January 12, 2024

Empowering Survivors: the legal landscape for Victims of Marital Rape

This Article is written by Mr. JAGRIT SINGLA, student of BABA FARID LAW COLLEGE, FARIDKOT. 

Abstract:

This article examines the legal remedies available to victims of marital rape, exploring the evolving landscape of legislation and societal responses on an international scale. The analysis delves into the reasons for criminalizing or not criminalizing marital rape, considering the implications for human rights, gender equality, and privacy. Additionally, the article discusses key legal avenues, including criminal laws, domestic violence legislation, civil remedies, and human rights instruments. By exploring the multifaceted nature of legal responses, the article aims to contribute to ongoing discussions on protecting the rights and dignity of individuals affected by marital rape.

Introduction:

A Marriage is sacramental occasion as it is a lasting commitment of a man and woman to a lifelong partnership, established for the good of each other and the procreation of the children by having sexual intercourse. As it is a relationship between two persons, thus the consent of both the persons becomes necessary, otherwise it will amount to crime and the same applies in case of sexual intercourse. The term “Rape” refers to any non-consensual sexual activity between a male and a female. Nowadays, the Marital Rape is an emerging and debatable issue that whether it should be considered as a crime or not. Marital rape is a grave issue that requires comprehensive legal remedies to protect victims and ensure justice. Historically, many legal systems did not explicitly recognize marital rape as a criminal offense, often assuming consent within the confines of marriage.

In recent years, there has been a global push for legal reforms to criminalize marital rape and provide legal remedies for victims. The recognition of marital rape as a crime is an important step towards addressing gender-based violence and ensuring the protection of individual within intimate relationships. 

Marital Rape:

Marital Rape refers to the act of non-consensual sexual intercourse within a marriage, where one spouse forces the other to engage in sexual activity against their will. It involves any sexual activity without the explicit consent of one partner. Marital Rape is a form of intimate partner violence and a violation of trust, personal autonomy and boundaries, and the violation of right to bodily integrity. Legal responses to marital rape vary worldwide, with some jurisdictions explicitly criminalizing it, while others may lack clear legislation.

#Case: In, “Nimeshbhai Bharatbhai Desai” vs. “State of Gujarat,” the Gujarat High Court help that marital rape violates the trust and confidence within the marriage, which damaged the institution of marriage.

Legal Remedies for Victims of Marital Rape:

The societal understanding of consent, autonomy, and the right to be free from sexual violence within a marriage continues to evolve, prompting ongoing discussions about the need for legal and social changes to better protect individuals from the abuse of marital rape. Legal Remedies for the victims of marital rape vary by jurisdiction, but the common avenues include: –

  1. Criminal Laws: Marital Rape is now recognized as a criminal offense in various jurisdictions. Victims can pursue legal action against their perpetrators under existing rape laws. Some jurisdictions explicitly criminalize marital rape, while others rely on general sexual assault statutes. In India, the provision regarding the offense of Rape is provided under Section 375 of the Indian Penal Code, 1860 and the punishment for the rape is mentioned under Section 376 of the Code.
  2. Domestic Violence Laws: The of the Marital Rape may seek the protection under the Domestic Violence Laws, which often provide for restraining orders and emergency protective measures. These laws acknowledge the broader spectrum of abuse within marital relationships, including physical, emotional, and sexual abuse. In India, The Protection of Women from Domestic Violence Act, 2005 protects the women from any type of cruelties including sexual abuse and considers marital rape as a form of domestic violence.
  3. Civil Lawsuits: Victims can file civil lawsuits seeking damages for the harm suffered, along with the addressing broader issues such as divorce, child custody, and spousal support. Civil remedies empower victims to take control of their lives and pursue legal action against their assailants. This also helps the victims to claim the damages for both the physical as well as the emotional harm suffered as the consequences of the marital rape.
  4. Human Rights Instruments: Victims can invoke international human rights treaties that address gender-based violence. Instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) emphasize the need for protection against violence, irrespective of the marital relationship. Victims can leverage these instruments to highlight the global commitment to protecting individuals from marital rape.
  5. Support Services and Counselling: Legal remedies are often complemented by support services, including Counselling and Therapy. These services aim to help victims cope with the trauma while providing valuable evidence for legal proceedings.
  6. Law Enforcement and Reporting: Encouraging victims to report the marital rape to law enforcement is crucial. Many jurisdictions have established specialized units trained to handle cases of sexual violence. Timely reporting enhances the chances of a successful legal outcome. The specialized units are equipped to handle these delicate cases of sexual violence which ensures a though investigation, and help the victims.
  7. Medical Documentation: The victims shall seek the medical attention promptly after an incident of sexual violence, to ensure proper documentation of injuries and collect evidence that may be crucial in legal proceedings.
  8. Anonymous Reporting Hotlines: In some regions, the anonymous reporting hotlines exist, providing a confidential space for the victims of marital rape to share their experiences and seek guidance on available legal options.
  9. Advocacy and Legal Reforms: Advocacy and activism plays a pivotal role in pushing for legal reforms that explicitly criminalize marital rape. Collaborating with the lawmakers, non-governmental organizations, and activists is essential to effecting lasting change and raising awareness about this pervasive issue. These activists and organisations work to change laws and challenge social norms by raising the consciousness about the importance of recognizing and addressing marital rape.
  10. Community Resources: The victims may explore the community resources, including local shelters, legal aid organizations, and support groups, which can offer assistance and guidance throughout the legal process.

