian Penal Code, 1860, it is rape if there is a non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both, which is quite less in comparison to the punishment provided for rape outside the marriage.

3.3 The Protection of Women from Domestic Violence Act, 2005

In India, the Protection of Women from Domestic Violence Act 2005 (passed August 2005; entered into force October 2006) criminalizes marital rape as a form of domestic violence, and therefore attracts a lesser jail term than non marital rape. This is the only form of penalizing marital rape in India, and it is a civil remedy and not a criminal action.

4. JUSTIFICATIONS TO SPOUSAL RAPE EXEMPTION

4.1 Traditional Justifications

The traditional justifications, as have been given by various theorists and jurists, are discussed below.

4.1.1 Implied Consent and Contract Theory

The most common rationale for the marital rape exemption is Hale’s notion that a marriage constitutes a contract. The terms of this contract include a wife’s irrevocable consent to have sexual intercourse with her husband, whenever he wishes. This has fostered the notion that a husband has a “marital right” to sexual intercourse. According to the theory of implied consent, marital rape can never occur because all sexual contact within a marriage is assumed to be consensual.

The contract theory, also based on Hale’s statement, is intertwined with the implied consent theory. Under the contract theory, Hale stated that when a woman marries, she gives up her rights to her body because she has formed a contract with her husband that cannot be retracted. And this ‘contract’ justifies any forceful demand of sex from the husband.

4.1.2 Women as Property

Another common law origin which was a building-block in the foundation for the marital rape exemption was the idea that a husband owned his wife as chattel. Since a husband could not take what he already owned, a husband was no more capable of raping his wife than an owner was of stealing his own property.

Since women were regarded as property, the common law treated rape not as a crime against women, but rather as a violation of a man’s property interest. The rape laws were concerned with protecting a husband’s property interest in his wife’s fidelity, and a father’s interest in his daughter’s virginity. [24]

4.1.3 Marital Unity

The final common law rationale for the marital rape exemption was that, upon marriage, the wife’s identity merged into the existence of her husband. In 1765, Blackstone stated “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 that of the husband; under whose wing, protection and cover, she performs everything….” [25] .

This became known as the marital unities doctrine, which provided that a woman could not own property, make contracts, or take part in litigation. This doctrine made the rape of a woman by her husband a legal impossibility since a man could not rape ‘himself’’. [26]

4.2 Modern Justifications

In addition to the traditional justifications, as discussed above, the following modern justifications have also arisen.

4.2.1 Not as Serious as Non-Marital Rape

It has been suggested that marital-rape is not as serious a crime as non-marital rape and is not common. But a survey conducted by the Joint Women Programme, an NGO found, one out of seven married women had been raped by their husband at least once, and hence the frequency points out otherwise.

4.2.2 Impossible to Prove

Defendants of the exemption to marital-rape have also pointed out that marital-rape would be a crime so personal in nature that it would be difficult to prove. However, crimes such as treason and incest also require a great degree of proof, and this hasn’t meant that the law should overlook their criminality. And also, The Protection of Women from Domestic Violence Act, 2005 lists out crimes, otherwise personal in nature, as punishable. Thus such a justification to not provide for marital rape is unjust.

4.2.3 Possible Abuse for Ulterior Purpose

Also provided as a justification to the exemption to marital rape is that women would incriminate their husbands for ulterior purposes. Though it is a comparatively reasonable justification as has been witnessed in the cases relating to Dowry, where misuse of sec. 498(A) of the Indian Penal Code, 1860 but the legal framework is designed to identify false claims, and hence abuse cannot be speculated unless legislation for marital rape is put into force

4.2.4 Sacred Institution of Marriage

The intervention that law should not involve itself in the sacred institution of marriage is a bad justification. In today’s age of personal laws, when divorce and separation are approachable through the court of law, there goes without a say that this justification stands void. Also, the interference of law is less detrimental to a marriage where non-consensual sex is already causing damage- as the guardian of the right to life, the law has a valid interest in addressing violent sexual acts, and therefore, its ‘interference’ in dealing with marital rape is entirely justified.

4.3 Position in Other Countries

All though the above arguments of Common Law have long been thwarted in most legal systems, there still is profound support for the said arguments of the exemption to husbands in the Indian legal scenario, case being the rejection by the Law Commission of India in its 172nd Report on the Review of Rape Laws (March 2000) wherein it rejected the suggestion by the NGO ‘Sakshi’ to remove the exemption clause for husbands under sec. 175 IPC (which will be discussed by the researcher in the next section) stating that doing so would “amount to excessive interference with the marital relationship” [27] , and it is hence so that marital rape is yet to be recognized in India to be a criminal offence (civil remedy is, though, laid down under the Protection Of Women From Domestic Violence Act, 2005 and will be discussed later.)

However, countries, around the world have broken off the taboo and have abolished Marital Rape by means of criminalizing the act. The definition of rape has been changed by many countries, around the world, to include in its ambit the vicious Marital Rape-it is a crime in all 50 American States, 3 Australian States, and the countries of New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Also, India’s neighbor, Nepal – the landmark ruling issued in May 2002 was a result of a petition filed by the Forum for Women, Law and Development (FWLD), a women’s right organization in Nepal. [28] The 15-page decision declared that marital sex without a wife’s consent constitutes rape.

It also said that religious texts do not condone men who rape their wives. The court added that Hinduism stresses conjugal harmony based on mutual understanding between husband and wife. Nepal’s current rape law states that charges of rape can be filed against a man, not a husband, who has had sexual intercourse with a woman under 16, with or without her consent, or who has had forced sex with a woman over the age of 16. Men found guilty face prison sentences between six to ten years for rape of girls below 14 years of age and between three to five years for girls and women over 14.

5. CONCLUSION

While getting married under any religion, may it be Hinduism, Christianity, Islam or any other religion practiced across the nation, certain vows are exchanged- about trusting each other, living for each other with respect protecting each other’s dignity and never compromising on the sanctity of marriage. Marriage is not just an institution, it is solemnizing of coming together of two persons. And under these circumstances, protecting the interest of the parties to a marriage is imperative.

Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury. Medical evidence proves that rape has severe and long lasting consequences for women.

Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue, vomiting

Broken bones, black eyes, bloody noses etc.

Anxiety, shock, intense fear, depression and suicidal thoughts.

Gynecological effects include miscarriage, still-births, bladder infections, STDs and infertility.

Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy problems, negative self-image and sexual dysfunction.

Research has also indicated that marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence. [29]

In not providing for divorce laws in the event of rape within marriages, the law is lacking, and must be amended. Additionally the belief that women would prefer to remain silent than go public with the story of sexual assault by her husband affords no reason for adhering to the exemption.

Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society. It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective of the fact as to whether such recognition bears the desired fruits. Complaints against marital rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.

The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honor of the women must be vindicated. The fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women as well as to value and preserve the rich heritage of our composite culture is pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control.

The researcher humbly submits that the current provisions creating an exemption for marital rape, either as a ground for either criminal punishment or as a ground for divorce, needs a review in view of the seriousness of this matter- this matter must be dealt in the light of it being a heinous crime against women and also as a crime as to