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If Any Rape Is A Crime So Why Is Not Marital Rape?

Marital Rape means any unwanted sexual act by a spouse that is committed without the other person's consent, such illegal activity are done by force, threat by force, it is also known as spouse rape .the marital defense to rape was first time justified in the case r vs r [1991] ukhl12 Because law of most of the countries is based upon the one statement i.e.; a husband cannot rape his wife by sir Mathew.

Most of the time it is considered as civil offence even in India marital rape is not criminalized, section 375 of IPC, has enchoing very archaic sentiments mentioned as its exception clause (2) a sexual intercourse by man with his own wife who crossed the fifteen year of age, is not a rape, now SC changes the age from 15 to 18 in case independent thought vs union of India.

Yes under section 376 punishment is provided but what about those who cross the age fifteen? even domestic violence act 2005 has also be a dissatisfactory ground, it only provide civil remedy and section 122 of Indian evidence act also provide a ground that shows a marital rape is never be considered as offence because it prevent communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other.

So we can say that in India marital rape is exist as de-facto but not de-jure while in other countries marital rape has been criminalized, so for this reason recommendation 172nd law commission report should be singed because it provide various relative aspect i.e.; exception 2 of the section 375 of IPC should be deleted because It effect article 14. it is not a reasonable classification and violate the protection granted under article 14,
.it effect the article 21 right to live with human dignity, so the punishment of marital rape should be the same as the punishment for rape under section 376 of IPC, and law should be a hard and strict so that no women suffer daily rape.

Introduction
The word rape is derived from the Latin term Repio which mean to seize thus rape literally means a forcible seizure. It signifies in common terminology, as the ravishment of a women without or consent, by force, fear, fraud, against his wife.

Rape is violation with violence of privacy of women

According to the section 375 of Indian penal code -A man is said to commit rape If he:
  1. Penetrates his penis, to any extent ,into Virginia , mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
  2. Inserts, to any extant ,any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person: or
  3. Manipulates any part of the body of a women so as to cause penetration into the vagina, urethra ,a nubs or any part of the body of woman or make her to do so with him or any other person: or
  4. Applies his mouth to the vagina, anus , urethra no a woman or makes her to do so with him or any other person

Exception 1:
A medical procedure or intervention shall not constitute rape.

Exception 2:
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen year of age , is not rape.

Marital Rape means any unwanted sexual act by a spouse that is committed without the other person's consent such illegal activities are done using force, threat of force , intimidation or when a person is unable to consent . the sexual act include intercourse ,anal, oral sex ,forced sexual behavior with other individual and other sexual activities that are considered by the victim as degrading, humiliating, painful & unwanted, also known as spousal rape.

Marital Rape, Spousal Rape, Partner Rape happens between two persons who are married.

According to incest and abuse national network sexual act committed without a person's consent & against person's will when the perpetrator is the individual's current partner ( married or not ) previous partner, cohabiter.

Types Of Marital Rape:

  1. Battering Rape:
    Battering rape occur when physical and sexual violence occur together. The rape may occur after physical violence as an attempt to make up.
     
  2. Force only Rape:
    this type of rape happens when physical violence is not presented. As with all rape, this type of spousal rape control over another person.
     
  3. Obsessive / sadistic Rape:
    this type of rape involved torture or perverse sexual acts. This type of marital rape tends to be very violent and result physical injuries.

Historical View
While it has been illegal at all time for a man to force sex upon a woman other than his wife a husband could force sex upon his wife without violated the law unit very recently. The justification for this marital rape.
The British common law view that the contract of marriage include the husband's right to sex the wife having given consent for all time by entering the contract. The traditional view of wives as the property of their husband with which they could do as they pleased under common law the public interest in promoting privacy & harmony in marital relationship which discouraged the state from interfering in relationship.

In 1857, Case Massachusetts was the first in U.S to recognize the contract justification for the marital defense to rape. The right of a husband to sex with his wife also provide husband with ground of divorce if his wife refuse sex. This defense became part of the rape law in the every state.

Weishaupt vs Commonwealth as SC of Virginia has noted it is hard to imagine how charging a husband with the violent crime of rape can be more disruption then violent act itself.

The definition a husband could not rape his wife the view that husband cannot be charged with the rape of his wife was discarded by sir Mathew hale4 (1609-1676) in history of the pleas of the crown publish in 1736.

