" The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract."
- Sir Matthew Hale Chief Justice in !7th Century England.
He asserted that, upon marriage, the wife automatically hands over her legal person to the husband and consents to all sexual acts, which cannot be retracted at any later date for no reason whatsoever. He introduced within the marriage, a notion of 'implied consent' that started at the time of the marriage and continued for the entire course of the marriage, and such consent was deemed irrevocable by Lord Hale. This established that once married, a woman does not have the right to refuse sex with her husband. Due to construction of sex as a woman's duty within a marriage, there is always a presumption of her consent.
Marital Rape refers to unwanted intercourse by a man with his wife obtained by force or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.
Rape is the fourth most common crime in India. According to the National Crime Records Bureau 2013 annual report, 24,923rape cases were reported across India in 2012. Out of these, 24,470 were committed by someone known to the victim (98% of the cases)
India has been characterized as one of the "countries with the lowest per capita rates of rape".The National Crime Records Bureau of India suggests a reported rape rate of 2 per 100,000 people, much lower than reported rape incidence rate statistics for many nations tracked by the United Nations. A majority of rape cases in India, as elsewhere in the world, are never reported.
According to 2012 statistics, New Delhi has the highest raw number of rape reports among Indian cities, while Jabalpur has the highest per capita rate of rape reports. Several rape cases in India received widespread media attention and triggered protests since 2001 This led the Government of India to reform its penal code for crimes of rape and sexual assault.
Concept of marital rape cannot be applied in India as marriage is treated as a sacrament or sacred as per mindset of the Indian society, government said on Wednesday.
"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament," Minister of State for Home, Haribhai Parthibhai Chaudhary said.
He was replying to a written question of DMK MP Kanimozhi in Rajya Sabha.
Kanimozhi had asked the Home Ministry whether Government will bring a bill to amend the IPC to remove the exception of marital rape from the definition of rape; and whether it is a fact that UN Committee on Elimination of Discrimination against women has recommended to India to criminalise marital rape.
She had also said that according to United Nations Population Fund that 75 per cent of the married women in India were subjected to marital rape and whether government has taken cognisance of the fact.
Chaudhary said the Ministry of External Affairs and Ministry of Women and Child Development have reported that UN Committee on Elimination of Discrimination against Women has recommended to India to criminalise marital rape.
"The Law Commission of India, while making its 172nd Report on Review of Rape Laws did not recommend criminalisation of marital rape by amending the exception to Section 375 of the Indian Penal Code and hence presently there is no proposal to bring any amendment to the IPC in this regard," the Minister said.
Supreme court has delivered a judgement on rape of wife by her husband and ruled it is not a punishable offence. Commenting on that judgement a minister told, it is a right decision in Indian context because marriage is a solemn sanskar . The exact word is used ' Pavitra Sarkar. ' Marriage comes under the sixteen sanskaars of Hindu religion. Agree. But it has some other status in different religion and social orders. In Islam and Christianity it is a contract. A contract is a contract with consent of the mutual parties. It can be dissolved by consen too. But in Muslim marriage there is a theory of triple talaq, but that too has always raise some controversies. In Hindu marriage, there was no concept of divorce. I don't know why this provision is left, but it is lacking there. When Hindu marriage act codified the provision of divorce is included in some circumstances. But it is not as easy as in other social orders.
The pavitra sanskaar has become a fragmented texture. During my service days, I always found many newly married complainants in my office in connection with marital disputes. Sec 498 A which deals with the domestic violence is the most abused provision of IPC and sometimes it becomes as a tool of harassment and extortion of in laws. The pavitra sanskar is losing its sheen.
What is Rape ? Rape is a forced sexual intercourse without consent. Suppose a husband in a drunken state or otherwise indulges in a forceful sexual intercourse without the consent of his wife, what will you call it ? Rape ? Or any other tem ? The word rape you will not accept, I can understand , then please use some other word. But plz think over it. Sex has a purpose and the joy is the nucleus of sex. If someone is not giving her consent, for sex, and that very sex is forcefully imposed on her, will it not brutal and inhuman to her ? Will the lady will not feel the hurt and agony of the forceful sexual act ? Afterall rape also gives such brutal and inhuman hurt and agony.
While right to privacy is not mentioned in the Indian Constitution, the Supreme Court in a series of cases has recognized that a right of privacy is constitutionally protected under Article 21. The right of privacy under Article 21 includes a right to be left alone. Any form of forceful sexual intercourse violates the right of privacy. It is submitted that the doctrine of marital exemption to rape violates a married woman's right to privacy by forcing her to enter into a sexual relationship against her wishes.
The final version of section 375 of the Indian Penal Code, which emerged after deliberations in the Select Committee, is a crystallized form of Clause 359 of the Macaulay's Draft Penal Code. The provision of rape in the Indian Penal Code (IPC) echoes archaic sentiments, mentioned as its exception clause- "Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape."
Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife. and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.
The man is to be punished if the wife is less than 12 years of age, if she is between 12 to 15 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 15, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.
What is even more ironocal that these are the same laws which provide for the legal age of consent for marriage to be 18. But when it comes to protecting women from sexual abuse, there is no remedy the woman has in a marriage if she is above 15.
As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:
1. When the wife is between 12 - 15 years of age, offence punishable with imprisonment upto 2 years or fine, or both;
2. When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and fine;
4. Rape of wife of above 15 years in age is not punishable.
In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence. Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband. This is only a piecemeal legislation and much more needs to be done by the Parliament in regard to marital rape.
The basic argument which is advanced in favour of these so-called 'laws' is that consent to marry in itself encompasses a consent to engage into sexual activity. But, an implied consent to engage into sexual activity does not mean consent to being inflicted with sexual violence. It is often felt that as in sadomasochistic sexual acts, in marital rape women are presumed to have consented to the violence. However Rape and sex cannot be distinguished on the basis of violence alone.
A discussion is going on my post regarding the judgement of Supreme Court on marital rape. The element of force or to compel without consent to do sex is the basis of rape. In IPC the beating of wife, harassing a wife are cognizable offences. A domestic violence act has also been introduced to stop these excesses in 2005. Many cases are pending in the courts regarding matrimonial disputes and domestic violences. But these acts and laws has not said any word about the forcefully sex by a husband with the wife. Why ? Why not the theory of pavitra sanskaar has emerged at the time of drafting the domestic violence bill. ?
Why not a consensus has been achieved on this issue from the different walks of society and women's organisation ?
We uttered word pious so many times that it gives a sense of hippocracy to us. Someone told it is a sngam of soul. I don't know, it is said in a lighter mood or it is true. But where the pavitra sanskaar vanished when a wife is continuously being harassed by the husband and their in laws ? Law is to protect everyone from the brutal and inhuman excesses. The sex without consent is also a inhuman excess. So a law is necessary like rape laws, to prevent such types of situations. The punishment may be not as harsh as 376 IPC.
Wife is not a property. There are eight types of marriages are permitted in Hindu scriptures. Last four are condemned and first four are accepted. The popular is brahm vivaah. The mantras in sapt padee recited in ceremony are very rightly explains the life long companionship. They don't permit husband to treat his wife as a property. Wife is not a property, but being the patriarchal social system and weak gender the husband most of the times treat her as a personal property. But the education, women empowerment and modern laws have changed the scene. Women are fighting for their rights, and they are confident to find there right place in social system. Time is changing and so the awareness is increasng.