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Marital Rape: A Hidden Crime

Anciently, Raptus, the generic term of rape was to imply violent felony, applied to both property and person. It absolutely was involving sexual molestation and merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries. "The reason men don't want to forbid marital rape is because they don't want to give the woman the power to say no"[1].However will there be two yardsticks to outline rape - rape of an unmarried woman and that of a married woman? Is it acceptable to discriminate a woman just because she is married to the man who raped her. A man cannot be guilty of rape on his own wife when she is over the age of fifteen years, on account of matrimonial consent she has given which she cannot retract. But he has no right to enjoy her person without regard to the question of safety to her[2].In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual abuse by one's spouse accounts for approximately 25% of rapes committed. Criminal charges of sexual abuse may be triggered by alternative acts, which can embody venereal contact with the mouth, anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women. Women shall be particularly protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault[3]. Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. More than 80 percent of married women who have experienced sexual violence named their current spouse as the perpetrator[4].Marriage created conjugal rights between spouses, and marriage could not be annulled except by a private Act of Parliament—it therefore follows that a spouse could not revoke conjugal rights from the marriage, and therefore there could be no rape between spouses[5].

Status of Marital Rape In Hindu Scriptures

It is generally believed that the 'pristine' Hindu law particularly harsh towards women and denied them sexual and economic reform. These two freedom, in fact, are coordinate. The Hindu joint family structure based on male coparcenary, was the institution through which sexual control was effected by denying women the right to own property. In this realm of patriarchal domination, women were treated as chattels and upon marriage dominion over them was transferred from the father to the husband within the confines of perpetual tutelage.

In support of this premises, it is emphasized that Manu, the arc law giver of Hindu religion stipulated: 'A woman must be dependent upon her father in childhood, upon her husband in youth and upon her sons in old age. She should never be free[6]'. The strict sexual control was also affected through ordeals. Sita's ordeal by fire is set out an example. It is also believed that the modernity ushered in during the colonial rule and post-independence period helped to loosen out this strict sexual control by granting women the right of only divorce and property ownership.[7]

In English Law
During ancient times in English law, human entity includes both men and women but in legal entity there is no where mention of concept of women. They are taken as object to husband where husband has complete ownership over her and he is free to do anything over her. In legal concept all the actions are taken in name of men and women has no such right at that time. The seeds of male dominant society were sown long time ago. The women were not free to take their decision by own. From birth to till death they are dependent on someone i.e. father, husband and son. The main task with them is to manage family and do household work and nothing more than that. Where a woman cannot choose husband according to his will. It is very far to imagine about Matrimonial rights. Whenever the woman was subjected to cruelty she can't do anything because of lack of provision with that of patriarchal society. People who take advantage of male dominant society are demons.

Islamic Sexual Jurisprudence

Islamic researcher portrays that when a husband asks his wife to give sexual intercourse during her menstrual period, strange sexual position or fasting hours in Ramadan is term as marital rape. Anal intercourse amounts to marital rape. The Islamic sharia states that sexual conduct between man and wife should be conducted with love and intimacy and made a sign of compliance.

God stated in Quran that your wives are a place of sowing of seed for you, so come to your place of cultivation to plant a good crop because the consequence of this is to handled by yourselves. And fear Allah and know that you will meet him and give good tidings to the believers[8]. In Islamic law if wife hates her husband and deciding to leave then she should not be hasty in taking decision and encourages her to have some patience in order not to destroy family. For if you dislike them- perhaps you dislike a thing and Allah makes therein much good[9].

Prophet Mohammad exclaimed it is true that contract of marriage grants husbands the rights to intercourse with his wife but however this does not imply that these vested rights to be used in violently and forcefully manner. Marital rape does not warrant a hadd punishment. Some mistakenly believes that hadd punishment only ones exist in Islamic law. Even if offence does not fall under categories of hadd punishment still judge has right to punish person.

Hence, Islam approves what is called marital rape.

Legal Perspective
The first document regarding marital rape occurred in 1736. At that time, Sir Matthew Hale, who was the chief justice in England, published the following in the History of the Pleas of the Crown (Hale 1736)"But 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 up herself in this kind unto her husband, which she cannot retract"[10]. This statement becomes common law-marital rape exemption, under which husband could not be prosecuted for raping his wife.

In present context section 375 of Indian Penal Code, 1860 defines rape under it in second exception it is explicitly mention that sexual intercourse by a man with his own wife, the wife not being under the age of fifteen years of age is not rape. It is very clearly stated that marital rape is not an offence in territory of India. The criminal law has exempted rape within marriage. Section 376 states punishment of rape nowhere mention of marital rape.A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar requested that the Centre react to petitions looking for presentation of Section 375 of the Indian Penal Code (IPC) as illegal on the ground it victimized wedded wife being sexually attacked by their spouses[11].The exception is "unconstitutional and violate of the Right to Equality guaranteed to married women under Article 14 of the Constitution as it decriminalizes rape when the perpetrator is the lawfully wedded husband of the victim.