National Scenario

Not surprisingly, thus married women were never the subject of rape law. Law toward an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation.

Section 375, the provision of rape in Indian penal code 1860 has very archaic sentiments mentioned as its exception clause- 'sexual intercourse by man with his own wife , the wife not being under,15 year of the age, is not rape' but in case independent thought vs union of india extend the age from 15 to 18 years.

Sec 376 of IPC provide punishment for rape, according to this section the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 year but which may extend to 10 years and shall also be liable to fine unless the women raped is his own wife and is not under 12 year of age, in which the case, he shall be punished with imprisonment of either description for a term which may extend to 2 year with fine or both.

This section deals with marital bond stand only if the wife is less than 12 year of the age if once she crossed the 16, there is no legal protector accorded to the wife in direct contravention of human right. There is no remedy of women beyond the age 16.the much awaited domestic violence act 2005 also a disappointment. It has provide civil remedy to what the provision of cruelty already gave criminal remedy, while keeping the status of the matter of marital rape. section 3 of dva , among other things in the definition of domestic violence has included any act causing harm, injury, anything endangering health, life though mental , physical and sexual.

Section 122 of Indian evidence act prevent communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other, the evidence is inadmissible although relevant unless it is prosecuted for terry, or some related physical or mental abuses under the provision of cruelty. Selling out to prove the offence of marital rape in court, combining the provision of dva and ipc will be nearly impossible task.

Foreign Legislature

Marital rape is considered illegal in so many country, Australia, America, Canada, Israel France, Sweden, Denmark, Norway, Soviet Union, Poland.

India is a state party & has ratified the convention on the elimination of all form of discrimination against women (CEDAW) article 1 of CEDAW define discrimination against women as any distinction , exclusion or restriction made on the basis of sex , irrespective of their marital status.

And sec 375  exception 2 is therefore, inconsistence with article 1of CEDAW.

Article 2(a) of CEDAW categorically encompasses marital rape as violence against women.
Austria provide punishment up to 15 year imprisonment
Brazil has criminal code for marital rape
Canada first criminalized first in 1983
Vietnam criminalized 2(1) e of law of domestic violence prevention and control
In California, there are separate criminal offence for rape Art(261))and for spousal rape art (262)

Judicial Precedent

R VS. R [1991] UKHL 12
The case come before Mr. justice owen and a jury at leicester crown court in July 1990.the judge reject the submission on the behalf of the defendant that he could not be found guilty of rape due to the marital rape,
R appealed to the conviction for rape to the court of apple (criminal division).

An unusually large penal of five judge the lord chief lord lane, the president of the family division stephan brown, lord justice Watking Neil & Russeil Lord Lane delivered the judgment of the court in march 1991, dismissing the appeal he outline three possible outcome to the legal issue:
  1. First a literal approach, that it was always impossible for husband to rape his wife.
  2. Second a compromise approach, that rape was only possible in case where a wife presumed consent was deemed to be negated, with an expanding and open ended list of possible exceptions.
He was not in favor of either of those outcome and instead he adopted the third solution, one of more radical reform, abolishing the legal fiction of a marital rape exemption.

R appealed again to the house of lord. Legal argument were heard by five judge bench in July 1991, Lord Kinkel, Lord Brandon Of Oakbrook, Lord Griffith, Lord Ackner & Lord Lowry. In October 1991, Lord Keith Of Kinkel delivered the leading speech with which the other four lord are agreed. He stated that the contravention performed in the earlier cases in order to avoid applied marital right exemption were indicated of the absurdity of the rule.

He referred to case under Scottish law in which the HC judiciary held that there was no marital rape exemption in Scottish law, even if the married couple was cohabited ; in the case, Lord Justio Geners, Lord Emslie questioned if marital rape exemption was ever part of Scottish law but even if it was concluded that there was no good reason for it to continue.

The house of lord also considered whether the word unlawful in the definition of unlawful rape in the sexual offence. Amendment act 1976 include marital rape. as all rape was consider illegal under the act. with regard to the marital rape exemption lord keith agreed with the court of appeal that the marital rape exemption was common law fiction and ruled that in modern time the supposed marital exemption in the rape forms no part of the law of England. Lord Brandon Of Lord Griffing, Lord Ackner & Lord Lowry all unanimously agreed with lord Keith's ratio decidendi as such R's appeal was dismissed and his conviction upheld. R's appeal was accordingly dismissed & he was convicted of the rape of his wife.