 

Marital Rape in India:

In India, 70 percent of women are the victims of domestic violence, according to National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019. The issue of marital rape is not explicitly criminalized and is a debatable issue, even though several amendments have been made in the criminal law to protect women. The punishment of marital rape is given under the Indian Penal Code, 1860 and only applies in the situation of “non-consensual intercourse with wife who is aged between 12 and 15 years”; but now the age in the said provision is increased to 18 years. 

Section 375 of the Indian Penal Code,1860 states that, “A man is said to commit rape if he-

  1. Penetrates his penis, to any extent; or
  2. Inserts, to any extent, any object, or a part of the body, not being the penis; or
  3. Manipulates any part of the body of a woman to cause penetration; or
  4. Applies his mouth,

 to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following descriptions: –

First – against her will.

Second – 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 18 years of age.

Seventhly – when she is unable to communicate consent.

Here, Exception 2 of this Section provides that, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under the 15 years of age, is not rape.”

Section 376 of IPC provides the punishment for the rape to be rigorous imprisonment which shall not be less than ten years, which may be extend to life imprisonment and shall also be liable to fine.

#Case: In, “Daya Ram and Anr.” Vs “State of Haryana and Others” (2021), the Punjab and Haryana High Court stated that, the Marital Rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC. Therefore, it does appear that only a notional and linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of married girl child and aggravated penetrative sexual assault. There is no rationale for this distinction and it is nothing but a completely arbitrary and discriminatory distinction.  

#Case: In, “Independent Thought” V. “Union of India” (2017), the Supreme Court of India stated the Exception 2 of the Section 375 IPC is unconstitutional so far as it relates to a girl below the age of 18 years and is liable to be struck down on the following grounds: – 

  1. It is arbitrary, capricious, whimsical, and violative of the rights of the girl child and not fair, just, and reasonable and, therefore, violative of Article 14,15, and 21 of the Constitution of India;
  2. It is discriminatory and violative of Article 14 of the Indian Constitution; and 
  3. It is inconsistent with the provisions of POCSO, which must prevail.

Recently, the Government of India replaces the three laws, i.e., Indian Penal Code,1860 (IPC), The Criminal Procedure Code,1973 (CrPC) and Indian Evidence Act, 1872 with introducing three new Laws which are “The Bhartiya Nyaya Sanhita, 2023”; “Bhartiya Nagarik Suraksha Sanhita, 2023”; and “Bhartiya Sakshya Bill, 2023” and 

The Bhartiya Nyaya Sanhita provides the provision of the “Rape” under “Section 63” and the same age of the wife is increased to 18 years as provided in the abovesaid Exception 2 of Section 375 IPC. “The Bhartiya Nyaya Sanhita” also provides the provision of “Sexual intercourse by husband upon his wife during separation or by person in authority” under Section 67, as “whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punishable with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”

Enactment of the “Protection of Women from Domestic Violence Act, 2005” recognized marital rape as a form of domestic violence. This Act enables women to seek legal remedies from any physical and mental cruelties of all forms, including sexual abuse or marital rape, by offering an avenue for seeking legal separation from an abusive spouse. Under the Domestic Violence Act, the offence of marital rape provides for a lesser jail term than the non-marital rape. The Magistrate has the power to appoint protection officers under the 2005 Act to protect wives or live-in partners from domestic violence.  However, the laws and mechanisms intended to protect victims of marital rape are insufficient and fall short of addressing the gravity of the issue.

