Articles 14 and 21 of the Indian Constitution enshrine the basic right to equality and the right to life respectively, for every citizen of India. The presence of these articles enables every individual citizen of our country to live with dignity without abuse or any form of violation of these rights. However, due to stringent patriarchal constructs of the Indian marriage laws, the basic fundamental rights are exploited on a large scale, as far as gender based and minority crimes are concerned. Marital rape is one such elephant in the room. Also known as spousal rape, it is a coercive sexual act with one’s own wife without her proper concern. In this scenario a husband is not convicted or charged for the act of rape on his wife. This archaic norm is biased against women in India the ultimate supremacy and legal recognition is provided to the husband over the rights of the wife. The society, civil administration, family most actively results the very idea of marital rape in the first place, deeming it to be a part and parcel of married life. Moreover, in many cases it has been found that the wife herself, owing to illiteracy or strict social customs does not give a thought to the “crime” (marital rape) that she endures every night.
HISTORY OF SEX CRIME AND ITS GERMANE LEGISLATION
The world has always had a patriarchal milieu. Dominion over the nature by man is a traditional and much – approved notion (nature here is personified as women). As a result any sort of coercion on women is not considered illegal .keeping this view in mind as far as marital tape is concerned by definition a husband d could not rape house wife. Sir Matthew Hale (1609–1676) in History of the Pleas of the Crown, had described that “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up her in this kind unto her husband, which she cannot retract”. Also, American and English laws enshrined until the 20th century to the system of covertures, that is, a legal doctrine under which, upon marriage, a woman’s legal rights were subsumed by those of her husband. In the context of united states of America this barbaric legal dimension was completely abolished by the case of by the case of Kirchberg v. Feenstra, 450 U.S. 455 (1981), in which the American Apex court reckoned the sole control of the husband of marital property unconstitutional. Many jurisdictions, including all fifty U.S. states, criminalized marital rape by the 1990s.
HISTORY OF RAPE LAWS IN INDIA
English common law has had a tremendous influence on many legal systems throughout the world due to colonialism. Women have always been deemed as a property, first of her father then of her husband. Therefore a man could not be prosecuted for raping his own wife because she was his possession. Therefore, rape laws were created to protect the property inert that men had in their women, and not to protect the women themselves .this idea of women being treated ass property, is the backdrop of marital rape ideology and laws throughout the globe. However in the Indian context a legislation condemning rape was passed in the year 1860 during the British Rule. It criminalizes rape on the following grounds:
- Against her will.
- Without her consent.
- With consent obtained under fear of death or hurt.
- When consent is given under a misconception of the fact that the man is her husband.
- When consent is given because of insanity in the women, or by intoxication, or under coercive substance abuse.
- When sexual act is done with a women under 18 year of age, with or without her consent.
- When sexual act is done with a women who is able to communicate her consent.
The aforementioned provisions are laden with certain exceptions which are as follows:
- If a women does not physically resist penetration.
- A medical procedure does not shape an offence of rape.
- And finally when sexual intercourse or sexual act by a man with his wife who is above the age of 15 years is not considered rape.
This very exception is called marital rape section 9 of the Hindu marriage Act 1955 and also Sharia Law also fails to criminalize the marital rape.
AMENDMENT TO SECTION 375
The most horrendous yet landmark case that led to this amendment was the Phulmoni Dasi vs Hari Mohan in 1881.being an 11 year old child bride, Phulmoni Dasi passed away because of excessive bleeding when her husband Hari Mohan who was in his mid-30s tried to consummate their marriage despite a proper autopsy report of a ruptured vagina as the cause of death Hari Mohan was charged under Sections 304, 304A, 325 and 338 of the IPC subsequently. As a result the British government introduced the age of a consent act 1889 that rose the age of consent from 10-12 years, in both marital and extra marital cases. This act was further amendment in the amendment act of 1925 which clearly distinguish the age of consent for both extra marital and marital rape i.e.; 14and 13 years respectively. As mentioned earlier the Indian constitution does not provide any proper legislation to curb marital rape specifically. But never the less there are certain amenities under the Indian constitution that are nothing more than snippets given to women as a remedy for any violence or sexual offences. Provisions like sec 498 (A), protection of women from Domestic violation Act, 2005. Sect 198(6) Cr.P.C. 1973 protection of children from sexual offences POSCO ACT 2012. Offer some amount relief and protection towards the society but still there is there is no specific kind of sec neither under IPC nor in Cr.P.C. neither under any articles under the constitution of India. So that we can clearly say that marital rape is a criminal offence. Even till date there is no proper legislation that criminalizes marital rape specifically. Scenario is one of the gravest stigmas of the Indian society. We can just hope for better future where proper legislation would be adopted under the IPC or in the Cr.P.C. or it could come under any Article of the Constitution of India. So that marital rape is treated as a proper criminal offence.
Author(s) Name: Mayank Srivastava (Shia P.G. College, University of Lucknow)