DEMYSTIFYING ‘CONSENT’ IN MARITAL RAPE IN INDIA
Author: Sujatha Toppo, III year of B.A.,LL.B from Sai Nath University Ranchi Jharkhand.
Rape is an illegitimate act, whether the perpetrator is one’s own husband or not, should not matter. In such cases, it is the consent of the woman that plays an important role. Such a crime should not be left unacknowledged and should not be deemed legitimate by an entire country’s population. Martial rape is seen as an exception to the law that criminalises rape, thus, legitimising it.
Martial rape is one of the most evil acts which exist in India. Marital rape is no lesser than the offence of rape rather it is the species of rape. Married women are generally the victims of marital rape. It is one of the biggest threats to gender justice in India. It is one such social evil which has existed in India since ancient times and still continues to raise havoc in the country. India society has never considered marital rape as a problem. It is rarely opposed by anyone is the Indian society due to a variety of reasons. The attitude of Indian legislature is no different in this regard. But the legislature is not interested at all in eliminating the evil of marital rape from the country. There are no effect laws in India as far as marital rape is concerned. Whatever laws are there in India they are not good enough to contain something as evil as marital rape. There is need to bring some strong laws to bell the cat of marital rape in India.
Marital rape can be defined as an act of sexual intercourse by a married person with his/her spouse without obtaining consent. The necessary element is the absence of consent and it is not necessary that is involves any kind of physical various. However, legal definition varies within the United States where the marital rape can be defined as any unwanted intercourse or penetration (veginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent.
Domestic violence has gained increasing recognition due to the efforts of the feminist and battered women’s movements. Rape, too, has been reconceptualized to some degree, with more widespread acknowledgment of date and acquaintance rapes that do not fit the traditional ‘Stranger rape’ profile. But spousal sexual abuse, which combines the elements of domestic violence and rape, has failed to attract the same attention or support.
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without their consent. The lack of consent is the primary defining factor and the act need not involve physical violence. Although marital rape is now widely seen as a form of sexual violence, historically, sexual intercourse within marriage was regarded as a spouse's right.
In India marital rape of an adult wife, who is officially or unofficially separated from her husband, is a criminal offence punishable by 2 to 7 years in prison. According to the Protection of Women from Domestic Violence Act, other married women subject to “Sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women” by their husbands may request financial compensation from their spouses, including allowances and child custody. However, marital rape is still not a criminal offence and remains a misdemeanour.
Law and Society: Restricting of Marital Rape in India
The infamous case of Phulmoni Dasi wherein an eight years old child died of excessive bleeding due to sexual intercourse by her husband at the time. But the husband was convicted, not for rape, but for ‘causing grievous hurt by doing a rash and negligent act dangerous to life’ with one year of imprisonment. The following two points from the judgment helps analyse the general attitude towards marital rape and how it is relevant even now.
“The branch of the law which has no connection with this case is the law of rape.”
“The law, it is true, is exceedingly jealous of any interference in matters marital, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity.”
These two points recognize the most common perspective of the legislation and the judiciary. The Protection of Women from Domestic Violence Act, 2005 in its definition of domestic violence, includes among other things, sexual abuse which defines as, ‘any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women'.
Both these laws seem to be contradicting each other because rape can be said to be a ‘conduct of a sexual nature that abuses, humiliates, degrades or violates the dignity of a woman'. Both the laws make it absolutely ambiguous and need to be fixed. Interestingly a legislation against marital rape came into being without actually calling it ‘marital rape’. Thus, the hesitance to interfere into the sexual life of a married couple and to name it after a heinous crime as such of a rape.
Marital rape: Demystifying ‘consent' within Marriage
All India Democratic Women’s Association, and two individuals have been clubbed together and are currently being heard by a bench of the Dehli High Court. These petitions deal with a singular issue- ‘criminalization of marital rape.
‘Mens rea’ is the mental element necessary to constitute crime except in strict liability offences.
Marriage is a social institution that stemmed from the need to regulate human sexual behaviour i.e. restrict unlimited polygamy and polyandry. Thus necessarily implied unlimited and exclusive sexual access to one’s spouse. What was contemplated was conjugal bliss for both, not the man alone and this was meant to be Mutually pleasurable. When one party objects the other has to respect that. You cannot except them to put up with unreasonable demands for unilateral quirks or fantasies that the other spouse doesn’t want. Our courts have held that denial of sex amounts to mental cruelty which can be a ground of divorce.
The Indian Government in order to protect women from enacted/amended many laws as time passed. But it slows itself in enacting the laws against the horrible crime against the women by their own husband’s known as marital.
In the light of equality, the law must amend section 375 and mention that a relationship of marriage or any other relationship is not a valid defence for rape. There should also be a separate section that criminalises the offence of marital rape so that victims do not have to take recourse under the Protection of Women from Domestic Violence Act 2005.
As the consequences of marital rape are really high, there is clearly an urgent need for Criminalization of the offence of marital rape. Positive legal change for women in general is happening in India, but further steps are necessary so that both legal and social change takes places.