" The husband cannot be guilty of rape committed
by himself upon his lawful wife, for by their mutual consent and contract, the
wife hath given up herself this kind unto her husband which she cannot
retract."
- Sir
Matthew Hale Chief Justice in !7th Century England.
He asserted that, upon
marriage, the wife automatically hands over her legal person to the husband and
consents to all sexual acts, which cannot be retracted at any later date for no
reason whatsoever. He introduced within the marriage, a notion of 'implied
consent' that started at the time of the marriage and continued for the entire
course of the marriage, and such consent was deemed irrevocable by Lord Hale.
This established that once married, a woman does not have the right to refuse
sex with her husband. Due to construction of sex as a woman's duty within a
marriage, there is always a presumption of her consent.
Marital Rape refers to
unwanted intercourse by a man with his wife obtained by force or physical
violence, or when she is unable to give consent. Marital rape could be by the
use of force only, a battering rape or a sadistic/obsessive rape. It is a
non-consensual act of violent perversion by a husband against the wife where
she is physically and sexually abused.
Rape is the fourth most
common crime in India. According to the National Crime Records Bureau 2013
annual report, 24,923rape cases were reported across India in 2012. Out of
these, 24,470 were committed by someone known to the victim (98% of the cases)
India has been
characterized as one of the "countries with the lowest per capita rates of
rape".The National Crime Records Bureau of India suggests a reported rape
rate of 2 per 100,000 people, much lower than reported rape incidence rate
statistics for many nations tracked by the United Nations. A majority of rape
cases in India, as elsewhere in the world, are never reported.
According to 2012
statistics, New Delhi has the highest raw number of rape reports among Indian
cities, while Jabalpur has the highest per capita rate of rape reports. Several
rape cases in India received widespread media attention and triggered protests
since 2001 This led the Government of India to reform its penal code for crimes
of rape and sexual assault.
Concept of marital rape
cannot be applied in India as marriage is treated as a sacrament or sacred as
per mindset of the Indian society, government said on Wednesday.
"It is considered
that the concept of marital rape, as understood internationally, cannot be
suitably applied in the Indian context due to various factors, including level
of education, illiteracy, poverty, myriad social customs and values, religious
beliefs, mindset of the society to treat the marriage as a sacrament,"
Minister of State for Home, Haribhai Parthibhai Chaudhary said.
He was replying to a
written question of DMK MP Kanimozhi in Rajya Sabha.
Kanimozhi had asked the
Home Ministry whether Government will bring a bill to amend the IPC to remove
the exception of marital rape from the definition of rape; and whether it is a
fact that UN Committee on Elimination of Discrimination against women has
recommended to India to criminalise marital rape.
She had also said that
according to United Nations Population Fund that 75 per cent of the married
women in India were subjected to marital rape and whether government has taken
cognisance of the fact.
Chaudhary said the
Ministry of External Affairs and Ministry of Women and Child Development have
reported that UN Committee on Elimination of Discrimination against Women has
recommended to India to criminalise marital rape.
"The Law Commission
of India, while making its 172nd Report on Review of Rape Laws did not
recommend criminalisation of marital rape by amending the exception to Section
375 of the Indian Penal Code and hence presently there is no proposal to bring
any amendment to the IPC in this regard," the Minister said.
Supreme court has
delivered a judgement on rape of wife by her husband and ruled it is not a
punishable offence. Commenting on that judgement a minister told, it is a right
decision in Indian context because marriage is a solemn sanskar . The exact
word is used ' Pavitra Sarkar. ' Marriage comes under the sixteen sanskaars of
Hindu religion. Agree. But it has some other status in different religion and
social orders. In Islam and Christianity it is a contract. A contract is a
contract with consent of the mutual parties. It can be dissolved by consen too.
But in Muslim marriage there is a theory of triple talaq, but that too has
always raise some controversies. In Hindu marriage, there was no concept of
divorce. I don't know why this provision is left, but it is lacking there. When
Hindu marriage act codified the provision of divorce is included in some
circumstances. But it is not as easy as in other social orders.
The pavitra sanskaar has
become a fragmented texture. During my service days, I always found many newly
married complainants in my office in connection with marital disputes. Sec 498
A which deals with the domestic violence is the most abused provision of IPC
and sometimes it becomes as a tool of harassment and extortion of in laws. The
pavitra sanskar is losing its sheen.
What is Rape ? Rape is a
forced sexual intercourse without consent. Suppose a husband in a drunken state
or otherwise indulges in a forceful sexual intercourse without the consent of
his wife, what will you call it ? Rape ? Or any other tem ? The word rape you
will not accept, I can understand , then please use some other word. But plz
think over it. Sex has a purpose and the joy is the nucleus of sex. If someone
is not giving her consent, for sex, and that very sex is forcefully imposed on
her, will it not brutal and inhuman to her ? Will the lady will not feel the
hurt and agony of the forceful sexual act ? Afterall rape also gives such
brutal and inhuman hurt and agony.
