The International Legal And Social Landscape Of Marital Rape - Comparative Study
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THE INTERNATIONAL LEGAL AND SOCIAL LANDSCAPE
OF MARITAL RAPE: COMPARATIVE STUDY
Drishti Dutta, VIPS (GGSIPU)
ABSTRACT
Under the guise of sacrosanctity of the institution of marriage a millennium has elapsed in the denial of women's fundamental rights, including the prohibition of marital rape. Our nation is very hesitant to declare marital rape a crime in this day and age when gender equality is trying to find its place. Even though marital rape is a prevalent and repulsive kind of masochism in the world, the perpetrator's relationship to the victim is thought to be sufficient justification for not classifying it as a crime. Rape is often considered to be one of the most heinous crimes but the same crime has gone unnoticed by the same society because they are deceived by the concept of marriage and the cultural norms it is associated with. The problem of marital rape is not local or regional. Both gender discrimination and male domination over women are widespread issues.
Although the male's role in the relationship shifts from father to spouse to son, power still rules. The issue of male dominance in marriage takes the form of marital rape. No effort is finished in today's globalized society unless its international relevance is recognized.
INTRODUCTION
Marital rape, sometimes referred to as Spousal rape, is when a man has sex with his own wife without getting her permission. It lacks the element of permission, and although the spouse does not consent to it, they are nevertheless under intense pressure to fulfil their share of the marital duty and obligation. It is seen as both a type of sexual abuse and a domestic violence act. While having sex within a marriage was once thought to be both a moral obligation and an inalienable right of the couple, doing so without the other person's consent is now commonly known as rape in practically every nation. The act of physical and sexual abuse that the wife endures at the hands of her husband is an instance of non-consensual violence.
The husband may use physical force, threats of force to her or another person or implied harm based on prior assaults causing the woman to fear that any kind of physical force may be used against her if she resists. 1 Over half of the women do not disclose it because they believe it is their responsibility to give their partners sex. The stereotypes surrounding forceful sex are numerous and include the belief held by men that a woman's objections should be disregarded and that she has a duty to engage in sexual activity with their partner whenever he requests it, and the belief held by women that they are bad wives for not enjoying their relationships. 2 According to the data, 14% of women experienced spousal rape but did not disclose it. This percentage, however, understates the actual frequency of rape in marriage.
More over 25% of the women admitted to having been raped and reported it. Marital rape was not at all regarded as a crime in the early 1600s. According to the Chief Justice of England at the time, a husband cannot be accused of raping his wife because they are bound by a nuptial knot, to which the wife has already given her agreement and cannot withdraw. The laws have always given the spouse immunity based only on the marital relationship. Victims of marital rape sustain lifelong physical and psychological trauma so severe that it renders them permanently paralyzed. Some women stay in relationships even after enduring such abuse for a variety of reasons, such as a fear of violence or having children. Because of the predominance of a male-dominated society, women have always been viewed as having submissive and meek roles in society.
Due to the taboo nature of sexual activity, there is still a lack of awareness regarding it. Wives are required to be submissive and follow their husbands' 1 Sangamithra Logananthan; Marital Rape in India; Indian journal of Law and Legal Research vol II, issue III; Page no. 115 2 Priyanka Rath “Marital Rape and Indian Scenario”, 2007, Indian Law Journal; vol I, issue II, page no. 67 instructions, and their husbands have the right to request any favour at any time of day by any means necessary. While certain US states have made marital rape illegal, many other nations have not done the same and no special legislation has been created to recognize marital rape. The idea of marital rape is the pinnacle of what is known as implied consent; women are assumed to have automatically granted consent when they marry, and their husband is then free to violate both her privacy and her body.
In India, there are no official laws against marital rape. The Indian Penal Code's section 375 originally set a maximum age of 15 years; however, a recent ruling by the Supreme Court of India has raised that age to 18 years. There are no strict rules against rape because the government feels that if there were any, marriage as an institution would be abolished and everyday values would be diminished. A committee led by Justice J. S. Verma was formed to explicitly address the issue of marital rape legislation, recommend that the exception for marital rape be eliminated, and clarify that married status is in no manner a defence for rape. The atrocity of marital rape persists because of inadequate rules and gaps in the legal system, and innocent women are the targets of this repugnant act's fury.
The mindset that many individuals in the society still adhere to is the reason we are still lagging behind it and do not have a relevant legislative change. They center on the term "consent," which they define as the implied permission granted by a wife to her husband. The necessary law policies or legal reforms that the legislators need to draft remain a mystery to them. They use it as a pretext to claim that women will abuse the same rights and that marriage as a fundamental institution will be abolished. Since the entire system is flawed, the judiciary is unable to respond to this situation. 3 THE CONCEPT OF MARITAL RAPE IN INDIA The adoption of laws against marital rape has been seen to have been deferred due to concerns that the laws would violate the integrity of marriage, a revered institution.
The government has provided numerous defences for not making marital rape legislation a crime. Under section
375 of the Indian Penal Code4, "rape" has been expressly made illegal under Indian law. This
clause defines "rape" as an offense in and of itself, and it does so in a way that encompasses a
3 S.N Mishra, Indian Penal Code, Edition 2017(HB).
4 Indian Penal Code, 1860; section 375(definition of rape)
wide range of activities. Sexual intercourse and penetration have been incorporated, and the penalties have been revised to include life in prison and, in certain situations, death. However, there is no legal reference of a crime similar to marital rape; instead, section 375 has an exception appended that states that a man's sexual relations with his own wife, as long as she is not younger than fifteen, is not considered rape. As a result, there is no legal mention of an offense similar to marital rape. Therefore, a husband having sexual relations with his own wife after the age of fifteen is not committing rape. Marital rape is not covered under Section 375, so if the wife is not younger than fifteen, the husbands may carry out the act without being held accountable for it.
