“The great secret of a successful marriage is to treat all disasters as incidents and none of the incidents as disasters.”
Lord Mathew Hale, the 17th century Chief Justice of England, in ‘History of the Pleas of the Crown’ wrote, “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.”
Lord Hale asserted that upon marriage a wife consents and automatically hands over her person to the husband for sexual acts and the consent is irrevocable, which cannot be retracted subsequently.
The flip side of this version is that it is not only the nuptial duty of the wife to provide sex to her husband; on the contrary, it is the primary nuptial duty of the husband to provide the desired level of concupiscence to wife besides meeting her other needs such as protection, provision, home and other domestic facilities. In many statutes applicable in India, ‘impotence’ of husband is one of the major grounds for divorce sought by the wife. However, frigidity or barrenness of wife is not a ground of divorce for men. As a matter of fact, the principal objective behind the sacred institution of marriage for centuries has been the ‘procreation’ and the only way to achieve that goal is through monogamous sexual act. The marriage in all societies can be termed null and void if not consummated.
In September 2011, the Daily Express reported a unique ruling of a French Court, which ordered a 51-year-old man to pay his ex-wife nearly 8,500 pounds in damages for failing to have enough sex with her during the 21-year marriage. The man, Jean-Louis B was fined under Article 215 of France’s Civil Code. The Judge in the south France’s highest court in Aixen Province ruled that this law clearly implies, “Sexual relations must form part of a marriage”.
“A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other”, the judge ruled.
In fact, the wife had already filed a suit for divorce two years ago in a lower court in Nice, blaming the break-up on her husband’s lack of activity in the bedroom. The court had then granted the divorce holding the husband solely responsible for the split.
And then two years later, the ex-wife took the husband back to a higher court demanding cash in compensation for “lack of sex over 21 years of marriage”. The man admitted not having enough sex blaming tiredness and health problems for his inactivity.
So, we see that on one side there is a hue and cry about the husband not providing the desired level of concupiscence to wife; on the other side, the husband is being accused for demanding compulsive sex from wife. With the universal rise of women empowerment during the past few decades, women have largely been protected by law almost in every civilized country, India being no exception. With law on their side, the women obviously feel elated.
In India, laws have been enacted in regard to violence against woman in her own house like laws against dowry, cruelty, domestic violence and female infanticide, etc. In 2005, the Protection of Women from Domestic Violence Act, was passed, which did not consider marital rape as a crime but as a form of domestic violence.
However, over the years, the cacophony on Marital Rape has surfaced at numerous platforms of the society, especially in the legal institutions. The women Non-Governmental Organizations (NGOs) as well as some individuals view that the evil of the marital/spousal rape is hidden behind the sacrosanct of marriage. According to them, the husband is the perpetrator of his wife’s bodily integrity. In their view, rape is rape irrespective of the relationship between the victim and the perpetrator.
Section 375 IPC defines ‘Rape’: “A man is said to commit ‘rape’ who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the seven (specified) descriptions.” The Section provides ‘Exception’ clause which says, “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” The supporters of marital rape want this exception clause to be removed.
The Fifteenth Law Commission headed by Justice B P Jeevan Reddy in its 172nd Report, captioned, “Review of Rape Laws”, submitted in March 2000, declined to recommend criminalizing the marital rape, saying, “It may amount to excessive interference in the marital relationship.”
Subsequently, the Parliamentary Standing Committee on Home Affairs, which examined the Criminal Law (Amendment) Bill, 2012, in the aftermath of December 2012 Delhi gang rape case, in its 167th Report submitted in March 2013, did not recommend criminalization of marital rape on the ground that it would have the potential of destroying the sacred institution of marriage, which is based on mutual trust and love.
In April 2015, the Minister of State for Home Affairs, Haribhai Parthibhai Chaudhary, responding to a question in Rajya Sabha had said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.”
One of the reasons cited was that marriages are treated as a sacrament in the country.
On the contrary, on December 4, 2015, while replying to a debate on a Private Bill, moved by Avinash Pande, a Congress Member of Parliament, who called for the Indian Penal Code (Amendment) Bill, 2014, to criminalise marital rape, the Minister of State for Home Affairs, Kiran Rijiju told the Lok Sabha that the government is planning to bring a comprehensive law to criminalise marital rape by amending the Indian Penal Code, for which it is awaiting the report of the Law Commission of India on the matter.