In J. Verma committee report on amendments to criminal law dated January 23, 2013 recommended the marital should be criminalized. Marriages should not be considered as implicit consent to sexual act. Constrained sexual action by spouse ought to be dealt with similarly as an offense similarly as any physical brutality upon his better half. This committee was formed to look into possible amendment of criminal law to provide for quicker trail and enhanced punishment for criminals committing sexual assault of extreme nature against women. The criminal law (amendment) act 2013 came in 3rdFebruary, 2013 which has added many thing in section 375 and 376 of IPC but it doesn't touch the exception of marital rape from definition of rape.

Conflicts In This Concept
Prior to substitution by section. 9 of the criminal law (Amendment) Act 2013, section 375(sixth) stood as: a man is said to commit rape with or without her consent, when she is under sixteen years of age. Subject to certain exception sexual intercourse by a man with his own wife, the wife shall not under fifteen years of age is not rape. Forthwith, section 375(sixth) states a man is said to commit rape if with or without her, when she is under eighteen years of age. Subject to certain exception sexual intercourse by a man with his own wife, the wife shall not under fifteen years of age is not rape.

The government decided to raise the age from 16 to 18 years of consent when a girl is capable of consenting sex. The possible construction of this is, any sex with a girl below the age of 18 is statutory rape, and even she gives consent. By increasing the age of consent the government has easily made prosecution of rape charge on boys by the parents of girl below 18 in consensual relation. An investigation found that 40% of all rape cases dealt with consenting couples where girl was minor and her parents accused her boyfriend of rape.

The main controversy arises when the girl is wife. India has the highest number of child brides in world. The legal age of marriage is 18 for girls. The protection of children from sexual offence act (POSCO), 2012 says it an offence to have sexual intercourse with any woman of under 18 year of age. Section 375 of IPC exemption state that it is legal to have sex with your wife above 15 years of age. Now what will happen to girls in between age of 15-18 when they are forced into marriage illegally. There is clearly contradiction of laws arises, the exception clause of IPC for act within marriage complicates POSCO enforcement. It is very essential to amend IPC provision to bring consonance with POSCO.

Under Indian legal system, child marriage with minor is only voidable and not void ab initio. The Supreme Court resolved a serious legal contradiction regarding child rape in. The court states that exception clause of section 375 of IPC allowed men to have sexual intercourse with girl aged 15-18 and escapes punishment for rape if they were married to them. The court further stated that differentiating girl child on its marital status is completely illogical and ran against provision of POSCO act. This also violates right to dignity and liberty under Article 21 of constitution. Irrespective of marital status sex with minor is punishable offence and from now will attract minimum rigorous imprisonment of ten years.[12]

Reason Behind Continuity With Question
Marriage is understood as agreement where husband has control over his wife life which explicitly states that control over her sexuality is only part of greater control that he has in all other areas concerning her[13]. The property to be withheld with a famine is her virginity. Succeeding this line of logic, a female is first the property of her father, then upon solemnization of marriage is property of husband. Therefore, a man could not be prosecuted for raping his own wife because she is his possession. Most religious doctrine highlight sexual act as a "duty" for wives. Due to this blind belief they are more likely to accept marital rape because they fear being labelled as "sinner" and can be forced to leave society if they oppose it, even their own parents opposed it— "oh the shame, what will people say.

The government under the delusion that marriage is a sacrament in India has taken one of the most regressive step by not acknowledging marital rapes. The irony is that marriage is sacred in India but it is completely legal to rape your wife. Many people believed that if marital rape made a crime then it would result in unnecessary break up of marriages. As it will provide one more way toward divorce. Societies such as India condemn and penalise sex outside of marriage often force men into marital relationship only for free access to physical consummation, which put women under incredible sexual threat.

Marital rape also not applied because of factors like poverty, illiteracy, religious belief etc. Our cultures, our languages define rape only as loss of virginity or loss of honour using slang 'Izzat lut jana' and this can only happen if an unmarried woman is attacked by an outsider, or a married woman by someone other than her owner/husband. After all it is the family' sizzat that she bears in her body, maiden or wife. This is also the major source of the social stigma and shaming of the survivor. After all she, and by extension her family/clan, has been dis-honoured.In other words, a woman loses her fundamental rights as soon as she chooses to enter wedlock (in the world's largest democracy, as we like to boast).

