Introduction
The Indian criminal Justice system complicates things when it comes to the matter with regards to offences dealing with marriages, so as in the case of marital rape. The Penal laws and the criminal justice system contradict themselves, defining rape as a heinous crime as well as a criminal offence but refuse to recognise the existence of marital rape. The legislators and the lawmakers term marriages sacred followed by the Vedas which considers marriage as one of the “sanskaaras” , marriages might be sacred and sacrosanct but the question lies on the fact whether violence is justified within a marriage.
Moreover the denial of the fact that a woman loses her rights over her body after her marriage is a black mark on Article 21 of the Indian constitution which deals with the fundamental rights. In accordance with the Indian constitution and the preamble it not only raises questions upon equality, dignity, integrity of her body but sexual autonomy too ,which needs to be addressed by the so called bureaucrats who frame and safe guard the laws.
Objective
The comprehensive study of the research paper is to find out why India still finds it difficult to criminalize marital rapes.
To identify marital rape as a criminal offence.
Research Questions
What constitutes marital rape and what would constitute non marital rape?
Whether it is possible to declare marital rape as a criminal offence under the frameworks of the Indian laws?
LIST OF CASES
Maneka Gandhi v Union of India AIR 1978 SC 597
Maharastra v Madharkar Narayan AIR 1991 SC 207
Justice Puttuswamy v Union of India 2017 10 SCC 1
Analysis of the rape laws in India
The Indian Penal Code takes into consideration actus Reus, and mense rea while recognizing any cognizable crime , actus non facit reum , nisi mens sit reum which means a person cannot be punished for any crime committed by him/her if there is an absence of a guilty mind. The Indian penal code pertaining to the definition of rape considers the presence of both actus Reus and mens rea while advocating Rape as a cognizable offence.
Rape-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 own wife, the wife not being under fifteen years of age, is not rape.
(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and
(b) in the Exception, for the word “fifteen” substitute the word “thirteen[1]
According to IPC section 375 of the mentioned code describes that “ a person is alleged to commit the crime of rape who had a sexual intercourse with a women without her consent , or when the consent has been taken by putting her into such a situation by the fear of death or grievous hurt , or by taking her consent by the reason of unsoundness of mind or either by intoxicating her , in a case where she is unable to understand the nature and consequences of the act so happened ,or either sexual intercourse with a girl who is below the age of sixteen years of age where her consent won’t be recognized as a valid consent . The only exception to this section is sexual intercourse by a man with his legal wife in case if the girl is not less than fifteen years old won’t amount to rape. The criminal justice system of India in short is more gender specific when it comes to define rape as a criminal offence , it too contradicts when it comes to the question of marital rape. It denies the existence of marital rape but it considers rape when a person haves a sexual intercourse with his legally wedded wife who is less than sixteen years old, certain fact raises questions whether rape as a crimes is based on the age of the victim .
Under the section 375 of the Indian penal code states that , sexual intercourse of a man upon his legally wedded wife won’t amount to rape provided the wife should not be less than fifteen years of age.
Role of Judiciary in Identifying Marital Rape
In India marriages are termed to be sacred and sacrosanct, its been referred within the boundaries of law that sexual intercourse between a husband and wife is a conjugal right and one of the marital obligation which needs to be fulfilled is one of the reasons why marital rapes still exits in India.
In the case of Saretha v T. Venkata Subbaih[2] it was observed by the court that , there are certain rights and duties in a marriage that needs to be performed as these are termed as the conjugal rights . certain rights like Right to privacy is not lost upon the performance of marital associations, and relying to the statements by the court it was inferred that there is no such thing as marital rape which exits as well as such nuances cannot be punished as per se.
In another case , where the union government represented on behalf of the wife , the husband in his contention submitted to the Delhi high court that a wife cannot be raped by his husband as Marital rape as any such of any crime is not specifically mentioned in any of the statues or provisions of the Indian laws , unless and until section 375 of the Indian penal code does not widens up its scope , marital rapes will remain unrecognizable in the census of the society. Something’s that is interpreted as marital as per the contention of an individual cannot be referred as a specific definition for one and all, therefore the law needs to be progressive with the time and certain terms needs to be specifically defined in the statues.
Its implied that marriage is an implied form of consent for cohabitation with the husband as inferred through the legislation. The Indian law makers firmly belief that the very focus of the notion decriminalization of marital has the tendency to destroy the institution of marriage . The Indian law defines marriages as a contract between two individuals but any contract that allows one party to harass another party either by mentally or physically must be declared void .
In the recent amendment of the criminal laws the three member committee of Justice J.S Verma recommended various reforms for marital rape . The committee said it is not a valid defence for the crimes like rape or sexual assault, the very fact that the victim and accused are in a intimate relationship or are married to each other does not gives the rights to the husband to take away fundamental rights over her body, such factors must not justify the crimes .
According to section 375 , explanation 2 of the Indian penal code which reads as such
consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates a willingness to participate in the specific sexual act. Thus, to absolve a person of criminal liability, consent must be given freely and it must not be obtained by fraud or by mistake or under a misconception of fact.[3]
It is no one’s dispute that “all sexual acts” will qualify as conjugal assault. The doomsayer ring to “all” is unmissable . As it were non-consensual acts come beneath investigation. There are occurrences of courts denouncing within the nonattendance of restorative prove, and in cases where complaints are brought to the police, weeks, months or along time after commission of an offense. The simple trouble of showing proves cannot be ground for not criminalizing an offence.
