Marital Rape: An Oddity

The author seeks to raise awareness about the issue of marital rape, critically analyzing the legal framework, societal attitudes, and ethical implications. By doing so, the author advocates for the recognition of marital rape as a serious offence and emphasizes the need for legal reforms to protect women's rights and promote justice.

Introduction

While watching Bhaag Milkha Bhaag, I came across a scene which was innately disturbing and thought-provoking. The scene was knitted in a manner that showed how deep-rooted is the sexual abuse of a woman and how she is denied her choice or consent at that moment. At least I had hoped that this would make the audience think about the issue. However, the articles on the internet seem to suggest otherwise.

People either didn’t understand it or were ‘okay’ with it. I also read in a few online articles that the reception of that scene was entirely contradictory to what it should have been. Many, it seems enjoyed that scene instead of fighting the thought, just like in the movie when the two children were giggling while the character in the movie was being raped. The next day, I walked into my conference room and asked my junior colleagues a point-blank question.

“Have you watched Bhaag Milkha Bhaag?”
They all said, Yes.
“Tell me, as an advocate what did you see?”
One of the colleagues mentioned that particular scene, the rape of the protagonist’s elder sister by her husband. Yes, it was rape, but sadly, not punishable,.

For the longest time, our society has boasted of a lineage where women have been given the status of God. Yet, we have failed them as human beings. Women are wronged in so many ways daily, yet they are asked to either adjust, keep quiet or accept the norm. While we may talk of equality and equal representation of women, the same is yet to be achieved in its true sense. The current government has come up strong against the rights of women, but it cannot be denied that we still have a long way to go.

Freedom and Safety for Women

I often hear my female colleagues and friends say that they do not feel safe while stepping out of home at night, so what sort of freedom is this? Many of my colleagues then go on to say that a lot of women are equally scared of stepping inside their homes as well. So, a woman is not safe even at home because she is subject to both mental as well as physical abuse, which has been prevalent in society for a very long time.

Unfortunately, most of the heinous crimes happen within the boundaries of one’s home. Many of the crimes go unreported due to social reasons or lack of education. But one such crime is given the protection of law, Rape by a Husband. The Bhartiya Nyaya Sanhita, 2023 gives a definition of rape, wherein certain specific exceptions are also carved out. The same is reproduced hereinafter

Rape (Section 63 of BNS) — A man is said to commit “rape” if he:

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, 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
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:-

i. against her will.

ii. without her consent.

iii. with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

iv. with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

v. with her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

vi. with or without her consent, when she is under eighteen years of age.

vii. when she is unable to communicate consent.

Explanation 1: For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

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 eighteen years of age, is not rape.

So, in layman’s language, when a man violates the privacy of a woman by performing sexual intercourse of any form without her consent/will, the offence of rape is committed. One must also look at Section 120 of the Bhartiya Sakshya Adhiniyam,2023 which categorically presumes the absence of consent in most of the cases of rape.

Thus, in a regular scenario consent is assumed to be missing but mere marriage reverses the entire equation. So, does that mean marriage gives a husband the license to commit a crime and walk free? So, when a husband forces himself upon a wife, are the psychological effects any less? The answer is simply, No.

Another aspect that is ingrained in our criminal justice system is that we are reformative and not retributive. Therefore, anyone who commits a crime needs rehabilitation and reformation and even from that point of view, the whole approach is invalid. In one instance the perpetrator is not punished, and no attempts of reformation are being taken.

The Supreme Court has on many occasions categorically stated how rape is much more than just a physical act of violence.

An act of Rape is not only a crime against a woman’s body, but it demolishes her soul as well.

The court held that rape destroys the entire psychology of a woman and pushes her into deep emotional trauma. It is only by her sheer willpower that she rehabilitates herself in society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. To many feminists and psychiatrists, rape is less of a sexual offence rather an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.

A woman is often burdened with a lot of stigmas by society wherein men get a free hand. This adds to the agony and harassment of women. This includes the act of sexual intercourse, which infringes the Fundamental Right to life of the wife. The violation of such privacy of a woman in the usual course is punishable under the Bhartia Nyaya Sanhita, 2023 under rape, but if the same happens between a husband and wife, it is excluded. So, in essence, it remains a crime but the Statute creates an exception.

