Sir Matthew Hale, Chief Justice in 17th Century England, said, "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."
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.
India has advanced in every possible field but marital rape still remains a contentious issue in the country. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is still not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything just depends on the court's interpretation.
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.
The need of the hour is an immediate change in the definition of rape (section 375 of IPC). The narrow definition has been criticized by Indian and international women's and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice or equity. Even international law now says that rape may be accepted a s the "sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight."
Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against "perverse sexual conduct by the husband". But, does marriage give a license to rape? Unfortunately, the judiciary and the legislature are yet to give an answer.
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