In India generally where girls are not allowed to wear clothes by her own choice, she cannot go outside the house without the permission of her parents, cannot even eat of her own choice. So due to this much control she is not given choice to choose partner for marriage. After marriage girl leave her parental house and go to in-laws house to live with a dream in her heart that she will be loved, nourished, by her husband. She wants him to understand her and then they will go for any physical relationship. But all hopes of a girl go in vain when the husband forces her to make a sexual relationship with him even when she is not ready for that .
Any sexual intercourse between husband and wife without the consent/against the will of the wife is known as marital rape . The husband treats his wife as his property and therefore he considers his right that he can do anything with his wife. Even he considers that he can force himself upon his wife whenever he wants. The offence of marital rape is more painful for women because it has been committed by her husband. This is a kind of offence that is committed in a closed room by the husband with a certificate of having sex with her wife in the form of marriage. The offense is not only against the wife but it is also against the very basis of marriage. Trust, loyalty, respect, love are the very ethos of marriage between two people .
In ancient times the penalty against rape also involved paying compensation to the victim’s father or husband. Since the wife is considered chattel of the husband and a man cannot commit a crime against his own property, the question of marital rape doesn’t arise at all. It is even evident in Hindu Law and Muslim Personal Law that a woman is treated as inferior to a man. Her existence stems from her relation to a man; her father or husband. Hence, she cannot say that a man who has “ownership” over her has violated her or committed a crime against her.
Men and women were considered as two wheels of a chariot and they enjoyed their rights with equal fervor and zeal. It was, but natural, that in such an enlightened society the offence of rape was viewed as an invasion of a woman’s bodily integrity - and infringement of her self-esteem, dignity, and honor . Even then in India marital rape is not a crime.
International Scenario
There are some countries in the world in which marital rape is an offence. Particular law is there to punish the husband for making forcefully sexual relations with his wife. In the 20th century and particularly since the 1970s, women's rights groups started the anti-rape movement, demanding that they are to be given sexual autonomy over their own bodies, including within marriage. These rights have increasingly been recognized, and consequently, marital rape has been criminalized by about 150 countries . In a few countries, marital rape is criminalized by the court's judgments. Poland was the first country to criminalize marital rape .
Before we go into the effects of criminalizing marital rape, it is necessary to first see the historical context with regard to marital rape in different countries and various provisions governing it. The first legal statement regarding marital rape occurred in 1736. At that time chief justice of England, Sir Matthew Hale published the following in The History of the Pleas of the Crown:, said that
“A man cannot be held liable for making forced sexual relationship with his wife as in marriage a wife gave matrimonial consent to her husband, which she cannot retract” This statement later termed as The Lord Hale Doctrine and become a marital rape exemption which provides a shield to the husband that they could not be prosecuted for making forced sexual relationship with their own wife. Lord Hale solely relied on the theory of irrevocable consent to justify this exemption. Despite this, the Hale doctrine gained popularity in the U.S. legal system, which formally recognized the exemption in 1857 in Commonwealth v. Fogarty's decision.
The exemption of marital rape gained further popularity by the middle of the 18th century when Blackstone put forth the Unities Theory, which stated that the husband and wife are the same. As per this theory, women lost their own civil identities after marriage, and they become the property of their husbands. In Blackstone’s Commentary on the Laws of England, he wrote,
“Husband and wife is legally one person. The legal existence of the wife is suspended during the marriage, incorporated into that of the husband. If a wife is injured, she cannot take action without her husband’s concurrence.”
This ideology was still prevailing at that time and in the meantime, a new law was incorporated as The Married Women’s Property Act of 1889 which afforded women the right to manage their own property, work outside the home without the consent of their husbands, and keep their own wages. With this law, the women can hold property in their own name so theoretically, they cannot be held as property. Therefore, marital rape should have no longer been viewed as a legal impossibility. This point particularly countered Hale’s original notion of irrevocable consent. Despite this fact, marital rape remained legal for nearly another century.
The exemption of the marital rape defense became more widely viewed as inconsistent with the developing concepts of human rights and equality. Feminists and NGOs for women worked systematically since the 1960s to repeal the marital rape exemption and criminalize marital rape. In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women and states that this is against the dignity of women to vanish her rights .
