Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
penalising marital rapes in india
Typology: Study Guides, Projects, Research
1 / 26
This page cannot be seen from the preview
Don't miss anything!
1 | Page
We are feeling highly elated to work on under the guidance of my Criminal Law I faculty. I am very grateful to him for the exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to bring more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance.
2 | Page
The research has adopted the hypothesis that India is focusing on protection and prevention of crimes against women but fails to protect a married woman from her rapist who apparently in such cases is her husband, by not having any legal provisions acknowledging marital rape as a crime. Therefore, there is need for immediate criminalization of marital rape under IPC, 1860.
The research includes different options. They are:
4 | Page
It is usually a small-scale study undertaken to define the exact nature of a problem and to gain a better understanding of the environment within which the problem has occurred. It is the initial research, before more conclusive research is under taken.
It is to provide an accurate picture of some aspects of market environment. Descriptive research is used when the objective is to provide a systematic description that is as factual and accurate as possible. It provides the number of time something occurs, or frequency, lends itself to satisfied calculations such as determining average number of occurrences.
INTRODUCTION......................................................................................................................................... 6
MARITAL RAPE – MEANING....................................................................................................................
5 | Page
been victims of crimes like rape, sodomy, sexual harassment, female infanticide etc. In recent times, where the general public is fighting for equal rights for both men and women the rate of crime against women is proliferating. Rape is a crime due to which women all over the world are suffering. Other countries have tried their best in making laws for the protection of women. India is focusing on protection and prevention of crimes against women but fails to protect a married woman from her rapist who apparently in such cases is her husband, by not having any legal provisions acknowledging marital rape as a crime. There is need for immediate criminalization of marital rape. This project submits the reason regarding the failure of law in India by not defining marital rape as a crime and the consequences of the same.
Violence against women is a manifestation of historic power play struggles between men and women, which has led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. 1
As Susan Brown miller asserts, “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.”^2
India is the seventh largest country in the world. Its population is over 1.2 billion and is the most-populous democracy in the world. It is a country with a blend of various religions, cultures, languages, customs, usages and much more. The crime rate in India is increasing at an alarming rate. As per the Crime Index for 2015 Mid-year, crime index in India is 46.82 3 and as per the reports of the National Crime Record Bureau, crime against women during the year 2013 was noted to be approximately 52.2.^4
It has been rightly said that the worth of a country can be judged from the position that it gives to women. Women have never been given importance in India; their position is still not what it
7 | Page
1 The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993. 2 Susan Brown miller, Against Our Will: Men, Women and Rape (Penguin, 1975) p.18. 3 Crime Index for Country 2015 Mid Year, available at : http://www.numbeo.com/crime/ rankings_by_country.jsp 4 Rate of crime against women during 2013, available at : http://ncrb.gov.in
should have been. In India women have always been considered inferior to men which have led to India being developed as a country with male chauvinist ideologies. Women in India are subjected to criminal atrocities such as Rape, Domestic Violence, sexual harassment, trafficking and forced prostitution. This is just a small part of a never ending list of crimes against women.
Marriage, also called matrimony or wedlock, is a socially and legally recognized union between spouses that establishes rights and obligations between them, their children, and their in-laws^5. According to ancient Hindu scriptures no religious rite can be performed with perfection by a man without the participation of his wife. Wife’s participation is essential in any religious rite. Wives are thus befittingly called ‘Ardhangani’. They are supposed to be given not only importance but equal position with men. 6 But with reference to recent times it can be noticed that the position of women is deteriorating.
The idea of the “sacrosanct” institution of marriage portrayed in India is contrary and far from women’s perception of reality. Hidden under the iron veil of marriage lies the ugly truth of crimes like marital rape, domestic violence etc. Marital rape is not legally recognized as a crime in India and thus, there is no penalization for the same. Through this project, the researchers make an attempt to denounce the discrimination faced by women with regard to marital rape and the shortcomings of the Indian Judicial System by not conceding marital rape as an offence. The researchers also provide arguments and reasons supporting the need for criminalization of marital rape in India, and further suggest certain legal reforms essential to achieve the desired objectives.