This was reviewed by Europe court, it amounted to a retrospective change in the criminal law. the judgment of R vs. R was supported by the law commission and was later confirmed in statute law by the amendment to the sexual offence act in the criminal justice and public order act 1994.

Situation in India

In India marital rape exist de-facto not de-jure. While in other country either the legislature has criminalized marital rape or the judiciary have played an active role in recognizing it as an offence in India however he judiciary seems to be operating at cross purpose; Shri Bodhisattwa Gautam V Subhra Chakraborty 5 the SC said that rape is a crime against basic human right and a violation of the victim most cherished of fundamental right to life enshrined in article 21 of the constitution.

Yet it negate this very pronouncement by not recognizing marital rape. Through there have been some advance in Indian legislature in relation to domestic violence, it has mainly been confined to physical rather than sexual abuse. Woman who experience and wishes to challenge sexual violence for their husband are currently denied state protection as the Indian penal code section 375 has a general marital rape exemption.

172nd Law Commission Report

The 172nd law commission report had made the following recommendations for substantial change in the law with regard to rape:

  1. Rape should be replaced by the term sexual assault
  2. in the light of sakshi vs union of india and others 2004 (5) scc5186 Sexual assault on any part of the body7 should be constructed as rape
  3. A new offence namely sec376E with the title unlawful sexual conduct should be created
  4. Sec 509 of the IPC was also sought to be amended
  5. explanation of the 2 of the sec 375 of IPC should be deleted.
The judicial interpretation has expanded the scope of article 21 of the constitution of India by leaps and bound the right to live with human dignity of woman and to that effect it is submitted that exception provide under section 375 of IPC 1860 is violated article 21 of the constitution.

Article 14 of the constitution guarantees the fundamental right that 'the state shall not deny to any person equality before law and equal protection of law with in the territory of India' but the exception under section 375 of IPC 1860, discriminate with a wife when it comes to protection from rape. Thus it is submitted, that to this effect, exception provide under section 375 of IPC 1860 is not reasonable classification and thus violate the protection guaranteed under article 14 of the constitution.

Through protection of the dignity of the women is the fundamental duty but, it seems that domestic violence and marital rape do not come under the definition of dignity.

The united nation convention on the elimination of all form of discrimination against woman (CEDAW) of which India is a signatory has viewed against violate the principle of equality of right violate the principles of equality of right and respect human dignity, further the commission on human right at the fifty first session in its resolution no 1995/85 of 8/3/1995 entitled the elimination of violence against rape should be criminalize.

The law prevent a girl below 18 years from marriage but on the other hand, it legalized non consexual, sexual intercourse with a wife who is just 18 year of age.

Another paradox is that according to the sec 367(D) IPC 1860, if there is a non consexual intercourse with a wife, then the punishment may either be fine or an imprisonment for maximum term 2 year or both which is quite less in comparison to the punishment provided for rape outside the marriage.

Suggestion
  • The punishment for the marital rape should be same as the one prescribe for rape under section 376 of IPC
  • The fact that parties are married should not make the since lighter
  • It should not be a defense to the charge that the wife did not fight back and resist forcefully or screamed and shoulder
  • The wife should have an option of getting decree of divorce if the charge of marital rape is proved again her husband
  • Corresponding change in the matrimonial law should be made.

Conclusion

It is conclude that changing the law on sexual offence is a formidable and sensitive task & more so, in a country like India where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might came into conflict with a new amendment in the statutory criminal law, further though there is need for substantial change in the law of sexual offence such as making them gender , neutral and eliminating the inequality a radical overriding of the structure of sexual offence is not advisable.

The immediate need is criminalizing marital rape under the IPC. But, mere declaration of a conduct as an offence is not enough. Sometime more is required to be done the judiciary and police. There is also a need to educate the masses about this crime, as a real objective of criminalizing marital rape. Can only be achieve if the society acknowledge& challenge the prevailing myth that rape by one's spouse is inconsistence. so, there should be hard punishment, law for this crime because there should be maintenance of equality and right to freedom i.e. human right and no one have right even her husband to heart their dignity.

End Notes:
  1. 1991ukhl12
  2. 2017
  3. 31sse 2nd847va1984
  4. History of pleas 1736
  5. 1996scc(1)490
  6. 2004(5) Scc518

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