The word ‘rape’ has been derived from the Latin term raptus which means the act by one man of damaging or destroying the property of another man.
Marital rape, by the very name means rape caused to a spouse by her husband. It basically refers to the actual use or threat of use of force by the husband against the wife to compel her for sexual intercourse.
This form of rape also known as conjugal rape, and it is also said to have taken place when the wife is compelled to have entered into sexual intercourse in a situation when she is unable to express consent. This belief is said to have roots back to the history of mankind, where women were considered as the property of their husband. This was also covered by a legal principle of coverture which refers to the wife being covered by the spouse once married, such that she is now his property. It denies a woman her bodily integrity thus striking a blow at women’s rights.
The issue of marital rape is largely neglected in Indian society. Patriarchal domination of the society has come up time and again and has granted to the husbands exemption in cases of marital rape basing on the assumption that the wife has given herself to the husband through the contract of marriage.
Modern thinkers in support of the victims of marital rape, however, hold that marital rape is also a form of rape and the marital status of the woman should have no bearing on the culpability in the crime of rape. It is a form of rape that lays hidden under the cover of marital privacy that gives both the husband and the wife, the right to protect the private acts that they both enter with consent.
SURVEY REPORTS ON MARITAL RAPE IN INDIA
In early 2000, two-thirds of married Indian women surveyed by the UN Population Fund claimed to have been forced into sex by their husbands of whom women aged 15 to 49, have been beaten, or forced to provide sex.
In 2011, a study released by the International Center for Research on Women, a Washington-based non-profit, said one in every five Indian men surveyed admitted to forcing their wives into sex.
A nine-nation study within the European Union found that current or ex-partners were the perpetrators of around 25% of all sexual assaults, and that violence was more common in assaults by ex-partners (50% of the time) and partners (40%) than in assaults by strangers or recent acquaintances (25%)”.
RAPE: VIOLATION OF WOMEN’S RIGHT TO FREEDOM
Rape, which is a heinous crime violates a woman’s bodily integrity, freedom, and self-determination; the harm is not disclosed because the rape occurred in her marriage bed. Marital rape can be more traumatizing and abusive than stranger rape. Suffering at the hands of a spouse, who is usually a source of trust and care, produces harsh feelings of betrayal, disillusionment, and isolation in the woman.
The spousal exemption to rape laws is a grave injustice and adds to the trauma of marital rape. A wife is not able to quickly and unilaterally secure protection; she must wait for the divorce process to take its course to obtain relief, during which time she remains endangered. The rape law exemption to spouses, therefore, removes a wife’s right to abstain from sex and subjects her directly to the dangers of sexual violence.
MARITAL RAPE AND THE INDIAN LEGAL SCENARIO
The marital rape exemption can be traced to statements given by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
The definition of the word ‘rape’ is given in the Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very 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. This very definition under IPC restricts marital rape to come under the ambit of ‘rape’.
Talking about marital rape in other countries, it is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. In these countries, rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration.
The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is irony in itself. 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, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? There is no answer to this, because the judiciary and the legislature have been silent.
The much awaited Domestic Violence Act, 2005 (DVA) has also not been of much regard in case of marital rape, since it only condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It does not talk about the freedom of decision of a woman’s wants.
In a democratic country like India where everyone has Right to Freedom and Personal Liberty, it becomes immensely important for the law makers to think about the woman who are victims of marital rape. They have no say, just because our Indian Law is silent about the topic of marital rape. Many women in the country are suffering from this evil. Stringent law for marital rape is need of the hour.