In February 2015, a Bench of the Supreme Court comprising Justices A R Dave and R Banumathi reportedly refused to entertain the plea by a victim of marital rape to declare it a criminal offence by saying that it wasn’t possible to order a change in the law for one person. “You are espousing a personal cause and not a public cause …. This is an individual case,” the Bench observed.
Giving his views on the subject matter, legal luminary, Professor G.S. Bajpai, Registrar, National Law University, Delhi, along with Raghav Mendiratta, said, “Marital Rape adds a layer of complexity to conventional rape and one must understand gender dynamics to fully understand the implications of marital rape. The trauma of rape survivor is multiplied manifold, as the victim is expected to share a close physical and emotional bond day in and day out with the perpetrator. The line differentiating marital rape from conventional rape is blurred and therefore marital rape is as serious an issue for the society as is conventional rape.”
According to Professor Bajpai, “Obtaining unequivocal consent of one’s partner must be a pre-requisite of marital sexual intercourse, regardless of whether there exists a marital bond or not. If a husband forces himself on his wife despite her unwillingness, for any reason whatsoever, the sexual intercourse that follows must be considered as marital rape.”
Expressing utter disagreement with Professor Bajpai, a young academician Mrs. Uzma Khushi said, “The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is therefore a forcible seizure or ravishment of a woman without her consent. Rape is coercive, violent, non-consensual sexual intercourse with a woman by applying fear or fraud to commit the offence. Whereas, this is absolutely not the case of married couples as the relationship between a husband and a wife depends on mutual trust, understanding, love and caring attitude.”
Expressing astonishment Khushi questioned, “How can you compare a criminal’s act with that of the life partner, who besides sexual act, lives together, eats together, sleeps together and also brings-up the children with tenderness? How can you compare the butcher’s act with that of the surgeon? A conventional rapist resorts to violence because the woman is not available to him and out of craziness or addiction (just like a thief), he would choose to grab the opportunity by coercion, fear or fraud. Whereas, the husband with whom his wife is readily and peacefully available is least likely to resort to violence. If at all a husband is violent, he is violent holistically, as he will not exhibit his violent attitude only for coitus but also in other chores of the household. That way the cruel husband will ill-treat the wife every time, exhaust her by taking excessive labour, will impose unreasonable restrictions, will use indecent language and will neglect her health and well-being. For such aberrations, there are enough legal provisions to deal with violent husbands. In any case making criminalization of the so-called marital rape makes no sense. The hypothesis of marital rape seems to be the celluloid fantasy of a screenplay writer’s overheated imagination.”
Agreeing with Khushi, Mrs. Madhumita Kothari, a high profile Advocate of the High Court of Delhi, said, “Marital rape is an issue only in that sector of the population which has not been socially awakened and where women are envisaged only as objects and subject of consumption and goods of utility. In our society especially in the underdeveloped section, men and women never receive any counselling before or after the marriage as to the requirements of a conjugal relationship and how to handle the same. Thus emerges the problem of compelling sex without the happy consent of the partner. This is the issue, which needs to be understood in its intricacy and dealt with. However, considering it as grievous as rape will disturb the concept of the institution of marriage and procreation will be greatly impeded resulting in degeneration of human society. Such issues in a conjugal relationship get eased out over a period of time and with the increase of love and affection between the partners and the onset of maturity.”
Sharing her experience, a young female journalist, Papri Sri Raman said that she had done several case studies on the subject and felt that the legal provisions on this count can be made more specific under the Domestic Violence Act and that way no new legislation on this issue is required. “I have a case study from Bundelkhand where mothers and female teachers have told the activists of ‘School-drop out survey’ that they want the girls married in the age of 13-14 years, because they fear rape by fathers/ brothers/ uncles, etc. (So better they get raped by husbands).”
Papri is of the view that irrespective of marriage or outside marriage, it is the ‘consent’ between two consenting adults, which matters. There is a plethora of laws in India for the safety of women; still the women are not safe at home or outside. Any debate on marital rape is pointless unless, there comes a socio-cultural change to ensure paying due respect to individual partners.
