India, which is still a male dominant society and baby girls are mercilessly killed right after birth or even in the mother’s womb, no wonder most women in the country does not want to give birth to a girl child. However, this is not the only reason why we always lie on the lower side of the girls-boys ratio index.
The ever scary environment out in the world and ages old legislation for safety and security of the female community also plays an undefined role in under development of female community.
"Marital Rape or Spousal Rape, though has a modern name, but the concept roots back to British era or even before. An Act of sexual intercourse with spouse without his or her consent is ‘Marital rape’ which is not even considered as Rape in our country. We live in a dominant culture where a man has always been presented as the master and woman as his slave and this harsh picture takes a reality turn when a man and a woman enters into a holy relationship called wedding. Because of the inexplicable perception that marriage gives the husband constant consent for sexual intercourse with spouse, Marital Rape is still not a criminal act in many countries including India."
Though, Sexual intercourse within the marriage is legal, however, engaging in such act not with the will and consent of the Spouse but enforcing it on her or him with physical force or emotional torture is not less than a rape either. Marital rape is generally experienced by the Women but it may not be the case always.
Going back in the History, a girl or a woman has always been considered as a property of his father or his husband rather than an independent human being having its existence. Taking this ideology into consideration, historically, rape or sexual assault to a woman had been seen as a crime committed upon a property of a man be it her father or her husband and not a crime against the victim itself. ‘Matthew Hale’, an influential English barrister, judge and jurist in the history of Britain in the 16th Century, in his manuscripts which were later published in 1736, had written “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife had given up herself in this kind unto her husband, which she cannot retract“. Throughout the 19th century, English Law or Common Law of England followed Legal Doctrine ‘Coverture’ which simply meant that a Woman’s legal rights and obligations were absorbed by those of her husband upon her marriage. The Doctrine of ‘Coverture’ was described in William Blackstone’s Commentaries on the Laws of England as “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.” Thus, implying that once married, the woman losses all her legal rights or ironically saying she losses her very being and existence, she was nothing more than a property owned by her husband and the husband could no longer be charged with raping one’s spouse as it would mean to have raped oneself.
The Indian Legislation which is mostly based on the English Common Law and formulated under British Rule over India, is no exception to this sick ideology of Woman being a property of his father or his husband and which is evident from many provisions in Indian Legislation, including Section 375 of Indian Panel Code, 1860, concerning rights and obligations of the Women or concerning crime committed against or upon a Woman.
Though, rectifying the grave mistake done for centuries, many of the countries including Canada, South Africa and Australia which criminalized Marital Rape in the year 1983, 1993 and 1976 respectively, have criminalized Marital Rape in the 20th Century as well as at this early stage of 21st Century. However, still there are many countries, including India, who is yet to consider Marital Rape as a crime against the married Woman. India is yet to accept the fact that Sexuality or virginity of a married Woman is not the property of her Husband which can be invaded anytime and without considering the will and consent of the Spouse.
Even the Indian Culture, though with some exceptions, does not consider a girl or a woman anything more than a property which a Father transfers to the husband upon marriage of girl child. Consent of a woman is not even something that a Woman can give as she is not supposed to formulate any consent for anything. Thus, a Woman’s sexuality not being considered as her right rather is seen as part of the larger control that her father transferred to her husband.
Exception 2 provided under Section 375 of the Indian Penal Code (IPC) explicitly exempts Rape committed upon a Woman by her Husband and considers the forced sex in marriages as a crime only when the wife is below age of 15. Thus, marital rape is not a criminal offense under the IPC. In most of the domestic violence cases, married women reports sexual violence or forced sex being its most common form. Its exclusion from the legal spectrum has also ensured that even a case is not registered by the Police. ‘Dilaasha’, a Counseling Centre formed for Women Protection and Development, its domestic violence data shows 60% married women also reported forced sex committed by the Husband.
Said Exception violates the right to equality provided under Article 14 of Constitution of India as it discriminates against married women above the age of 15 by denying them equal protection from rape and sexual harassment as against unmarried Women of the same age. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the Exception creates possibility of victimization of married women for no reason other than them being married while protecting unmarried women from those same acts.
However, one need to be aware of the fact that Exception 2 to Section 375 of the IPC which criminalizes sexual intercourse by a man with his own wife who is below the age of 15 (Fifteen), is contrary to another provision of the same Section which provides that “a man is said to commit rape if he has sexual relations with a woman with or without her consent, when she is under 18 years of age”. So a distinction was created within Section 375 of IPC with regard to the married girl child above the age of 15 but below 18 and unmarried girl child of same age group.
This discrepancy was removed by Apex Court in Writ Petition (Civil) No. 382 of 2013 titled Independent Thought vs UOI & Ors. and pronounced very important rational as “…..keeping in view the sanctity attached to the institution of marriage, it has decided to make a provision in the nature of Exception 2 to Section 375 of Code. This begs the question as to why in this exception the age has been fixed as 15 years and not 18 years. As pointed out earlier, a girl can legally consent to have sex only after she attains the age of 18 years. She could legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet in contracting such child marriage, commit a criminal offence and were liable for punishment under the Prohibition of Child Marriage Act, 2006. In view of this position there was no rationale for fixing the age at 15 years. This age has no nexus with the object sought to be achieved viz., maintaining the sanctity of marriage because by law such a marriage was not legal. Thus, on the one hand legislation has criminalized child marriage as Criminal Offence, it cannot, on the other hand justify classification of girl child married below the age of 18 years on the ground of sanctity of marriage. Therefore, Exception 2 in so far as it relates to girls below 18 years was discriminatory and violates Article 14 of the Constitution.
There being no relief for Married Women above the age of 18 against forceful and non consensual Sexual Intercourse by her husband in the Indian Penal Code, 1860 except such act falling within the ambit of Section 354, 354A to 354 D of the code or Cruelty under Section 498A of IPC and prosecuted accordingly, Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA). The PWDVA, which came into force in 2006, outlaws marital rape. However, it offers only a civil remedy for the offence.
A committee on “Amendments to Criminal Law” chaired by Justice J.S. Verma, in its report dated 23/01/2013, submitted to the then Prime Minister Dr. Manmohan Singh, had strongly recommended, among others, that i) The exception for marital rape be removed ii) The law ought to specify that: a) A marital or other relationship between the perpetrator or victim is not a valid defense against the crimes of rape or sexual violation. However, though the majority of recommendation of the Verma Committee was incorporated, the suggestion to criminalize marital rape failed to find a place in the Criminal Law Amendment Act 2013.
The National Family Health Survey report for the year 2015-16 (Latest) reveals that “31% of ever married Women have experienced physical, sexual or emotional spousal violence. The most common type of spousal violence is physical violence (27%), followed by emotional violence (13%). 6% of ever married women have experienced spousal sexual violence.
How legislation can even imagine differentiating between rights of a Woman in protecting her dignity and self respect from unwarranted or non consensual invasion by any man on the basis of her marital status. This is possible only when the legislator itself have the belief that once married the women and their rights looses their existence or submerges with the husband and no man can invade its own rights.
Though the Author agree that Criminalizing Marital Rape would be a double edged sword as establishing presence of Consent by married Woman would purely depend upon the intellectuality of the particular judge and such law might be used in a wrong way, like many other provisions, by any Women trying to harass her husband on falsified grounds, even then, the number of such incident will always be much lesser than the number of married Women would be benefitted from this.