Data related to Marital Rape in India: 

The absence of legal protection against marital rape is an urgent women’s rights concern in India. The report of National Family Health Survey (NFHS) revealed that the incidence percentage of Intimate Partner Violence (IPV) against women ranges between 3% to 43%. According to the survey held in 2019-2020, ‘1 in 3 women in India aged 18-49’ experience spousal violence, with at least 5% – 6% of the women reporting sexual violence. The survey of NFHS also shows that 5.6% of married women were physically forced to have sexual intercourse with their husbands, 2.7% of women were physically forced to perform sexual activities that they did not wish to perform, and 3.7% of the women were forced to perform sexual activities against their will through threats of physical violence. The NFHS revealed that according to the data collected until 2021, 82% of married men were sexually violent with their wives, and 90% of the survivors who faced spousal sexual violence refrained from taking any action or seeking help.

Despite this harsh situation, marital rape is still considered as a domestic violence issue only, in India. Therefore, the remedies available to the victim of marital rape are civil in nature and are limited to “protection orders, judicial separation, and monetary compensation” under The Protection of Women from Domestic Violence Act, 2005.

#Case: In, “Anjanaben” vs. “State of Gujarat,”(2023) the Gujarat High Court stated that, Marital Rape is illegal in 50 American States, Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, and Czechoslovakia and several others. Thus, a man sexually assaulting or raping a woman is amendable to punishment under Section 376 of IPC. In most of the cases of such nature, the usual practice is that if the man is the husband, performing the very same act as that of another man, he is exempted. But the same cannot be countenanced. A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife.”

International Aspect of Marital Rape:  

The International aspect of Marital Rape involves recognizing and addressing this form of violence against spouses from a global perspective. While legal approaches and societal attitudes vary widely, several international principles and agreements highlight the importance of combating marital rape as a violation of human rights. The key aspects to consider are as follows: –

  • International Human Rights Framework and Jurisprudence: The international human rights framework and jurisprudence recognize “rape” as a human rights violation and a manifestation of gender-based violence against women and girls that could amount to torture, including “marital rape.”  
  • United Nations Sustainable Development Goals (SDGs): “Goal 5” of the SDGs aim to achieve gender equality and empower all women and girls. Addressing gender-based violence, including marital rape, is integral to achieving this goal. The SDGs provide a global framework for countries to work towards eliminating violence against women. 
  • International Criminal Court (ICC): The ICC, established to prosecute individuals for the most serious crimes of international concern, recognizes sexual and gender-based crimes as part of its jurisdiction. Marital rape could potentially fall within the scope of crimes against humanity if committed systematically or on a widespread scale.
  • Regional Agreements: Regional bodies may also address marital rape. For example, the Council of Europe’s Istanbul Convention is a regional treaty that focuses on preventing and combating violence against women, including with intimate relationships.
  • CEDAW Committee’s General Recommendation 35: It urges States to take steps to ensure that “sexual assault, including rape, is characterized as a crime against the right to personal security and physical, sexual, and psychological integrity and that the definition of sexual crimes, including marital and acquaintance or date rape, is based on the lack of freely-given consent and considers coercive circumstances. Any time limitations, where they exist, should prioritize the interest of the victims/survivors and give consideration to circumstances hindering their capacity to report the violence suffered to the competent services or authorities.”  
  • Global Advocacy and Awareness: The Non-governmental Organizations (NGO) and international advocacy groups play a crucial role in raising awareness about the marital rape. They work to influence policies, challenge social norms, and advocates for legal reforms on a global scale. 

Whether Marital Rape should be Criminalized or Not:

As it is a matter of discussion that whether the Marital Rape should be criminalized or not. There are different reasons for the same which are discussed below: – 

