By : Sai Sindhura Kongara, Law Student, Presidency University, Bangalore
Abstract
In spite of having various penal laws, India reports 86 rape cases daily on an average, with the number potentially rising annually. The ‘Marital Rapes,’ which are rapes performed by one spouse over the other without their consent, are included on the other side of this group of rape instances. Due to the long-held belief that wives are subordinate to males and must submit to whatever the husbands say and does, the majority of marital rapes go unreported. There have been numerous discussions over whether such an offense should be made a crime or not as women have begun to assert their rights and file complaints against their spouses who have engaged in non-consensual sexual intercourse with them. However, marital rapes are not currently criminalized. This paper discusses about the identification of marital rape as a punishable offence with reference to provisions of various laws and conventions. Therefore, it is crucial to comprehend marital rapes in India and its judicial interpretation by the courts. Further criminalization of marital rapes is wholly necessary.
KEY WORDS: Penal Laws, Marital Rapes, Non-Consensual Sexual Intercourse, Criminalization
INTRODUCTION
Marital rape is the act of one spouse engaging in sexual intercourse with the other without the consent and such intercourse is a result of threat, force and physical violence, it being a gender-neutral act, marital rape can be committed by either the husband or the wife. Marital rape is one such social evil that dates back to the ancient times and has been in society since the time immemorial. Over the years, several practices such as Sati, Child Marriage, and Devdasi have been outlawed, but Marital Rape is one such practice that continues to be in existence even in the modern era. Marital rape is exempt from prosecution because of a ruling made by English Chief Justice Sir William Hale in the 17th century. Hale stated that if a matrimonial relationship is established between two people with mutual consent, the husband cannot be held accountable for raping his lawful wife because the wife has given herself to him in this relationship. Blackstone created the "unities theory," which is in line with Hale's concept and holds that a husband and wife become one entity after marriage, that a wife is her husband's property, and that a husband cannot attempt to steal from or commit a crime against himself.
Marital rape is linked to societal humiliation as wife is suppressed by her husband taking advantage of her, rape is grave violation of person’s fundamental right and individual freedom, the act is controversial issue in today’s society because it is not criminalized despite violating the rape laws under section 63 of the Bharatiya Nyay Sanhita, 2023. As Indian society is believed to be a patriarchal system, which is a system of society or government controlled by men, the majority of the victims in this scenario would be women. Dominance is mostly observed in matrimonial relationships, where it has long been held that the wife, as a spouse, must submit to her husband’s authority. In the day-to-day obligations in a married life, including their sexual relationships, men are viewed as superior to women. The wife is viewed as someone who should always submit her will to the husband, whereas men are least troubled to heed their wife’s wishes and opinions. Women’s consent to have sexual intercourse is not recognized and is frequently ignored. For many of them, being married provides immunity since it gives them authorization to engage in non-consensual sex with their spouse. If they weren’t married, however, engaging in such intercourse would constitute rape under Indian law, and the offender would be punished as a result.
According to the UN Women report and Amnesty International data out of 185 Countries 77 have criminalized marital rape, while 74 have allowed women to file complaints against their husbands. However, approximately 34 countries have not yet criminalized marital rapes majority of which are the developing countries. The other countries on this list are China, Pakistan, Bangladesh, Sri Lanka, Singapore, and few more.
REVIEW OF LITERATURE
Raveena Rao Kallakuru and Pradyumna Rao (2018) in their research paper titled ‘Criminalization of Marital Rape in India: Understanding its Constitutional, Cultural and Legal Impact’ emphasized on the concept of marital rapes and its criminalization in many countries its history and its existence since ages in this patriarchal society. Section 375 of IPC has been dealt in detail focusing more on the analysis of the exception of this section. The writers went on to evaluate the legislative discussions and the law commission of India's reports in relation to the issue over marital rapes. The writers went on to briefly discuss the recommendations given in Justice Verma Committee and the Criminal Law Amendment Bill 2012, stating that the woman’s fundamental rights were violated because marital rapes were not criminalized. Additionally, they have listed the options open to rape victims in marriage. Finally, they have provided a comprehensive analysis and expressed their opinions. The research paper was excellent in my opinion, but it would have been even better if they had included any relevant Indian case laws, which would have served as supporting documentation.
G.V. Akshaya and M. Kannappan (2018) in their research paper titled ‘A Study on Marital Rape in the Indian Legal Scenario’ analyzed on the need for special law on marital rape. Their main focus in this paper was to analyze why marital rape is not criminalized in India. The authors discussed the Justice Verma Committee’s recommendations and the 2005 Domestic Violence Act, which did not make marital rapes a crime. The writers questioned the validity of the exception to section 375 of the IPC. The authors have also conducted a brief comparative research of marital rapes in India and the United States. The writers explored the judiciary's role in deciding whether or not to make marital rape a crime before highlighting how vitally this offense needs to be criminalized.
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