RIGHTS UNINTERRUPTED: A STUDY OF MARITAL RAPE IN CONSTITUTIONAL
– Poorvika Shanmugauel382
The declaration of right to privacy as an element of human dignity recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. This clearly lays down path for criminalising non-consensual sexual intercourse of spouse in marital relationship as women have right over their own body and marriages does not signal generalised consent to sexual intercourse with spouse. It is necessary to repeal sec 375(2) of Indian Penal Code as it is draconian law violating the right to life and personal liberty under Article 21 and right to free consent as provided under Article 19 and right to equality as provided under Article 14 of the constitution. Every woman has a right over her own body as right to privacy is inviolable right guaranteed by the constitution. A research conducted by RICE institute shows that numbers of women sexually assaulted by their husbands are 40 times the number of women who suffer such violence from others. The plea to criminalise marital rape was rejected by the centre on various grounds that belong to victorian-era. This article aims to analyse the concept of marital rape in the light of the rights guaranteed by the constitution of India and tries to study the notion of patriarchy which encourages violence against women that is deeply rooted in the society rationalised by both men and women.
Rape is the most heinous form of crime inflicted on women to exert control and to demonstrate a sense of power over them by subjecting them to pain and humiliation. The physiological and the psychological aspects of rape has been clearly put in words by court of appeal in People vs. Liberta383 as follows:
“Rape is not simply a sexual act to which one party does not consent rather it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm”
Though rape is penalized under Indian penal code384 marital rape has been long exempted from criminal justice system of India. By exempting marital rape from the purview of criminal justice system the state is trying to normalize the violence exerted on women as the capacity to say no to conjugal relation is not recognized as a legal right in Indian legal system. The Supreme Court’s decision to criminalise the sexual intercourse between man and his minor wife while refraining from adjudicating on the larger issue of marital rape shows the attitude of the judicial system being oblivious to women’s social realities.
In backdrop of male chauvinistic and gender biased criminal legal system in India it is peremptory to scrutinize the rape laws in India. The article aims to explore the concept of spousal exemption from rape laws in Indian rape laws and its implication on the victims silenced due to inadequate redressal mechanism in the Indian judicial system and the article also examines the history of the spousal exemption for rape in common law and its effect on the Indian penal code right from Macaulay’s period385. The note also tries to review the statutory status of marital rape exemption and critically analyses the relation of marital rape exemption and women’s constitutional rights.
MARITAL EXEMPTION: – A COMMON LAW OXYMORON
Ideas concerning women contained in the law were shaped by medieval and early English societies. Whether discussing American, Australian, Canadian or Irish law, husbands were exempted from criminal prosecution for the rape of their wives. The wives were unable to consent or refuse consent.386 Although marital exemption was not explicit in earlier statues, an 1852 treatise stated that a man could not be guilty of raping his wife387.
The archaic notion of marital law exemption is primarily based on Lord Hale’s statement as follows,
“The husband cannot be guilty of raping his 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;”388 Hence consent doctrine has been followed by both English and American courts for a long period time.389 Once consent has been given by the wife at the altar of marriage it cannot be revoked and the only remedy to refuse consent for women is to lay her for divorce or decree of separation.
Similarly, a divorce or decree of separation destroys the defence because it revokes the wife’s matrimonial consent and “contract” to engage in sexual intercourse. 390 Spousal rape is still treated as concept that is ill-suited to marriage. The secondary notion concerned with marital exemption of rape is treatment of wife as a property by her husband; society viewed a wife as her husband’s property or chattel.391 According to common law of coverture, a wife was deemed to have consented at the time of marriage to have intercourse with her husband at his whim. Hence, Lawrence freedman puts it as 392“essentially husband and wife were one flesh, but the man was the owner of that flesh”.
Marriage was proxy for unlimited male sexual access; David Fienkelhner and Kerstiyolo concluded that, “the marriage license can indeed be called license to rape.”393 The patriarchal notion of marital exemption propounded by Hale was rejected by the court in R v. R394 decided by Justice Owen who rejected Hales statement as being made at a time when marriage was indissoluble. The house of Lord unanimously declared that marital exemption had no place in modern law and abolished it. Lord Keith went on to say that the status of married women had changed since Hale’s proposition.
“Marriage was in modern times regarded as a partnership of equals and no longer one in which the wife was to be subservient chattel of the husband”395.