Marital rape refers to the sexual intercourse between a man and a woman, who are legally accepted as husband and wife, where the woman does not give consent for such intercourse. Marriage, as discussed earlier is an unimpeachable bond in which the man and woman vow to live together in happiness as well as in pain by greeting the flaws of each other. Marriage also gives a right to the husband and wife to lawfully consummate their marriage. Consummation is considered to be a necessary requisite after the marriage has taken place. Marriage is a stable
8 | Page
5 Haviland, William A.; Prins, Harald E. L.; McBride, Bunny; Walrath, Dana (2011). Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning. 6 Dr. (Ms.) Rekha Singh , “ Status of Women in Indian Society”, available at: : https://www.bu.edu
Sexual intercourse with a girl who is under sixteen years of age would also be called as rape even if the girl consented for such intercourse. Apart from this the definition of rape also comprises of an exception which states that a man having sexual intercourse with his own wife, who is not under the age of fifteen years is not rape. Section 375, the provision of rape in the Indian Penal Code (IPC), echoes very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” There is clear preference of the rights of the husband over his wife against the wife’s right to herself. 11 It can be clearly seen that the exception to this section does not acknowledge a wife being raped by her husband, provided that she is above 15 years of age. The Indian Penal Code Simply overlooks an offence as atrocious as marital rape by not having a provision for it. Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one spouse against the other.^12 The court in a case said “Defense counsel rightly argued that IPC does not recognize concept of marital rape. If complainant was a legally wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes”. 13
Various authors have over time come up with different theories regarding the occurrence of marital rape in the society: THE FEMINIST THEORY: This theory considers marital rape as a tool in the hands of the patriarchal society that is used to exercise control over women. They consider that the exemption given in cases of marital rape is a remnant of the earlier laws regarding women that considered them to be the property of the
10 | Page
11 Dipa Dube, License to Rape: The Indian Viewpoint, Indian Institute of Technology – Rajiv Gandhi School of Intellectual Property Law, February 14, 2006 12 Marital Rape, available at : http://rapeinfo.wordpress.com 13 The Life and Times of an Indian Homemaker, available at : https://indianhomemaker.wordpress.com
husband. 14 The feminists are of the view that marital rape is nothing but a result of a power play by the male spouse in the marriage. 15 Radical feminists have gone to the extent of arguing that any form of heterosexual intercourse is based mainly on the desire of the man and is another form of oppression on women.^16 THE SOCIAL CONSTRUCTIONISM THEORY: The believers in the theory of social constructionism are of the view that men have dominated the society in law making and the political arena since ancient days. 17 Laws thus came as a reflection of the interest of men. Such laws considered women to be their husband’s property after marriage and hence, marital rape was considered an offence of lesser degree as compared with rape.^18 Some jurisdictions even considered that rape in a marriage is not rape at all.^19 The social constructionists believe that marital rape is a means through which men try to assert themselves over their wives so as to retain their long gained power over their property. 20
THE SEX-ROLE SOCIALIZATION THEORY: These theorists believe that it is the particular gender roles which guide the sexual interactions between the spouses in a marriage. In a marriage, women are always taught to be calm and passive, submissive whereas, men are trained to be dominant and aggressive. 21 Care and love are attributed to women. Men, on the other hand, are the major perpetrators of sexual entertainment with violent themes. 22 Sex role socialists are of the view that marital rape is nothing but an expression of the traditional perceptions of sex roles.^23
11 | Page
14 Feminist Perspectives On Rape , Stanford Encyclopedia Of Philosophy, available at http://plato.stanford.edu/entries/feminism-rape 15 Marital Rape In India: A Radical Feminist Perspective , Tamanna Khosla, Mainstream Weekly, Vol III,
16 Radical Feminism On Rape , Izvorni Znanstiveni, The Hebrew University, 507. 17 A Review Of Marital rape , Patricia A. Resick, Research Gate, 332. 18 Encyclopedia Of Victimology And Crime Prevention , Bonnie S. Fisher, SAGE, 2010, 721. 19 Encyclopedia Of Domestic Violence , Nicky Ali Jackson, Routledge, 2007, 466. 20 Proximate And Ultimate Explanations Are Required For A Comprehensive Understanding Of Partner Rape , Aaron T. Goetz, Aggression And Violent Behaviour, Elsevior, 2. 21 A Review Of Marital rape , Patricia A. Resick, Research Gate, 332. 22 Social Perspectives On Violence , Thomas W Blume, Michigan Family Review, Vol. II, 3. 23 A Review Of Marital Rape. Aggression And Violent Behavior , Martin, E. K., Taft, C. T., & Resick, P. A. (2007). 12, 329.
physical violence as well as rape suffer from other complications like blackened eyes , broken bones, and wounds inflicted by any sort of a weapon, during sexual violence.
Women also go through some gynaecological problems due to marital rape like miscarriages, infections, infertility and also the chance of contracting of various sexually transmitted diseases like HIV etc.
