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Marital Rape : The Indian Viewpoint

Dipa Dube

John and Greta Rideout were in their early twenties. They were married for 21/2 years and had a daughter. But on 9th October, 1978, John woke up from a nap and demanded to have sex. In her words, He was highly obsessed with sex; he wanted it two or three times a day. No matter what I gave him, he was never totally satisfied. Violent sex, including slapping and slugging, seemed to give John the most pleasure. Greta refused on that particular occasion. John attacked her, dragged her when she tried to escape and began to rape her. She submitted out of fear that he might further injure her. Greta managed to escape after this incident and filed charges against her husband under the Oregon laws of rape. John was arrested and charged with (marital) rape.1 The above is not an isolated incident of marital rape. Such instances are numerous 2; the only difference being that they are, more often, confined within the four walls and buried as normal course of matrimonial behavior. The law even does not attach enough culpability to such deviant conduct describing these instances of marital rape as strictly falling within the domestic arena where criminal law has no entry. Thus, though John Rideout was tried for rape, the jury found him not guilty of first-degree rape of his wife. (The reasons for such leniency, perhaps, lie in the historical evolution of the concept of rape.3) Marital Rape: Meaning The term marital 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.

Assistant Professor, Rajiv Gandhi School of IP Law, IIT Kharagpur, India. Julia Allison and Lawrence Wrightsman, Rape: The Misunderstood Crime (Sage Publications, 1993) pp.85-6. 2 Diana Russel (1990) interviewed over 900 randomly selected women and found that, while 3%had experienced completed rape by a stranger, 8% had experienced completed rape by a husband. David Finkelhor and Kersti Yllo of the family Research Laboratory in New Hampshire surveyed over 300 community women and found that while 3% reported sexual assault by a stranger, 10% who had married reported sexual assault by husband. The National Victim Centre, Arlington in a 1992 survey of over 3000 women report that 10% of all sexual assault cases reported by women involved a husband. 3 ibid.,n.1.

Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape.4

Historical Background The concept of marital rape was unknown in history; most societies, considered it acceptable for men to force their wives to sex. Even the concept of rape as an invasion of the physical and psychological integrity of woman was non prevalent. History reveals that there were direct ties between law, property and rape.5 Raptus in the sense of violent theft, applied to both property and person. It was synonymous to abduction. If a woman was abducted and sexually molested, even violently, the crime was not against her body, but merely the theft of a woman against the consent of her guardian or those who had legal power over her. The harm was treated as a wrong against her father or husband. As Susan Brownmiller asserts6, The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal; nor could a definition acceptable to males be based on a malefemale understanding of a females right to her bodily integrity. In other words, rape laws originated to safeguard the masculine pride in the exclusive possession of a sexual object.7 Not surprisingly, therefore, married women ravished at the hands of their partners never formed the subject of rape laws. Infact, the laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of marital relations. It asserted the husbands unquestioned right to sexual intercourse with his wife and her duty to submit. The latters right to freedom of choice in marital relations and the husbands duty to respect that right was completely overshadowed by the patriarchal laws.8 As emphasized by Sir Mathew Hale9-The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife hath given up herself unto her husband which she cannot retract. Ultimately, it was in the 1970s in America that women activists raised their voices for elimination of the marital rape exemption clause and extension of the guarantee of equal protection to women. Legislative Framework in India Thomas Babington Macaulay, the architect of the Indian Penal Code, adopted the same line of thinking while drafting the provisions of rape. Under the heading Offences against human body, clauses 359 and 360 dealt with the offence of rape. The former read as under:
4 5

<http:// > (Visited on 26th Aug, 02) Julia R. and Herman Schewendinger, Rape and Inequality (Sage Publications, California, 1993) p.95. 6 Susan Brownmiller, Against Our Will: Men, Women and Rape (Penguin, 1975) p.18. 7 Charlotte L.Mitra, For she has no right to give consent 1979 Crim. L.J. 558. 8 id., n.5. 9 Hale, History of the Pleas of the Crown (1786) p.629.

A man is said to commit rape who, except in the circumstances hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: 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 her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married. Fifthly: With or without her consent when she is under nine years of age. Exception: Sexual intercourse by a man with his wife, is in no case rape. Clause 360 stipulated the punishment for rape to be not more than fourteen years and not less than two years, with or without an additional fine. Thus, in Macaulays draft, there was clear preference of the rights of the husband over his wife against the wifes right to herself.10 The wife was not entitled to accuse her husband of rape, whatever the circumstances. But this provision, based on common law was not suitable to Indian conditions, especially at a time when child marriages were rampant. The low age of marriage should have necessitated the Law Commissioners to afford protection to child brides from sexual assaults. But Macaulay was much engrossed with the English Criminal Law system and Victorian notions of morality emphasizing the low status of women in society and thereby, failed to realize the injury which such provisions could do to the female populace. The final version of rape in Section 375 of the Indian Penal Code, 186011, differed little from Clause 359. The only amendments effected were in clause fifthly, wherein the age was fixed at ten years, and the exception which read as: Sexual intercourse by a man with his own wife, the wife not being under ten years of age is not rape. The subsequent years witnessed further changes with regard to the marital rape exemption clause12 and it now reads as:

Vasudha Dhagamwar, Law, Power and Justice: The Protection of Personal Rights in the Indian Penal Code (Sage Publications, 2nd Edn.) p.113. 11 Act XLV of 1860. 12 In 1891, the age in Exception to Sec 375 I.P.C. was raised to 12 years. It was the result of the Calcutta case of Queen Empress v. Hurree Mohan Mythee (1890) ILR Cal.49, in which the accused husband caused the death of his child wife, aged about 11 years and 3 months, by having sexual intercourse with her. Two other amendments were effected to the Exception to Sec 375 I.P.C. in 1925 and 1949 whereby the age was increased to 13 years and 15 years respectively.

Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. Section 376(1) thereafter spells out that, Whoever, commits rape 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 or with fine or both. The Penal Code therefore spells out the offence of marital rape in a very restricted sense13. It specifies a statutory age limit of 12 years for married women, beyond which the offence does not extend. In other words, to constitute the offence of rape within the marital bonds, the wife must be less than 12 years. If she is between 12 and 15, an offence is committed which is less serious in nature14, attracting mild punishment. However, once the age crosses fifteen, the rape legislation affords absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to Human Rights regulations. Efforts of Law Commission The Law Commission of India in its 42nd report15put forward the necessity of excluding marital rape from the ambit of Sec. 375. In their words 16, 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. The subsequent Law Commission17 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 words19, 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. The recommended section thus read as: Exception: Sexual intercourse by a man with his own wife, the wife not being under 18 years of age is not rape.

See also, Section 376A which lays down that in case of sexual intercourse by a man on his wife, living separately under a decree of separation or under any custom, without her consent, he shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable for fine.

Intercourse by a man with his wife not being under 12 years of age is a non-cognizable, bailable offence triable by the Court of Session. See, Schedule I, Code of Criminal Procedure, 1973. 15 Law Commission of India, 42nd Report, Indian Penal Code, Government of India, Ministry of Law , June 1971. 16 ibid., at para. 16.115. 17 Law Commission of India, Eighty Fourth Report on Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence, April, 1980. 18 ibid., at para. 2.21. 19 ibid., at para. 2.20.

Even the latest report of the Law Commission20 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.21 The only suggestion made is (again) with regard to age that may be enhanced from 15 to 16 years. Marital rape: The Opposition Marital rape has never received the attention of the lawmakers. It has never been discussed, debated or deliberated upon. It has simply been eluded; perhaps due to certain obvious reasons. In the first place, Indian societal structure do not approve of women who take up arms against their families, especially husbands. The wifes role is traditionally defined as a homemaker, soft and obedient by nature and who regards her husband as next to God (the concept of pati parameshwar ). Secondly sex (even though forced) within marriage is viewed as a marital obligation. Few would recognize forced sex as amounting to rape. The vast population including its intelligentsia would perhaps regard it as sex being stretched too far or just one extension of domestic violence22. Thirdly, sex is a taboo in Indian society. What is meant, is not the practice, for it remains widespread amongst all sections of people, whether consensual or nonconsensual; but the awareness of sexual rights amongst Indian women. Their right to say no has never been talked of- their obligation to obey has only been stressed upon. Economic resources play a significant role in womens ability to reinforce her rights and the societys obligation to respect it. In India, majority of the women do not enjoy economic independence. They are dependent on their husbands for food, clothing and shelter. Recognition of the offence of marital rape, may in such a situation, pose greater difficulty. Lastly, the legislators have perceived of the problem as not deserving adequate attention for certain reasons: o Poverty, unemployment, illiteracy etc. have been their primary cause of concern, not the hapless victims of forced rapes by husbands. o They believe that even if marital rape is recognized, it would prove to be a mere cosmetic provision in the Penal Code. Indian women would hardly dare to accuse their husbands of rape and launch prosecutions to convict them. o Legitimizing the offence of marital rape might tantamount to challenging the existing social ethos. It might break the notions of power, control and dominance and open a whole range of issues having difficulties and perplexing implications.

Law Commission of India, One hundred and Seventy Second Report on Review of Rape Laws, March 2000.
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ibid., at p. 27. < http://>(Visited on 15.8.02)

Marital Rape- The Arguments The myths related to the act of marital rape must be shirked off23. 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 ones selfconvenience 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. o Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue, vomiting o Broken bones, black eyes, bloody noses etc. o Anxiety, shock, intense fear, depression and suicidal thoughts. o Gynecological effects include miscarriage, still-births, bladder infections, STDs and infertility. o Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy problems, negative self-image and sexual dysfunction. o Research has also indicated that marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence.24 The menace is further worsened by the fact that in marital rapes the victim continues to live with the rapist. The risk of her being assaulted again remains high and the fear drives her into a state of deep emotional and psychological imbalance. 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. Concluding Remarks The time is ripe for the Indian Legislature to awake from its years of slumber and make amendments to the Indian Penal Code. Several jurisdictions of the world have either recognized marital rape as an offence or else set in motion the task of breaking the shackles of traditionalism. Even the Supreme Court of Nepal has ruled that forced sex within marriage constitutes marital rape.25 Unfortunately, India is lagging behind. But

Some myths related to marital rape are: Marital Rape is non-existent in India. It is a womens fate to be abused. Men are the rulers of their homes and have the right to discipline their wives. It is a wifes moral duty to satisfy her husband according to his terms and conditions. There are no better alternatives for a woman than to accept in silence the torture of husband. 24 Supra., n.22.. 25 (Visited on 5th Sept. 02)

there is nothing to believe that marital rape does not happen in Indian families. It is prevalent in every city, every town, every village of India. It is happening in our very neighborhoods; the only difference is that we have turned a blind eye to the issue. The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honor of the womenfolk 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 culture26 is pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control. If such heritage is to be reinstated in Indian life, women must find a place of respect. As said by Manu27, Where females are honored, there the deities are pleased; but where they are dishonored, there all religious rites become useless. Women must be honoured

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See The Constitution of India, Art. 51A(e) and (f). Dwarka Nath Mitter, The Position of Women in Hindu Law (Nababibhakar Press,1913) p.127.; See, Altekar A.S., The Position of Women in Hindu Civilization (1959, 2nd Edn.)