This is a short write-up on the captioned topic, which has always been an issue of debate amongst the social activists and legal luminaries. Recently, it caught the attention of people at large when the Indian Minister conveyed Government’s stand affirming that concept of marital rape cannot be applied in India as marriage is treated as a sacrament or sacred as per mindset of the Indian society. The said Minister stated in Parliament that “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament,”.
I write this blog with a disclaimer that it contains my assessment of the legal position regarding the notion of marital rape. I do not support the exclusion of marital rape on the ground that marriage is sacred, hence, any offence committed within its domain should be treated as `soft offence’. The whole premise of reasoning given by the said Minister is childish and illogical. However, by way of this article, I make a small attempt to educate the activists who are fighting for the cause of branding marital rape as full-fledged rape. I would definitely want to see the sexual offenders and wife beaters behind the besmirched and dingy prison cells but having said that, it’s important for us to understand the depth of the issue in hand and not to just examine it literally. Let us proceed to evaluate this concept of marital rape. There are huge load of statistics available on marital rapes having allegedly happened in India, I don’t intend to get into those caves as many have gone inside these and lit them adequately for all interested. I am going to place before you the logic and explanation in its natural flow. After all laws are nothing but a depiction of the belief, customs, traditions and conduct of the society at large, which it seeks to govern universally and uniformly.
Actually, this concept should be referred to as forced sex as against marital rape because the moment you use the expression rape then there can be no justification to exclude or exempt it from the purview of the legal provisions governing rape. Let us first examine the two words, which constitute or make the combined expression marital rape. Marital + Rape.
What is `Marital’? Marital means relating to marriage or the relations between a married couples. The synonyms of marital include matrimonial, married, wedded, conjugal, connubial, nuptial, marriage, wedding etc. Under the Indian legal system and also globally, there are provisions of law, which prescribe that a marriage can be annulled if it does not get consummated. In fact, absence of sexual intercourse is not only a ground for divorce but in some way makes the marriage voidable. What does consummate mean in terms of a marital relationship – it means `make (a marriage or relationship) complete by having sexual intercourse’. Sexual intercourse is a sin qua non of marriage i.e. condition precedent or condition imperative. I am not going into several judgements passed by the Indian Supreme Court laying down the essence of consummation i.e. sexual intercourse within marriage.
Innumerable marriages have gotten declared as annulled or negated by a decree of divorce where one spouse proved either no sexual intercourse from the other partner or even lack of it. Now, let’s pause here and ponder if there is lack of sync between the married couples, does that give right to the husband to forcefully have sex with his wife? certainly not but if he does that should he be prosecuted for rape? I will give my opinion once we evaluate further scheme of things surrounding this issue.
Now, what is `Rape’, as per Indian law, the two fundamental ingredients for rape to have got committed are – sexual intercourse (penetration being sufficient to constitute the same) + against the consent of the victim.
Now, if I was to combine both the definitions (of the expression Marital Rape), it would mean having (otherwise appropriate/ratified and essence of marriage) sexual intercourse with spouse against her consent. The whole ambit and scope becomes completely out-of-place and misconceived and flawed. I am not condoning the act of having sexual intercourse with wife without her consent BUT I AM DEFINITELY STOPPING SHORT OF CALLING IT A `RAPE’. It qualifies squarely as an act of domestic violence or even physical/mental cruelty so as to seek separation and even divorce. Will that not suffice?
Rape has an underlying yet overwhelming feature of `SEX’ and then entrapment to achieve that. This entrapment could be forcible or clandestine. However, in so called marital rape, there is `SEX’, which is implicit or inherent factum of a relationship with no entrapment BUT yes it’s undesirable or SEX having taken different notch.
It may be worthwhile to mention that there is a list of not less than a dozen provisions of law having criminal dimensions in favor of a married woman having been abused by her husband physically.
Hence, I would opine that branding forced sexual intercourse within marriage as rape would shake the whole institution of martial bond – with both spouses treating each other as strangers and aliens. Marital rape should be referred to as marital sexual abuse or violence leading to criminal punishment if there are physical injuries inflicted upon the victim in the said process of sexual intercourse; in the absence, thereof, the offence should qualify as an act of domestic violence and ground for separation/divorce.
Author: Hemant Batra*
*Hemant Batra is an Indian lawyer with nearly 24 years’ experience in diverse legal assignments. He is founder of a renowned international law firm and is also secretary general of saarclaw; he is recipient of mahatma gandhi seva award and is a visiting faculty to leading educational institutions; his profile can be accessed by clicking http://in.linkedin.com/in/hb15aug
New Delhi, India