A woman subject to such cruelty is often embarrassed about sharing her apathy due to the reception of such things by society. If the law also shields such acts of violence and cruelty, the victims of such crimes would find themselves in deep depression or many other health issues.

F.H. Batacan said:

“Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces.” 

 The change in the system/society has to be driven by the laws of the land and a progressive law will help boost the oppressed women.

The Legal Debate

The argument against the criminalization of marital rape is that marriage comes with an expectation of sexual intercourse, whereas people in favour of criminalization argue that a mere expectation cannot be read as right. Thus, consent at the relevant point of time is essential. One side argues that denial of conjugal expectation is a ground for divorce, on the hand the other side says that sexual abuse by the husband is also a ground for divorce.

The answer to the above is simple, prevent crime rather than seek a pyrrhic justice i.e. if your expectations are not met, seek divorce but that doesn’t allow you to commit rape. Intimate sexual acts are a part of an individual's right to freedom of expression, albeit, subject to reasonable restrictions contained in sub-clause (2) of Article 19.

If the ingredients of crime are present

There are usually four stages of a crime which are a. Intention, b. Preparation c. Attempt and d. Accomplishment. An act is punishable under law when there is both a guilty intention and a guilty act, even an attempt coupled with a guilty intention is punishable. Thus, to constitute a crime, one needs to see the intention and the act.

An important question is whether these two elements are present when a man forces himself upon a woman, irrespective of him being a husband or not. An expectation of a sexual act must not override the woman’s right to consent. The same protection will not be given to a person in a live-in relationship why should marriage be treated any differently?

Ironically, this law assumes a husband's right to fulfil his sexual desire as and when he wishes to exercise it, it erases the wife's right not to engage in sexual acts, even when a woman may not be completely healthy.

One basic argument against the criminalization of rape by a husband is that this may do more harm than good, as many women may misuse it by falsely accusing their husbands. But it has to be understood that every law has the capability of being invoked incorrectly and to eradicate that one aspect one can insert checks and balances.

What those checks and balances would be is up to the legislature. An efficient and inclusive draftsmanship between psychologists, advocates, doctors, and the legislative representative would surely be beneficial towards carving out a better law. But, deflating a grave and heinous offence such as rape is untenable. The argument loses sight of the fact that the penology behind punishment is concerned not only with the incarceration of the convict but also with stigmatizing the conduct, which does not meet with the approval of society.

Since rape is a grave and heinous offence, society at large should know about the conduct of the convict. Therefore, the submission that other provisions of the Bhartiya Nyaya Sanhita, 2023 provide for equivalent punishment for sexual offences, and hence, the Marital Rape Exception should remain on the statute is untenable in law.

Conclusion:

“Men and women have roles – their roles are different, but their rights are equal." - Harri Holkeri.

The fate of the law is yet to be decided, however, we can decide the fate of our future generations by being more aware and standing for what is right. We, as a society, must look beyond the patriarchal mindset educate our children towards their rights and ensure that everyone is treated with respect. Our Constitution treats everyone equally.

Therefore, no law should make any human being inferior or let them feel they are inferior. Many High Courts have deprecated archaic laws which demean women’s rights. Men and Women are created differently but in the true sense, women are more evolved and deserve more respect. A presumption of misuse cannot be the grounds for not identifying something as an offence, as in the legal world most of the offences are misused anyway. The way forward is that our courts would need to step up and not act mechanically.

While writing this very article it led me to introspect, as one should, which led me to the following quote by Patti Feuereisen, “Truth: Rape does indeed happen between girlfriend and boyfriend, husband and wife. Men who force their girlfriends or wives into having sex are committing rape, period. The laws are blurry, and in some countries marital rape is legal. But it still is rape.”

What comes out, people who argue against the criminalization of marital rape also agree it is rape, but are only concerned about the misuse. Hence, the answer lies in the framework and implementation of law, rather than dismissing the criminality of the act.

References

[1] Bharatiya Nyaya Sanhita

[2] Bharatiya Nagarik Suraksha Sanhita

[3] Constitution of India