Marital rape or for that matter crimes against women can have numerous reasons , the most obvious being the desire of men to assert superiority over women other reasons can be sexual perversion of husband , or any small issue.
Our patriarchal and male dominated social system is the main reason behind the widespread gender inequality which leads to the suppression of the female counterpart in the society. Women in our society have never been given the same status and importance as men; they even don’t have the same rights as men. This gives men an unjustified edge over women which is very much exploited.
Another reason is the traditional role which a woman is expected to play regardless of her choice. Women are expected to be in the role of a pativrata stri which means a pure, faithful and obliging wife. Our society has limited the role of the woman to simply belonging to someone else, a daughter belonging to her father, a mother belonging to her children and the wife belonging to her husband. Slowly and steadily the role of a woman has been reduced just to belonging to someone else and having no identity of her own.
After marriage women are treated like a piece of property acquired by the husband. All these social norms and traditions gives the male ego a boost which leads to superiority complex in them, this causes men to start believing that they can do anything with their wives and that consent to sex is impliedly given when she agrees to marry him. So when after marriage, if the wife refuses to have consensual sex, they believe there’s nothing wrong in forcefully having sex
13 | Page
with her. But what men forget in these situations is that any type of sex which is not consensual is called rape, and they knowingly or unknowingly are repeatedly raping their wives. Not having legislation against marital rape is biggest reason that men don’t think twice before raping their wives. Thus if a wife files a complaint against her husband she will have no specific legal remedy. So the notion of a ‘good wife’ is not good for women but for men only.
In a research it was concluded that a husband who forcefully tries to have sexual intercourse with his wife always has some intention behind it. The reasons can be to have a feeling of power over her, way of getting rid of his anger over her or due to some other tensions, having a sense of insecurity or inadequacy or in other words having an inferiority complex over her, having a sadistic nature and getting sexually aroused by causing her pain and fear, choosing coercive sex over consensual sex and finally to ensure a sense of entitlement. 24
Marital rape in itself is a type of domestic violence. It is an act of forceful and violent control and thus, sometimes includes physical abuse, emotional abuse, mental abuse, social abuse, financial abuse, spiritual abuse and usage of male privilege. Wife experiencing such forms of abuse, may doubt their own worth or sanity, and may have little self-confidence. Historically, women were seen as the property of their husbands – but it’s not necessary for wedding rings to be traded for ownership of a woman to be assumed – and those who were raped by boyfriends, fiancés and live-in partners can attest.^25
The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society^26
14 | Page
24 Men who sexually assault their partners, available at : http://www.aphroditewounded.org 25 Intimate partner sexual violence: an overview, available at : http://www.aphroditewounded.org 26 Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000).
Rape is defined as any nonconsensual sexual intercourse between non-spouses and it has always been illegal. However, until 1975, every state had a “marital exemption” that allowed a husband to rape his wife without fear of legal consequences. By 1993, largely in response to the women’s rights and equality movement, every state and the District of Columbia had passed laws against marital rape. Since 1993, all 50 states and DC have enacted laws against marital rape. The only marital exemption that still exists in some states is for statutory rape. All states now recognize rape within marriage as a crime, and most charge the crime in the same way that rape between strangers would be charged.^28 U.K. The marital rape exemption was abolished in England and Wales in 1991 by the Appellate Committee of the House of Lords, in the case of R v R. The exemption had never been a rule of statute, having first been promulgated in 1736 in Matthew Hale’s History of the Pleas of the Crown, where Hale stated: But the husband cannot be guilty of a rape committed by himself upon his lawful 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. Corresponding amendment to the statutory law was made through Section 147 of the Criminal Justice and Public Order Act,
16 | Page
28 Marital Rape Laws, available at : http://www.criminaldefenselawyer.com 29 Bergen, 1996; Pagelow, 1984; Russell, 1990
Domestic violence has emerged as the single-largest crime against women. In 2013, the National Crime Records Bureau (NCRB) reported over 118,000 domestic violence cases, which made up a third of all crimes against women, far ahead of molestation (70,739) and rape (33,707). The number of reported domestic violence cases also shot up from a mere 50,703 in 2003 before the passage of the Domestic Violence Act, 2005. Sexual violence, including rape, falls within the larger ambit of domestic violence, but rape by husbands within marriages is a shadowy subject in India and exact numbers are hard to come by.^30
Sexual Offences against women have become a very sensitive issue in India. After the Delhi Gang Rape Case, the government of India tried to make and implement arduous laws keeping in mind the safety of women. Marital Rape although has still not been able to achieve status of a crime.
