Marital Rape The problem of burden of proof.

June 3, 2023

This article has been written by Adv. Aniket P. Kamtam, a 2nd Year MBA-LAW Student from SVKM’s NMIMS SBM College, Vile Parle West.

Back’s Law Dictionary Meaning for Marital Rape: A Husband’s sexual intercourse with his wife by force or without her consent. Marital rape was not a crime at common law, but under modern statutes the marital exemption no longer applies, and in most jurisdiction a husband can be prosecuted for raping his wife. Marital rape is also termed as Spousal rape.

And

Rape means: At common law, unlawful sexual intercourse committed by a man with a woman not his wife through force and against her Will.

Marital means: Of or relating to the marriage.

Ramanatha Aiyar’s Concise Dictionary meaning of Marital Rape: The Act of having sexual intercourse with a wife by her husband without the consent of his wife.

And

Rape means: Rape is the carnal knowledge of women without her Consent. It must not only be obtained by force and threat, but without the consent and against her will. It must be forcible and against the will of the Prosecutrix.

Rape in its simplest term is ‘the ravishment of a women, without her consent, by force, fear or fraud’, or ‘the carnal knowledge of a women by force against her will’. [1]

Marital Means: Relating to, or connected with, the status of marriage pertaining to a husband.

After going through this all sophisticated meanings the most importance lies in the word Marriage. What is marriage? It differs from state to state, sect to sect. In Hindus (Jain, Sanatan, Sikh) marriage is the eternal merger of two souls by religious ceremony with scientific connotation to the rituals and the couple is termed as better half of each other. Were as sects other than Hindus the marriage is the contract, between men and women. The two enjoy the term partners for their rest of life.

Now the question arise how can a partner and the one better-half can hurt the other partner and other better-half.

Under Hindu marriage couple is counted as one entity for all the customs and rituals. The purpose of marriage whether as contract or merger is to have a valid carnal sex and Reproduce offspring. The sole purpose of marriage is to have sex and carry forward your descendants.

As per our definitions of marital rape India being a common law country the marital rape was never considered as the offence of strict rape. The law itself gives the hope that the couple can have the carnal sex without being in the consent of either party.

Now let’s turn to the Topic what is the marital rape is considered as rape in common law country like India. Whether it will be Cognizable offence or non-cognizable offence, Bail able or non-bail able, punishment will be reformative or deterrent (capital punishment).

Who will have to the burden of proof? This is very dice grey area because on one hand law permits the marriage for the sole purpose of sex and on other hand it is terming the non-consensual sex between husband and wife as offence of rape.

Now let’s turn for a moment toward law, Section 375 of Indian Penal Code which Defines Rape in its definition, it has given exception to the acts which will not be termed as rape. And that exception is Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. We cannot hold victim-offender connection for every rape regardless of husband-wife connection. Families are the most powerful institution for the building of human kind and Husband-wife are the vital element for constituting the family, if this institution it-self is put in the well of offensive definition there won’t be healthy family institutions.

Again let’s come to the burden of proof: a couple enjoys the right to privacy irrespective of the legal wedlock. Now who can investigate what happened in the wedlock because unless the investigation is happened you can’t conceptualize the burden of proof. And the evidence to the commission of offence shall be corroborative. It is very critical for the Forensic science to prove that the elements of marital rape occurred in the respective couple. It may also be happen as per Section- 375 of IPC that women have consented for the Acts as specified in 375 (b) and not for 375 (a) here the forensic science will have to prove the presence of the husband at the spot.

The definition of the Rape in IPC, if linked to define the marital rape then the burden of proof moves as per the pendulum because the definition itself is so vague and dynamic that it will pass on the burden from one party to other as.

It can perhaps be a scenario that due to the marital rape the mental and physical health of the wife may get deteriorated but that can’t be a rape and can be inserted for the grounds of divorce. It is very emotional intelligence of the judges of India who have escalated the marital rape but the law is not the judges who makes by his own intelligence but the society which accepts unitedly.

The problem of burden of proof lies with the Intent of the interpreters who are able to sympathies but aren’t able to come up with the legal mechanism to tackle the Marital rape. The problem is not with regard to the trial of marital rape offence but proving of some sexual injurious occurrence in the legal wedlock on the wife. Problem for state with regard to burden of proof is who should recognize the Marital rape whether judiciary, parliament or Executive.

In the civil law countries like Australia were marital rape is criminal offence and the burden of proof lies on the prosecution to prove, in Australia a wife’s testimony with the forensic science evidence of occurrence of rape is enough to prove the marital rape has occurred, the proof of the consent is irrelevant.

Problem of Burden of proof can be tossed with the phrase that ‘devil lies in the details’, here the detail is that whether the couple was co-partnering each other joyfully within the eyes of the society because at the end it is the society which matters for the crime or Anti-Crime actions.

In country like India were the personal law also prevail and if any Muslim men is convicted for marital rape won’t it violate the right of the man’s other spouse, other than the alleged. Because in Muslim law a person, men practice bigamy and in this situation if he is in punitive detention for marital rape by one of his wife then it will jeopardize the right of other wives to leave peaceful and joyful life. This situation shall be read in the light of Revathi Vs Union [2] of India case, it was brought before the court that adultery committed by two people with consent of each other destroyed the life of the spouse of person convicted of adultery.

The problem in marital rape is to eradicate the concept of so-called rigid patriarchal society that a wife is an object of her husband, but should also care not to be create anarchy in families.

“Because some country has made marital rape an offence… I don’t think it should be regarded as an offence in India. In villages, it will create absolute anarchy in many families. Our country is sustaining because of the family platform. We still have family values… we still respect the family background and many other facets” [3] statement by Retired Chief Justice of India Deepak Misra.