  • Reasons for Criminalization- 
  • Human Rights Perspective: Criminalizing marital rape aligns with the principles of human rights, emphasizing the right to personal security, bodily autonomy, and freedom from violence. Recognizing marital rape as a criminal offense ensures that individuals within a marriage have equal protection under the law.
  • Victim Empowerment: Legal recourse empowers victims to seek justice and protection from abusive relationships. Criminalization acknowledges the trauma suffered by the victims and provides them with the means to escape abusive situations.
  • Gender Equality: Criminalization is seen as a step toward achieving gender equality. It sends a clear message that no one should be exempt from legal consequences for engaging in non-consensual sexual acts, regardless of their marital status.
  • Deterrence and Accountability: Criminalizing marital rape serves as  a deterrent, discouraging potential perpetrators and holding those who commit such acts accountable for their actions. Legal consequences can contribute to a reduction in the incidence of marital rape.
  • Social Norms and Awareness: Criminalization challenges societal norms that may perpetuate the idea that spousal relationships are exempt from legal scrutiny. It contributes to changing attitudes and increasing awareness about the importance of consent within marriage.
  • Consistency in Legal Framework: Treating marital rape as a crime ensures consistency in legal framework, removing any potential loopholes that might allow perpetrators to escape accountability based on their marital relationship.
  • Reasons Against Criminalizing Marital Rape: 
  • Cultural and Religious Beliefs: Opposition to criminalizing often stems from cultural or religious beliefs that emphasize the sanctity of marriage and family privacy. Some argue that legal intervention could interfere with deeply held cultural values. The former Chief Justice of India, Dipak Mishra, on marital rape said, “I do not think it should be regarded as an offence in India. In villages, it will create absolute anarchy in many families, and our country is sustaining itself because of the family platform which upholds family values.”
  • Privacy Concerns: Critics argue that criminalizing marital rape may infringe upon the privacy of individuals and their relationships. They contend that the State should not intrude into the intimate aspect of marital life.
  • Challenges in Prosecution: Some opponents argue that prosecuting marital rape can be challenging due to the intimate nature of the relationship, making it difficult to gather evidence and establish consent issues definitively.
  • Potential for Misuse: Concerns exist about the potential misuse of laws criminalizing marital rape, such as false accusations in contentious divorce proceedings. Critics worry that the legal system might be manipulated for personal gain.
  • Focus on Education and Counselling: Instead of relying on criminalizing, some advocates for a focus on education, awareness, and counselling to address the root causes of marital discord. They argue that prevention and support services are more effective in prompting healthy relationships.
  • Legal Reforms:  Some argue that the legal reforms are short of criminalization, such as revisiting spousal exemption clauses or introducing civil remedies. These approaches aim to address the issue without resorting to criminal prosecution. 

However, the opinions on the criminalization of marital rape vary widely, reflecting diverse cultural, social, and legal perspectives. National laws and policies on this matter are shaped by the broader societal values and ongoing discussions around consent, privacy, and human rights.

 

Judgments related to Marital Rape:

#Case: “State of Karnataka” vs “Krishnappa”, the Hon’ble Supreme Court stated that non-consensual sexual activities against a woman violates her right to privacy, further humiliating the victim, thereby violating Article 21 of the Indian Constitution.

#Case: “Arnesh Kumar” vs “State of Bihar”, the Supreme Court of India stated that many of the wives use the legal provision of Section 498A of IPC to file fake cases of cruelty against their husbands. This leads to the misuse of the laws which are gender biased as believed by the society at large. A large majority of people believe that criminalizing marital rape would disintegrate and destabilised institution of marriage.

#Case: “Bodhisattwa Gautam” vs “Subhra Chakraborty” (1995), the Supreme Court held that, Rape is not only a crime against the woman, but it is also a crime against the entire society. It destroys the whole psychology of a woman and pushes her into deep emotional crises and hence violates the Article 21 of the Indian Constitution.

#Case: “State of Maharashtra” vs “Madhukar Narayan Mardikar,” the Hon’ble Supreme Court said that, even a prostitute has a right over their own body and can refuse to sexual intercourse, however when it comes to married women, they are left with no choices as they are solely considered to fulfil the desires of their husbands and perform household chores.

Conclusion:

The legal remedies available for the victims of marital rape paly a pivotal role in addressing this egregious violation of personal autonomy and human rights and helps in breaking the silence surrounding this deeply personal form of violence. Criminal, civil, and human rights laws, coupled with support services and advocacy efforts, create a multifaceted approach to address the complex challenges faced by victims. By recognizing marital rape as a crime, we send a powerful message that no one is exempt from accountability, regardless of their marital status. The push for legal reforms, guided by principles of gender equality and a commitment to ending violence against women, is paramount. The international perspective highlights the need for a unified global approach, acknowledging that cultural nuances should not be a barrier to justice.

 

Reference: 

 

 

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