It is very difficult to prove marital rape. The prosecution of marital rape meets with problems on the procedural level. When the case goes to Court, there is difficulty in proving that the rape took place. The reason is clear that sexual relations are to be expected in a marriage. Thus, if the defence claims consent from the victim, the evidences are very difficult to provide. The primary evidence is the act was not-consensual using DNA samples as evidence can be forged. Marital rape can not be happen in isolation there will be history of violence and physical abuse, and it will fit into the cumulative impact of domestic violence but just because something is difficult to prove, it doesn't mean that we can't have law against it.

Also, there is huge possibility that marital rape would be misused and based on an abundance feeling that vengeful wives are waiting for an opportunity to send their husband to jail and it will be easy tool for harassing husband. The various High Courts had observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-law) of IPC.

Abroad Prospective: A Comparative Study
Countries which were early to criminalize marital rape were Soviet Union(1922) followed by Poland (1932) andCzechoslovakia(1950).Netherlandsmade it illegal in 1991with that in Europe, Finland outlawed marital rape in 1994 following Germany outlawed it in 1997.In December 1993, the United Nations High Commissioner for Human Rights consider marital rape as a human rights violation. In 1995, countries representing the U.N.'s Women's Conference vote for a resolution which held that wife has right to refuse to the sexual demands of their husbands[14].

Marital rape is illegal in 19 American States, 4 Australian States and New Zealand.During, 1993 Marital rape becomes crime in all 50 states of U.S. Australia, under the influence of feminism passed reforms in 1976 that made rape in marriage a criminal offence.

Around 105 countries in world where spousal rape is criminal offence some of them are Bhutan, Brazil, Canada Germany, Japan, Nepal and Switzerland. Approximately 46 countries where spouse rape is not criminal offence including China, Bangladesh, Afghanistan, Egypt, Malaysia. Nearly 2.6 billion famine resides in a country where marital rape is legal. Around 80% of developed country has criminalised marital rape and 70% of developing nation has not criminalised it.

Marriage After Rape: An Inappropriate Solution

This term seems conflicting but somewhat its not. This can be termed as pre-marital rape. The marry your rapist law is a legal way to escape from punishment and prosecution of rape. Many women do not report sexual assault because of shame, and possibility of being discarded by society. Traditionally, the marriage between victim and accused after rape was often seen as an appropriate resolution of situation. So, the best option available to victim is to settle a deal in marrying victim. The family of both agree on marriage and here victim escapes from punishment.

Ancient scholars believe that women was considered property of her father. If she was raped, she was considered damaged property so the rapist must either pay compensation or accept the damaged goods and marry the victim When a woman is raped how she can give consent to marry same man who raped her. The possible answer is, she preserves her family fame and and possibly of being murdered by a fellow family member. Virginity is highly priced so victim don't have any other choice available because no man will possibly interest in marrying rape victim. Marriage is view to re-establish rape victim in society.

In session's court in Delhi, the rapist who had scoop out the victim's eye, proposed that he be allowed to marry his victim 'to wash off her stigma and re-establish her in society. Strangely, instead of criticize the accused for such a humiliating proposal the judge took up the offer and delayed the judgment giving the victim time to consider. The victim boldly refused, stating, "How can I accept a man who has handicapped my very sense of being, more than my physical self, as my husband." She went on to say that the rapist's offer "is to further humiliate, insult and denigrate my dignity." the judge then awarded life sentence to the rapist saying that the last minute marriage offer was mala fide[15].

Under the influence of society trap rape victims agrees to marry accused. So, what will be surety of not being raped again. Definitely, there will infinite chance of being raped because sexual assault is done also so the probability of happening it increases by 60%. India's Penal Code legislation makes it amply clear that marriage does not act as an absolving factor in case of rape.

Legal remedies do women have

Women have absolute right under section 498(a) of IPC, 1860 which cover any kind of physical or mental or emotional harassment is explained as cruelty. Cruelty under this section means any wilful conduct which is of such nature as it is likely to drive woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of woman. The punishment prescribed is imprisonment for a term which may extend to three years and shall also be liable to fine. Marital rape is recognised as criminal under criminal and personal law, allowing women to punish an abusive husband and leave him[16].
Marital rape can also be grounds of cruelty for divorce under personal law. The cruelty means to cause a reasonable apprehension in the mind of petitioner that it will be harmful or injurious for the petitioner to live with other party[17]. Where a husband shows ill-treatment, use of abusive language and allegation of sexual abuse and in general have the effect of demoralising the spouse causing mental stress and agony resulted in divorce[18].