While right to privacy
is not mentioned in the Indian Constitution, the Supreme Court in a series of
cases has recognized that a right of privacy is constitutionally protected
under Article 21. The right of privacy under Article 21 includes a right to be
left alone. Any form of forceful sexual intercourse violates the right of
privacy. It is submitted that the doctrine of marital exemption to rape
violates a married woman's right to privacy by forcing her to enter into a
sexual relationship against her wishes.
The final version of
section 375 of the Indian Penal Code, which emerged after deliberations in the
Select Committee, is a crystallized form of Clause 359 of the Macaulay's Draft
Penal Code. The provision of rape in the Indian Penal Code (IPC) echoes archaic
sentiments, mentioned as its exception clause- "Sexual intercourse by man
with his own wife, the wife not being under 15 years of age, is not rape."
Section 376 of IPC
provides punishment for rape. According to the section, the rapist should be
punished with imprisonment of either description for a term which shall not be
less than 7 years but which may extend to life or for a term extending up to 10
years and shall also be liable to fine unless the woman raped is his own wife.
and is not under 12 years of age, in which case, he shall be punished with
imprisonment of either description for a term which may extend to 2 years with
fine or with both.
The man is to be
punished if the wife is less than 12 years of age, if she is between 12 to 15
years, an offence is committed, however, less serious, attracting milder
punishment. Once, the age crosses 15, there is no legal protection accorded to
the wife, in direct contravention of human rights regulations.
What is even more
ironocal that these are the same laws which provide for the legal age of
consent for marriage to be 18. But when it comes to protecting women from
sexual abuse, there is no remedy the woman has in a marriage if she is above
15.
As per the Indian Penal
Code, the instances wherein the husband can be criminally prosecuted for an
offence of marital rape are as under:
1. When the wife is
between 12 - 15 years of age, offence punishable with imprisonment upto 2 years
or fine, or both;
2. When the wife is
below 12 years of age, offence punishable with imprisonment of either
description for a term which shall not be less than 7 years but which may
extend to life or for a term extending up to 10 years and shall also be liable
to fine.
3. Rape of a judicially
separated wife, offence punishable with imprisonment upto 2 years and fine;
4. Rape of wife of above
15 years in age is not punishable.
In 2005, the Protection
of Women from Domestic Violence Act, 2005 was passed which although did not
consider marital rape as a crime, did consider it as a form of domestic
violence. Under this Act, if a woman has undergone marital rape, she can go to
the court and obtain judicial separation from her husband. This is only a
piecemeal legislation and much more needs to be done by the Parliament in
regard to marital rape.
The basic argument which
is advanced in favour of these so-called 'laws' is that consent to marry in
itself encompasses a consent to engage into sexual activity. But, an implied
consent to engage into sexual activity does not mean consent to being inflicted
with sexual violence. It is often felt that as in sadomasochistic sexual acts,
in marital rape women are presumed to have consented to the violence. However
Rape and sex cannot be distinguished on the basis of violence alone.
A discussion is going on
my post regarding the judgement of Supreme Court on marital rape. The element
of force or to compel without consent to do sex is the basis of rape. In IPC
the beating of wife, harassing a wife are cognizable offences. A domestic
violence act has also been introduced to stop these excesses in 2005. Many
cases are pending in the courts regarding matrimonial disputes and domestic
violences. But these acts and laws has not said any word about the forcefully
sex by a husband with the wife. Why ? Why not the theory of pavitra sanskaar
has emerged at the time of drafting the domestic violence bill. ?
Why not a consensus has
been achieved on this issue from the different walks of society and women's
organisation ?
We uttered word pious so
many times that it gives a sense of hippocracy to us. Someone told it is a
sngam of soul. I don't know, it is said in a lighter mood or it is true. But
where the pavitra sanskaar vanished when a wife is continuously being harassed
by the husband and their in laws ? Law is to protect everyone from the brutal
and inhuman excesses. The sex without consent is also a inhuman excess. So a
law is necessary like rape laws, to prevent such types of situations. The
punishment may be not as harsh as 376 IPC.
Wife is not a property.
There are eight types of marriages are permitted in Hindu scriptures. Last four
are condemned and first four are accepted. The popular is brahm vivaah. The
mantras in sapt padee recited in ceremony are very rightly explains the life
long companionship. They don't permit husband to treat his wife as a property.
Wife is not a property, but being the patriarchal social system and weak gender
the husband most of the times treat her as a personal property. But the
education, women empowerment and modern laws have changed the scene. Women are
fighting for their rights, and they are confident to find there right place in
social system. Time is changing and so the awareness is increasng.
