BY SAURABH MISHRA & SARVESH SINGH.
The idea of the ‘sacrosanct’ institution of marriage dished out by the mainstream Indian cinema is a myth and is contrary to women’s perceptions of reality. Cries of despair, indignation, humiliation and protests emanate from them more than melodies with romantic lyrics. Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. Marital rape is a violent act of a husband motivated by a desire to control and have power over his wife. It is the deprivation of sexual self- determination. It is a man’s fantasy and woman’s nightmare. It is all the hatred, contempt, and oppression of women in our society concentrated into one violent act. Social practices and legal codes in India mutually enforce the denial of women’s sexual agency and bodily integrity, which lie at the heart of women’s human rights. Rape is rape. The law does not treat it as a crime. Even if it does, the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must be forced to accept rape within marriage as a crime. .
Physical and psychological effects of marital rape
Despite the historical myth that rape by one’s partner is a relatively insignificant event causing little trauma, research indicates that marital rape has severe and long-lasting consequences for women. The physical effects of marital rape may include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Women who have been battered and raped by their husbands may suffer other physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence. Specific gynecological consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases, including HIV.
Women who are raped by their partners are likely to suffer severe psychological consequences as well. Some of the short term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post- traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, problems in establishing trusting relationships, and increased negative feelings about themselves. Psychological effects are likely to be long lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and emotional pain for years after the violence.
In the United States researchers estimate that 10% to 14% of married women experience rape in marriage. When researchers examined the prevalence of different types of rape, they have found that marital rape accounts for approximately 25% of all rapes. Despite the prevalence of marital rape, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and larger society as a whole. In fact, it was not until the 1970s that society began to acknowledge that rape in marriage could even occur.
Till recently, the general rules was that a husband could not be convicted of the offence of raping his wife as he is entitled to have sexual intercourse with his wife, which is implied under the contract of marriage. In 1993, marital rape became a crime in all 50 states under at least one section of the sexual offense codes. However, it is remarkable that only a minority of the states have abolished the marital rape exemption in its entirety. In most American states resistance requirements still apply. In 17 states and the District of Columbia, there are no exemptions from rape prosecution granted to husbands. However, in 33 states, there are still some exemptions given to husbands from rape prosecution. When his wife is most vulnerable [ e.g., she is mentally or physically impaired, unconscious, asleep, etc.] and is legally unable to consent, a husband is exempt from prosecution in many of these 33 states.
In England, earlier as general rule, a man could not have been held to be guilty as a principal of rape upon his wife, for the wife is in general unable to retract the consent to sexual intercourse, which is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in 1991. The House of Lords held that the rule that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse against her will was an anachronistic and offensive common law fiction which no longer represented the position of a wife in present-day society, and that it should no longer be applied.
In New Zealand, the marital exemption was abolished in 1985 when the present section 128 was enacted. Subsection [4] now provides that a person can be convicted of sexual violation in respect of sexual connection occurred. Further, the fact that the parties are married or have been in a continuing relationship will not warrant a reduction in sentence. There is now, therefore, no distinction in principle to he drawn between sexual violation in marriage and outside of marriage.
In India marital rape exists de facto but not de jure. While there have been some advances in Indian legislation in relation to domestic violence this has mainly been confined to physical rather than sexual abuse. Women who experience and wish to challenge sexual violence from their husbands are currently denied state protection, as the Indian rape legislation under section 375 of the Indian penal Code, 1860 has a general marital rape exemption. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th Century England. Hale wrote, “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 herself in kind unto the husband, which she cannot retract”. This established the notion that once married, a woman does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a ‘license to rape’ their wives.
Only two groups of married women are covered by the rape legislation – those being under 15 years of age and those who are separated from their husbands. While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years of more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim. Some progress towards criminalizing domestic violence against wives took place in 1983 when Section 376A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code [Amendment] Bill, 1972 and the Law Commission of India. The Committee rejected the contention that marriage is a license to rape. Thus a husband can now be indicted and imprisoned up to 2 years if, firstly, there is a sexual intercourse with his wife, secondly, without her consent and, thirdly, she is living separately from him, whether under decree or custom or any usage. However, this is only piece-meal legislation and much more needs to be done by the Parliament as regards the issue of marital rape. When the Law Commission in its 42nd report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope. A joint committee that reviewed the proposal dismissed the recommendation. The committee argued that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package. As of now, the law in India is wholly inadequate in providing supporting mechanisms for women to exercise bodily integrity and sexual autonomy.
The committee argued that a husband could not be found guilty of raping his wife.
The Co-Authors are Students in IVth year B. A. L. L. B. (Hons.) National Law Institute University, Bhopal.