But article 21 of the Indian constitution which also includes bodily integrity and personal liberty , article 21 implies that an individual has soulfully all the right to take decision over his/ her body but the very notion that a women looses her rights over her body after her marriage is wrong concept and the nuance that marriage is an implied consent for sexual intercourse with the husband stands as a question mark upon a the fundamental rights of a women .
But in the case of Maneka Gandhi v Union of India[4] , it the court defined the term “personal liberty” and opined that any law which is passed by the legislation go through the rule of golden triangle and any law passed by the law makers must not interfere with fundamental rights of an individual, and must be fair , reasonable and should not be arbitrary.
In the case of Maharastra v Madharkar Narayan [5] it was opined by the jury that the very objective behind Article 21 is “right to life with human dignity” , and every women has the right to sexual privacy .
But in the case of Justice K.S Puttuswamy v Union of India[6] it was noted by the court , it is high time that the Indian society stop relying upon the arguments of privacy with regards to a women’s right and the nation must focus on the point of Personal autonomy of a women whenever there is question with regards to a women’s right.
On 2017 a PIL was filed by RTI NGO challenging the provisions of section 375 of IPC contending section 375 of IPC must not an arbitrary question on a women’s right over her own body and forcible sexual intercourse of a man with his wife must be considered as rape . The appointed judges for this case were chief Justice Gitta Mittal and Chief Justice Hari Shankar , who while hearing the PIL opined that issues like marital rape are not simple matter these are great matter of concerns , until and unless the constitution does not provides any such laws against marital rape its going to contribute in promoting the rape culture in a civilized society.
Further the government of India filed an affidavit contending before the honorable court that Marital rape must not become an easy weapon for the married women to harass their husbands and highlighted the point that such laws should not be a vulnerable tool to destabilize the marriages.
The legislation while
arguing on the concerned matter highlighted few points that, the law treats
married women and unmarried women differently when it comes to the matter of
rape laws. While it is known that rape as a crime is a violation of a women’s
right under Article 21 still it is declared as a reasonable classification
under article 14 just to maintain the institution of marriage . Moreover , when
the Indian laws recognizes rapes within the every degree of relationship then
why it faces blanks answering rapes by husbands and this fails as a legal
defense or an applicable exception to the crime.
Comparative Study of other Jurisdictions outside India where marital rape has been declared as a criminal offence
All over the world there are 52 countries which legally recognizes marital rape as an criminal offence yet the Indian law fails to accept the existence of marital rape as such . Its high time that we should look outside the Indian jurisdiction and analyse how all these 52 countries have termed this offence as an criminal offence and what are punishments for such a heinous crime.
USA
Almost in every legislation , rapes within in a marriage is an exception but around 1993 when people were growing more concerned about women’s right and activist were taking up the women’s fight for equality and rights they raised their voice against marital rapes . The district court of Colombia passed a law against marital rape and within a year this law was applicable in all over the state in USA.
U.K
The exception of marital rape was removed by the appellant committee in England and wale in 1991 in the case of R v R The exclusion had never been a run the show of statute, having to begin with been declared in 1736 in Matthew Hale’s History of the Supplications of the Crown, where Sound expressed: But the spouse cannot be blameworthy of a assault committed by himself upon his legal spouse, for by their shared marital assent and contract the spouse hath given up herself in this kind unto her spouse which she cannot withdraw. Comparing alteration to the statutory law was made through Area 147 of the Criminal Equity and Open Public Orders Act, 1994. This judgment was moreover confirmed by the European Court of Human Rights within the choice of SW v. UK.
Most of the jurisdiction around the world including Nepal has already criminalized Marital rape but India still lags behind in amending its laws. A country like Nepal which has just recently abolished monarchy, the supreme court of Nepal has ruled that forced sex within marriage constitutes marital rape.[7]
SUGGESTIONS
If we turn down the pages of History it has been proved that India has criminalized many practically cultural practices like sati, Dowry etc which used to stand as a crime against humanity at a certain point of time so it is not very difficult for India to put an end to such an heinous crime but for that the very first thing that we must do is examine light of the existing area for rape, i.e. section 375 of the IPC. Our primary point in this section is to grant a draft enactment that will guarantee that the complexities of assent, burden of verification and prove are taken into consideration.
Up next our law must
recognize as well as specify that marriages can not be held as an valid
defence, as recommended by the J. verma committee the removal of the exception
from the section 375 is not sufficient but it is the very urgent need that the
law seeks at this point of time is to cover up all the necessary circumstances
under the section 375.
CONCLUSION
The wrangle about of Marital rape is significant in setting up substantive uniformity for married ladies who are something else consigned in open and lawful talk to the limits of their domestic. It is vital to perceive that this is often a major lacuna in criminal law at present defeating the protected arrangements that give ladies uniformity and independence. As we have continually outlined, there have been hardened political, legitimate and social contentions against criminalization.
Moreover its high time that the Indian laws must recognize this crime against humanity and women must not be subject to sexual assaults or violence. If the Indian culture presumes to one marriage of the greatest “sanskaaras” and something sacred then violence within the sanctity of a marriage must not be justified.
The very notion of the
paper is to highlight certain laws like section 375 must not obstruct and be
arbitrary to the fundamental rights of
women. Relationship of husband and wife between the accused and the woman will
not be a defence.
[1] Section 375 of the Indian Penal code
[2] Saretha v T. Venkata Subbaih AIR 1983 AP 356
[3] Section 375, explanation 2 of IPC (meaning of the word consent)
[4] Maneka Gandhi v Union of India AIR 1978 SC 597
[5] Maharastra v Madharkar Narayan AIR 1991 SC 207
[6] Justice Puttuswamy v Union of India 2017 10 SCC 1
[7] http://www.i siswomen.org/womenet/lists/we/archive/
All about Law! 