Article 14 of the Indian Constitution states “Equality before law.” It prevents state from discriminating amongst the citizens on any ground, but in regard to defining marital rape as a crime the State discriminates against women. As per exception of Section 375 of Indian Penal Code, a married female below the age of 15 years has a right to allege her husband against the charge of marital rape if her husband forces her to have sexual intercourse with him without her consent or will. The question arises that why this right curtailed is after she has attained the age of 15 years. Being in a marriage does not give the male the power or authority to dominate the female and fulfill his sexual needs. The article does not provide reasonable classification for this discrimination within the gender.
Moreover, this exception under section 375 of the Indian Penal Code is in itself contradictory because as per the Hindu Marriage Act 1955, Section 5 (c) (iii) the rightful age for a female to marriage is 18 years. Thus, this anyways leads to contradiction in laws prevailing in India.
Article 21 of the Indian Constitution states “Protection of life and personal liberty.” The article includes the right to live with personal liberty and dignity but if a female is forcefully asked to have a sexual intercourse with her husband then the validity of her right to exercise her personal liberty is questionable and her dignity is affected. Exception to Section 375 of Indian Penal Code violates this right given to all females.
17 | Page
30 Behind closed doors: Marital rape in India, available at : http://www.livemint.com
whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.^32 The then government, led by the Congress party, had rejected this proposal. A panel of lawmakers who opposed the move at the time argued it had “the potential of destroying the institution of marriage, if marital rape is brought under the law, the entire family system will be under great stress.” The government eventually passed a new sexual-assault law, which did not criminalize marital rape in 2013. 33
The government today says the cause for marital rape in India is poverty, religious beliefs, social customs and the mindset of the Indian society, among other things. As per the latest parliamentary discussions it seems like the current government led by India’s Bharatiya Janata Party-government, headed by Prime Minister Narendra Modi does not settle to introduce any plans relating to punishments or penalties for marital rape. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context,” Haribhai Parathibhai Chaudhary, a minister in India’s Ministry of Home Affairs, said in a written statement to India’s upper house of Parliament. He attributed this to “various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”
But contradictory to such statements, the Indian society is drastically changing, a marriage that supports violence should no longer be considered to be sacrosanct. The argument that Indian society is too traditional to criminalize marital rape is baseless and unreasonable; such propaganda should not be taken up by the government. The government should be clear on the agenda they want to promote, on one hand the officials and ministers rant on about gender equality, elimination of gender stereotypes and women empowerment by giving women an opportunity to stand equal to men in all aspects, while on the other hand they do not give women even the basic rights they deserve. At a time when the world’s most powerful democracies are legalizing same-sex marriage, the world’s largest democracy is doing nothing to help women getting raped by their husbands, hiding behind the veil of tradition. If tradition is the only barometer then Dalits would still be untouchable, temples and high-end jobs would remain out of bounds for many castes. Tradition cannot be used to defend the indefensible. On issues related to human rights we cannot discriminate against women on the basis of marital status. 34
19 | Page
32 Government of India , Report : Justice Verma Committee , (Ministry of Home Affairs ,2013). 33 Modi Government’s Reasons Why Marital Rape Is Not a Crime , available at: http://blogs.wsj.com 34 Editorial , Rape is rape, The Times of India , May 1, 2015
Marital Rape exception under Section 375 – The deep patriarchal norms present in the society have created a mindset that domestic violence is a private matter and should be settled within the four walls of the house. The burden lies on women to be bound by the social norms. Section 49835 of IPC is a remedy against violence in marriage, but it has a very limited scope and does not provide immediate relief.^36
Even under Section 375 of IPC, marital rape has been given as an exception. Thus victimised married women are denied state protection. Women under this statute are being divided in two groups: those below fifteen years and those separated from their husbands. Punishment of rape against girls below twelve years is imprisonment for ten years or more, while rape against girls under fifteen carries lesser punishment if the rapist is married to her.^37 Law Commission Report- In the 42 nd^ Report by the Law Commission it was recommended that criminal liability should be attached to intercourse of man with his minor wife. However, the Committee refused the recommendation stating that husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage. Further in 1983 with addition of Section 376A IPC, rape of judicially separated wife was criminalised.
20 | Page
35 Sec. 498A, Indian Penal Code, 1860- Whoever being the husband of the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 36 Lawyers Collective, Staying Alive: On the Protection of Women from Domestic Violence Act 3(2005). 37 Sec. 376 of Indian Penal Code,1860.