In Domestic Violence Act, cruelty is described in various ways like economic violence of not giving financial stability to wife, physical violence leads to torture and beating, emotional violence includes humiliating her body or her parents. It also includes sexual violence. Domestic violence is a civil law and it gives remedy. Women can ask for protection and maintenance even they can ask for a restraining order against their husband but they do not face jail time. National Family Health Survey, which found that 1 in 3 women faces mental, physical and verbal domestic violence. According to decade of 1675 abused women, only 45% women went to police.

Non-criminalisation of marital rape violates Article 21, pointing out that enough safeguard in form of criminal and personal laws exists to ensure that wife isn't forced to stay with an abusive husband.

Prostitution: An Alternate Option

Possibly, till some extent prostitution also contributes major factor towards marital rape. Where man can have intercourse with prostitute in some amount of money having consented where she also enjoys the company of man and with that money she run her daily livelihood. In this case both are happy and there is no violation of any human rights where man gets satisfaction without violating right of any other person (raping others) while prostitute earns her daily wages. Decriminalising prostitute can reduce the rape and sexual abuse by 30-40 percent in the first two years of the zones opening where street prostitute could legally work[19]

India has legalised prostitution till some extent while the activities like brothels and pimping are abolished. Our country is lacking behind in these activity and engaged in society culture trap. Prostitution give free access to men to satisfy their need where a man is single or where wife of married man refuses to satisfy desire. This can be best alternative option instead of going against the will of women to satisfy hunger. This will enrich the men with complete satisfaction instead of raping her wife against will and imposing male force on her. The rape not only leaves a scar marks on the body of victim but it corrodes the soul from inside. Why to force someone who does not want to engage in sexual activity? instead you can have sexual activity in some amount of money with prostitute.

India still fears shame to engage in prostitute activity because of social culture but still not fears to rape women. Where a man visits and check himself that no one should see him in red-light area is better than a man who rape his wife shamefully. When a person frustrates from his daily life. He wants to spread his frustration over someone to calm down. It is natural that person attract towards opposite gender there is nothing wrong in it. But if it takes places against the will female then there is definitely wrong in this whether the female is married or not. The thing lacking behind is awareness and lack of intellect mentality.

Conclusion
In India there is somewhat concept of male dominating society due to which we are lacking in provision. Here, people compromises their happiness for society. They are too much concerned about their image in society. Instead of thinking that they can accept it or not they think whether society will accept this or not. Women generally here of tolerating nature. They can tolerate and accept every wrong done to them but will not take any kind of legal help and still withhold family to make society think positive about them.

Possibly, the society is equating the rape with virginity of women. Many jurist exclaimed that marriage means to give virginity of women to husband. In marital case women already loses her virginity with husband so, thereafter forceful intercourse with women cannot be consider as rape because the virginity of women had already taken by her husband. Many survey shown that the worst form of violence is invariably sexual violence and rape.

Marital rape is not fully criminalised in India. It is even more traumatic for woman to stay with assailant every day. The consequence of marital rape are very high, there is clearly an urgent need to penalise it. The loopholes is in both law and society.

The problem is not men. The problem is not marriage. The problem is patriarchy. Are we willing to dismantle it?

End-Notes
[1]ICRW (International Centre for Research on Women).
[2]Huree Mohun Mythee, (1890) 18 Cal 49.
[3]Fourth Geneva Convention.
[4]National family health survey 2018.
[5]East'sTreatise of the Pleas of the Crownin 1803.
[6]Flavia Agnes,Women & law in India, 11 (2016).
[7]Ibid.
[8]Chapter 2 Verse 223 in Surat Al-Baqarah, Quran.
[9]Chapter 4 Verse 19 in Surat Al-Baqarah, Quran.
[10]Maria Pracher,The Marital Rape Exemption: A Violation of a Women 's Right of Privacy,Volume 11 Issue 3 Women's Law Forum, Golden Gate University Law Review.
[11]Delhi HC To Centre: How Do You Justify Marital Rape As Legal,The Hindu, pg. 5 (Delhi, 19/07/2017)
[12]Ms. Eera Through Dr. Manjula vs State,Criminal appeal no.1217­1219OF2017, (Govt. Of NCR of Delhi, 21/07/2017).
[13]Marital rape,Times of India, available athttps://timesofindia.indiatimes.com/, last visited on 04/06/2018.
[14]Declaration on the Elimination of Violence Against Women.
[15]State vs Raj KumarSessions Case Number: 60 of 2013.
[16]Abhinav Garg, Marital rape already recognized as cruelty under law: Delhi, TOI, pg.nu. 10 (Delhi 19/01/2018).
[17]Cl (b) of S.10(1), The Hindu Marriage Act, 1955.
[18]Jayachandra v. Aneel Kumar (2004) 10 SCALE 153.
[19]UCLA study, Baylor University.

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