The marital rape formula has been created and adopted in many countries like the USA, the UK, Canada, France, Australia, Ireland, Germany, etc. As of today marital rape is an offence in all the 50 states of USA. Most states punish marital rape offences like any other rape, with fines over $50,000, with prison terms that vary between several years and life in prison without parole.
Professor Bajpai too advocates for the jurisprudence on marital rape but in Indian context. He says, “Relying on foreign jurisprudence without understanding the society’s status quo would be inappropriate under any circumstance. However, the Human Right of an individual to have control over one’s body is universal. Marital rape violates the Right of a Person to Live with Dignity and Right to Security among others, as also enshrined in the Universal Declaration on Human Rights. Therefore, it would be inappropriate to study Marital Rape Laws of foreign countries and be inspired by their jurisprudence while devising effective Marital Rape Laws for India.”
Reacting to Professor Bajpai’s contention on jurisprudence, Madhumita said, “Ethos and spirit of Indian society coupled with ingrained societal values are very different with other nations. India is modern but with a difference. The family institution culturally enjoys a lot of respect in India, especially amongst Hindus, where marriage is not a contract but is believed to be a bond decided by God in heaven. This concept makes the institution of marriage sacrosanct. The belief to live with one’s life partner for the entire life span has in fact sustained and enriched the family values in India for centuries. The American society is very different from India culturally and both cannot be compared in terms of family laws and value system. Rape is a serious and condemnable offence but incompatible conjugal relationships are on a different footing and need to be addressed with a different rationality on a more matured and empathetic foundation.”
Negating the theory of making law on the so-called marital rape, Madhumita said that the basic purpose behind making laws is to clear the chaos, rather than creating the chaos. Madhumita quoted St.Thomas Aquinas who once said, “Laws may be unjust through being opposed to the Divine good; such laws are the laws of tyrants…laws of this kind must no wise be observed.”
Even if the law on marital rape is made, what then is the guarantee of its effectiveness? The experience shows that despite the strict anti-rape laws made through Criminal Laws (Amendment) Act, 2013, there is no reduction in rape crimes. According to the National Crime Record Bureau (NCRB) data, in India 93 women are raped everyday and there is a gradual increase in the crime.
There is already no dearth of false rape cases filed by unscrupulous women against innocent persons for revenge or extortion. In January 2016, Additional Chief Metropolitan Magistrate Gaurav Rao of Delhi’s Saket court, while acquitting two accused of rape and molestation charges directed the police to book the woman for filing the false case. The Court observed, “Such a practice not only causes immense distress, irreparable damage and unfathomable trauma to the person who has been falsely implicated but it also gives the world a chance to label the city as rape capital.”
Earlier in May 2013, the Delhi High Court had also raised concern over increasing instances in which women misuse rape laws to force a man to marry them and also to extort money after having consensual physical relations. Granting bail to a rape accused, Justice Kailash Gambhir made the remarks in a written order, “Most of the rape cases are genuine but many of them are being reported by having consensual physical relationship with man, but when the relationship breaks down due to some reason the woman uses the law as a weapon for extracting vengeance or to extort money and sometimes to force the guy into marriage.”
In January 2016, a Report of the Delhi Commission for Women revealed that 53% of the rape cases filed between April 2013 and July 2014 were found to be false. In all the 2,753 complaints of rape filed during this period, only 1,287 cases were true while the remaining 1.464 were found to be false.
The Supreme Court in the year 2010 had asked the government twice to take a re-look at the 28-year-old anti-dowry law following a spurt in its misuse resulting in old people, pregnant women and even children being booked on false complaints.
Renowned physician Dr. Talat Aziz, talking to Lawyers Update revealed that most of the times crime of passion can be prevented through medical and psychiatric intervention and through dissemination of relevant information and sex education to people en-masse.
Dr. Aziz says that sex can be therapeutic as well as disastrous. If the people at large learn the balancing act, there may not be the need for devising stringent laws to keep the society in order According to him ‘sexual addiction’ is a condition that may prove to be disastrous. In this condition, the sufferer becomes excessively pre-occupied with thoughts that may give him the desired sexual effect, but he hardly gets satisfied.
No one factor is thought to cause sexual addiction but they are thought to be biological, psychological and social factors that contribute to the development of these disorders.
As such, the legal intervention cannot be preferred over medical/psychological intervention. When a woman after marriage comes across an addict husband, the dispute of marital rape arises.