Hence corresponding amendment to statutory law was made through Section 147 of the criminal justice and public order Act, 1994396. The common law principle of marital rape exemption has also been abolished in Australia following the judgement in R v. L397 stating that “if it was ever the common law that by marriage a wife gave irrevocable consents to sexual intercourse by her husband it is no longer common law”. Similarly the marital exemption has become a crime in all fifty states in United States of America, in People vs.Liberta,398 the court declared that
“We find that there is no rational basis for distinguishing between marital rape and non-marital rape. The various rationales which have been asserted in defence of the exemption are either based upon archaic notions about the consent and property rights incident to marriage are simply unable to withstand even the slightest scrutiny we therefore declare the marital exemption for rape in NewYork statute to be unconstitutional.”
In Canada marital rape was declared as crime in the year 1983.399 Marital rape has also been declared a crime in Scotland, South Ireland, Israel, France, Sweden, Denmark, Norway, Poland, Soviet Union among 52 countries that have legislation to make marital rape a criminal offence400 where India is not one.
THE INJUSTICE OF MARITAL EXEMPTION IN INDIA
The rape laws in India are based on the ancient, victorian perspectives on women hence the influence of T.B Macaulay becomes imperative in the interpretation of criminal and penal policies relating to rape. Clauses 359 and 360 of the Macaulay’s draft penal code that culminated into 375 and 376 of IPC dealt with rape and punishment of rape respectively. 401 Rape in Macaulay’s draft was defined as sexual intercourse with women under following circumstances
First– against her will;
Secondly– without her consent while she is insensible;
Thirdly– with her consent, when her consent has been obtained by putting her in fear of death, or of hurt;
Fourthly– with her consent, when the man knows that her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married.;
Lastly-with or without her consent, when she is under nine 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 is no case rape402
The final versions of sections 375 and 376 is based on the Macaulay’s draft penal based on only different exemption that read: ‘sexual intercourse by a man with his wife, the wife not being under ten years of age, is not rape.’403 Hence the foundation of rape laws in Indian Penal Code lies on the perception that the right of women to consent to sexual intercourse is foregone at the altar of marriage and she should submit herself according to the needs of her husband thereby treating women as a mere object of sexual gratification.
Maculian perception of marital rape was brought under the purview of fifth law commission of India404 and commented on marital rape that sexual intercourse by a husband with his own wife against her will or without her consent could not be called rape in technical sense. Subsequently the ninth law commission of India405did not provide any insight into the familial and patriarchal ideologies attached to marital rape per se or the husband who remains unconcerned about the will or consent of his wife for sexual intercourse.
Considering the recommendations based on ninth law commission406 criminal law (amendment) bill 1980 was introduced in the parliament which excluded the women living separately from her husband under a decree of judicial separation or by mutual agreement from the scope of marital exemption to rape. Hence the bill was sent to a joint parliamentary committee whose report stated that407
“The committee feels that in a case where the husband is separated under the decree of judicial separation there is still a possibility of reconciliation, the committee is of opinion that intercourse by the husband with his wife under such circumstances should be treated as illicit sexual intercourse”
The joint committee also recommended a lesser punishment of two years of imprisonment for the rape committed during judicial separation which was accepted by the parliament and criminal law (amendment) Act was passed in the year 1983. Even in parliamentary debates of 1983 child, marriage was considered as a Indian problem but whereas marital rape is considered as not an Indian problem. In words of Moolchand Daga408
“The issue of husband wife rape is entirely new how can we bring this provision as rape looking at our culture.”
The former law minister Ram Jethmalani argued that the intercourse between the man and his wife should be excluded completely from the ambit of rape laws. In 2000, Sakshi an NGO was directed by the apex court to submit its recommendation to the fifteen law commission of India,409 which recommended to treat rape by husband with his wife or separated wife to be a offence similar or in par with the sexual violence committed by any other men as such exemption is arbitrary and discriminatory; But the recommendations made by Sakshi were rejected and the law commission refused to eliminate marital rape exemption on the ground that it may amount to excessive interference within the marital relationship.
Hence, this proves that Indian judicial mechanism still suffers from the colonial hangover of marital exemption to rape that causes a grave violation to human rights of women. The major amendment in rape laws in India took place in woke of Nirbhaya rape case410 based on the recommendations made by Verma committee411 headed by former justice Verma which stated that
“Marital rape should not be recognized as a lesser crime when compared to other forms of rape”412
It also stressed that the legal prohibition on marital rape should be accompanied by changes in the attitudes of prosecutors, police officers and society and recommended widespread measures to raise awareness of women’s rights. But the recommendations of Verma committee regarding marital rape were rejected by the parliament and the amendment Act in 2013413 was passed without the elimination of spousal rape exemption from Indian Penal Code. Indian legislature stays indifferent towards a gross and draconian violation of human rights inflicted on women by supporting the rationales propounding exemption to marital rape where the common law trends are marching towards abolishing this inhuman practice.