After having all the declarations, Fights and Submission of Reports marital rape is still legal in some member states of the UN. It will be a challenge to determine the status of criminal law regarding the marital rape because, on the one hand, some countries have explicitly made this as an offense by creating particular laws on this or by stating that marriage is no defense against the charge of rape but on the other hand there are 36 countries including India where marital rape is still legal. It is considered that it is based upon the concept of "saat janamo ka bandhan" and this cannot be broken by making the husband an accused for the act which is actually his right. In such cases, in order to determine whether marital rape is covered by the ordinary rape laws, it must be analyzed whether there are judicial decisions in this respect and what the judiciary has said on this Law in other Countries
In 1932, Poland was the first country to make law criminalizing the offence of spousal rape. Then under the impact of the second wave of feminism in the 1970s, Australia was the country that follows the common law to criminalize marital rape in 1976. After that many Scandinavian countries passed the laws and make marital rape as an offense. India is one of 36 countries in this world where marital rape is still legal . Austria In Austria, both husband and wife are provided with equal rights regardless of their gender (Austrian Civil Code: 144). This partnership-oriented model was implemented in 1975, with the reform of the Austrian Family Law that at the time was still based on the General Civil Law Code of 1811. This model no longer considers the husband as the head of the family. Women can now decide if they want to keep their maiden name as it was before. Even though the Austrian law encouraged domestic responsibility should be taken by both males and females . The marital rape was criminalized in Austria in 1989. There it was made as a state offence which means that besides the complainant the state can also prosecute the accused on its own . Australia Between 1970 and 1980, in all states and territories of Austria, marital rape was criminalized both by statutes and judicial decisions. Earlier the exemption of marital rape was based on English common law offense of rape. In Queensland, the discussions were going on for the criminalization of marital rape but it was finally done in 1989. South Australia was the first country that deals with marital rape by partially removing the exemption. Section 73 of the Criminal Law Consolidation Act Amendment Act 1976 (SA) read: "No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person." In 1991, in R v L , the High Court of Australia ruled that if marital rape was exempted in common law of Australia than from now it is not included in the common law of Australia. In PGA v The Queen it was alleged in 1963 that husband rapes his own wife and he filled a petition in the high court claiming that a husband cannot be prosecuted for having forced wife with his own wife but the court dismissed his appeal and held that the husband can be held guilty for raping his own wife. We are in the 21st century and celebrating the 71st year of independence, the women in our country are still dependent upon male and continue to live under the darkness, fear and dominance of male. It is the harsh reality of India. It is to be noted that while on one hand, the country is celebrating some most important decisions from the Supreme Court of India like landmark judgments in the matter of 'Adhaar Card Case' , 'Triple Talaq' , 'Adultery' , 'Rights of LGBT' creating new cornerstones for the judiciary and on the other hand, the Central Government has denied to criminalize marital rape, by stating that India is not ready to accept marital rape as a crime. In India marriage is considered to be a sacred institution that forms the very basis of our society. It is the duty of the state to protect individual and to ensure that there will be no violation of their rights. It is considered that the institution of marriage is deeply personal and the state is reluctant to enter this sphere. Thus the state cannot force two individuals to get marry or to get a divorce. But sometimes this reluctance to enter into the private space of two people becomes problematic. For instance, in the case of cruelty, dowry death, marital rape, it will become the duty of the state to enter into these matters to ensure justice to the victim. The biggest problem is that there is a particular law for offenses like cruelty, rape, dowry death, but there is no particular definition and law for marital rape in India. At the time of marriage, the father gives 'KANYADAN' of girl to the boy and then the 'SAAT VACHAN' bound them for their next seven lives and they promise to each other to taste good and better experiences of life together. So it's their duty to respect each other's privacy and dignity. It is the duty of the husband to not only maintain and support her but also to protect her from oppression and wrong. In India, marital rape exists de facto but not de jure. But if we talk about another country, either the legislature has expressly made marital rape as an offense or the judiciary has played an active role in making this as an offense but in India, it seems that both legislature and judiciary are ignoring this fact from a very long time. Even the recommendation of Justice Verma’s report has no bearing on them . The primary aim of the 2013 amendment was to recommend a system where women can feel safe while discussing their problems faced by them under the veil of marriage. Marital rape is that issue which no women want to talk about because from the very beginning it is stored in their minds that after marriage husband is everything for a girl. Even if a girl talked about this with her mother after gathering a lot of courage, she got the reply that it is her fate and she has to accept it. Women are being told that their sufferings are a way of paying the sins they have committed in their past lives . "Indian families and society fill the place of God in a girl's life with a husband." For the protection of women body, dignity, self respect, modesty and trust in the institution of marriage, the recommendation of Justice Verma Committee should be implemented, all exemption in different laws should be removed and marital rape should me made a crime in India. "My husband raped me daily. He forced himself on me, every single day, even on the days I bled. He did not spare me all through the pregnancy and even till the last day of delivery of my child ... I want no woman to lose time to speak up against such an atrocity. Speak out early, so that you do not continue to suffer as I did. I was scared of him all along."....Now I am strong to reject such a man." (A woman on a TV program)..........From:- Palak Aggarwal ( Faculty at Infomaths)