THE LEGAL MESSAGE
Under Indian law, exception to Section 375 embodies that when a women is married and is not less than 15 years of age then it would not amount to rape.414 Courts and society still refuses to acknowledge that the rape by spouse is same as the criminal violation done by the stranger. The courts in India has turned a blind eye to the crime of marital rape since the colonial period, one of the notable cases in this terms of marital rape prior Independence was Queen Empress v. Haree Mohan Mythee,415 a tragic story of phulmoneedasee, who was eleven years old who died of bleeding caused by ruptured vagina as a result of rape committed by her husband.
In this case the court declared that the husband did not have the right to enjoy the person of his wife without regard to the question of safety of her. As per this decision the only circumstances in which the court can interfere in husbands absolute right over his wives body is when it becomes extremely dangerous followed by consequences of death. Similarly in Emperor v. Sahumehrab416 case where the husband was convicted under Sec 304-A417 of Indian penal code for causing death of his child wife by a rash and negligent act of sexual intercourse while the girl was above 12 years of age and has not attained puberty.
The position of marital rape in Indian courts is still influenced by societal and gender biases as marital rape stems from deeply entrenched traditions and socio-legal customs of Indian society. The recent debate in marital rape exemption is sparked by the public Interest Litigations filed by RTI foundation.
The All India Democratic Women Association 418 challenging the constitutionality of Section 375 of IPC that it discriminated against married women being sexually assaulted by their husband as it violates Article 14, 15, 19 and 21 of the constitution. One of the petitioners has challenged the provisions of Cr.P.C which are to be read with Section 376 of IPC on the ground that differential procedure and different punishment is prescribed which is arbitrary and unconstitutional.419
The Delhi High court also allowed an intervention petition by NGO called Men’s welfare trust420 that claims that men become vulnerable to victimization at the hands of women, who file false cases of sexual harassment, 478- A of IPC and domestic violence etc. and claimed that adequate protection is given to women under domestic violence act.421
In counter response to the case the centre filed an affidavit before the High Court of Delhi422 stating that “it is to be ensured adequately that the marital rape does not become a phenomenon which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands” and it further went on to state that “This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mind-set of the society, vast diversity, poverty etc. and these should be carefully considered before criminalising marital rape”423
The centre’s approach towards a widespread social injustice seems to be obnoxious and unpalatable. Denying a woman her bodily autonomy by exempting marital rape under the name of stabilising the institution of marriage is nothing less than slavery. Moreover when a woman is subjected to sexual violence in marriage the husband who is a protector of his wife become a perpetrator against her. Hence it is high time for the centre to eliminate such patriarchal notions and criminalise marital rape.
Subsequently, the recent ruling of the court in Independent thought v. Union of India424 the supreme court has criminalised the sexual intercourse of a man with his minor wife and held that the exemption was contrary to the philosophy and ethos of Article 15(3)425 of the constitution as well as Article 21 of the Indian constitution and commitment in international conventions426 while refraining from discussing the issue of marital rape exemption above the age of consent.
This judgement serves as a ray of hope for the marital exemption in rape where the court took an activist stand by criminalising the rape of wife below 18 years of age which was otherwise would have been never addressed by the legislature due to the deeply rooted societal biases while it is a little disappointment that the court failed to address the wider problem of marital rape.
As rape within household are placed in a unique situation where the economic and emotional barriers prevent the victim from leaving their husband and there is so much shame, anger and stigma attached to rape within marriage in Indian society. Hence a specific framework should be built by the legislature and judiciary to address the concerns of marital rape victims.
CONSTITUTIONAL ASPECTS OF MARITAL RAPE
Rape has been held to be a violation of a person’s Fundamental Right guaranteed under Art 21. “Right to life” means “the right to live with human dignity”. “Right to ‘life’ would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth living”.427
The Supreme Court has also declared rape as a crime against human dignity in Narendrakumar v. State (NCT of Delhi)428 and stated
“Rape is a crime against basic human rights and is violate of the victim’s most cherished of the fundamental Rights, namely, the Right to life contains in Art. 21. Even in cases where there is some material to show that the prosecutrix was habituated to sexual intercourse was habituated to sexual intercourse, no interference of the victim being a woman of ‘easy virtue’ or a woman of ‘loose moral character’ can be drawn”. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
Rape is a hideous crime that can undermines the fundamental rights of the human and inhuman principle violative of fundamental rights of the human being. Sexual violence is a violation of the basic human rights “to live with sexual dignity and without fear” where violence can take number of forms; eve teasing, molestation, rape within or outside marriage429. The evil of marital rape is still hidden behind the sacrosanct of marriage.
Marital rape is one of the highly underreported crimes in India due to the sacramental and personal nature of marriage as perceived by the Indian society. The victim herself in marital rape fails to perceive herself as a victim as marital rape is normalized by the society in terms of honour and family pride. Hence whenever one tries to raise the questions that have relevance to women’s lives, she is remained gently that it is best not to adopt too individualistic approach towards rights and that family itself would be put to test of survival if attempts are made to infuse constitutional values into it430.
The concept of spousal rape is violative of Article 21 of the Indian constitution; it violates her right to bodily integrity by refusing her right to refuse sexual intercourse with her husband. Men and women should be perceived as equals in a marital relationship and consent must be obtained each time afresh and sexual intercourse should not be perceived as a wifely duty imposed on women as it defeats the fundamental principles of dignity and self-determination of women.
In recommendation made by CEDAW committee431 it urged that the state party to widen the definition of rape in IPC to reflect the realities of sexual abuse experienced by women and to remove exemption for marital rape from the definition of rape. After the criminal amendment act was passed by Indian parliament the committee further urge “ to amend the criminal law (amendment) act ensuring that marital rape is defined as a criminal offence as requested by the committee in its previous concluding observations432
Marital rape can have distinct health consequences harbouring right to life implications such as miscarriages, fistulas, bladder infections, and potential contraction of sexually transmitted disease including HIV that has fatal outcomes.433 The fear of domestic violence also forces women to accede to unwanted sexual demand of their husbands.
The right to life is a fundamental right guaranteed by all human right treaties and a part of international law. Hence marital rape poses a severe threat to right to life. As a fundamental human rights norm, the legal protection of the right to life demands a criminal remedy for effective deterrence and prosecution of marital rape.434 Hence it is the need of the hour to declare the exemption 2 of sec 375 of IPC435 to be unconstitutional.
RIGHT TO PRIVACY
According to 2014 report by Aashish Gupta of Rice Institute, found that women are 40 times more likely to be sexually assaulted by their husband than a stranger. Gupta concluded that less than 1 present of sexual assaults within marriage are reported to police 436 . This shows the obstacles faced by women in reporting crimes. In justice K S Puttaswamy (retd) v. Union of India right to privacy was held as an absolute right, privacy protects the essential aspects of our selfhood.
Thus marital exemption to rape interferes with these aspects of a women’s life and, consequently, her right to privacy. Right of privacy in the individual decisions regarding the fundamental decision is separate from the family affairs, hence exempting marital rape as an act that destabilises marriage is violative of right to privacy of an individual and when a man forces himself on a women the basic aspects of trust and love in marriage is broken and the victims physical and mental wellbeing is violated by her own husband.
The interests threatened by marital rape are the women’s interest in autonomous control over intimacies of her body and life. To suggest that the marital rape exemption protects the privacy of the marital relationship obscures the notion of privacy in several respects. Such a position rests on the fallacious premises that the family or marital unit provides protection for the privacy interests of the individual. But this is not true where, within an intimate relationship, one person’s privacy rights are being violated by the other person as in case of forcible sexual assaults437.
Hence in light of the violence inflicted on women through ages it has become the need of the hour to amend the Indian penal code by eliminating the marital exemption to rape438 which is violative of right to life, personal liberty and privacy of an individual to ensure the safety and wellbeing of women in India.
The reforms in Indian criminal system post Independent thought v. Union of India has gained momentum to smash the pro-male and gender biased sexual morals inflicted on Indian women since time immemorial. Thus the legislature in millennial age should replace the colonial and patriarchal rape laws and opt for gender neutral and progressive laws that empower women. The current legal scenario in one where there is no law to criminalise the most hideous crime against women in a marital home.
Hence it is necessary to treat marital rape as a threat to women’s integrity and treating marital rape as a crime requires more than legislation. Public awareness should be adequate in order to address the issue and a supportive network of agencies and organisation to assist in the treatment of victims and court judges that will legitimize marital rape claims and send a message that marital rape will not be tolerated.439
In words of Samdra Fredman of university of oxford in her report submitted to verma committee440
“Training and awareness programme should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of wife”.
Only by criminalising marital rape and developing a gender neutral and progressive framework to address the issues of marital rape by implementing very intense public education program to take down patriarchy that brings a deep social change where women should be perceived as a full individual with rights not a mere object or property of men, the society as a whole can march towards a welfare state as envisioned in the constitution.