A cursory reading of exception 2 of section 375 of the IPC5 literally, husbands would be free to do as they choose and even coerce their wives into having relations against their will. Looking at the exemption clause, it may be extrapolated that there is no such thing called marital rape and the whole matter revolves around the definition and term of Consent. In the event of a legitimate marriage, the consent of the woman cannot be drawn from a single incidence since it becomes a technical point and cohabitation between the spouses is clear. However, if consent is provided and the conduct is voluntarily, then it does not amount to rape. Section 376 B6 of the Indian Penal Code is the sole legal provision in India that allows a husband to be punished for having sexual relations without the agreement of his wife if they do not live together.
If we follow the definition once more, we will see that consent is mentioned again and is a requirement for the rape offense. Rape will only occur if the spouse performs an act under duress for which the victim has not given her consent. Even though rape is now illegal in the state, permission is still required. It is assumed that the wife has given her consent if the husband and wife are living together, however this isn't always the case and can lead to conjecture and interpretation. It has always been against the law for a man to rape a woman, let alone his own wife. This is especially wrong when the victim is the husband's wife, as it is deeply disheartening for her to be unable to trust her closest companion. The woman was previously thought of as a puppet in the hands of her husband and in-laws. She received the most callous and inconsiderate treatment possible.
She was supposed to attend to their wants and wishes and maintain silence at all times. Women are treated nearly the same way today as
5 Indian Penal Code, 1860; section 375 Exception 2
6 Indian Penal Code, 1860 (Section 376B)
they were in the past due to this mentality7. Another instance from 1785 was the case of Weishaupt V. Commonwealth8 where the wife's unwillingness to engage in sexual activity was used as a ground for divorce, and the husband used this as justification to grant the wife a divorce. Even if the husband should be punished for the behaviour, which is so horrible and unlawful, there are still no laws that apply to him, so he continues to hide behind the marital veil. THE EVOLUTION OF THE MARITAL RAPE EXEMPTION The IPC has included the Marital Rape Exemption provision since its commencement. Significant changes have not been made to the "Marital Exemption" clause since that time. In the Macaulay Draft Penal Code, Rape was defined under section 359 in the initial draft. There were five conditions that would qualify as rape.
Without her will, against her consent, when consent was acquired by making her fear harm or death, when consent was obtained on the assumption that she was married to that individual, and if consent was given when she was younger than nine years old. Clause 359 was changed to section 375 by the time the Indian Penal Code was officially passed in 1860. The draft and the section's definition of rape are nearly identical. Only minor adjustments were made. The exemption clause makes clear that it was assumed that a married woman gave up her right to resist having sex with her husband. The first law commissioners believed that marital rape should be treated differently from rape and did not think it appropriate to include voluntary sexual relations between a man and his own wife under the definition of rape. The age of consent was raised from nine years in the fifth clause to ten years.
• The fifth provision was amended in 1925, raising the consent age from 10 to 14 years old. • The fifth clause's age of consent was raised from 14 to 16 years old once again in 1949. The Tukaram v. State of Maharashtra9 case, also referred to as the Mathura rape case, led to a significant revision and overhaul of the nation's anti-rape legislation. Following the 1983 revision, the third clause was changed to include consent that was gained by instilling fear of 7 Mythri Ramesh; Indian Men can Lawfully Rape their Wives, when will they change; NUJS Law Review Vol III issue II Page 214
8 315 S.E.2d 847 (1984)
9 AIR 1979 SC 185.
harm or death in anybody other than the victim. In the past, the victim alone might receive protection when they were in danger. The age of consent was raised to sixteen years old, and the fifth clause became the sixth. A fifth necessity was introduced to the definition of rape, which disregarded consent offered by a drunken or unsound woman who was incapable of understanding the conduct to which she had given her consent. There were also added new definitions for severe forms of rape, such as gang rape, pregnant woman rape, and custodial rape. The 2013 amendment resulting from Mukesh & Others. v. State of NCT10 brought about a significant modification to the rape statutes. Broadening the definition of rape was the first significant modification that occurred. These days, it encompassed not only penile vaginal sex but also oral insertion, anus, and so on.
The definition also covered the insertion of any other body part or item. Mouth contact with a woman's urethra, anus, or vagina was also included in the definition. The age of consent was raised to eighteen years old in the sixth clause from sixteen. The word was also defined for the first time in relation to rape in explanation section
375. In India, rape laws have typically been amended following a horrific and brutal incident.
Regarding the most recent 2018 change to the Indian Penal Code, it resulted from the rape cases that are widely known as the Unnao and Kathua cases, namely State of Jammu & Kashmir v. Deepak Khajuria11 and CBI v. Kuldip Singh Sengar12. The punishment was the main focus of this modification rather than the concept of rape. Ten years is now the minimum penalty instead of the previous seven years. For the first time, rapes against minors younger than twelve years old now carry the death penalty under section 376AB. The government was forced to change the rape law's exemption provision in 1891 after a case
13 was filed that caused a public uproar. The facts of the case were that a girl child who was
just 11 years of age was married off to the accused (husband). The cause of her death was excessive bleeding caused by ruptured vagina due to sexual intercourse performed upon her by the accused (husband)14. The husband was charged with culpable homicide not amounting to murder, having caused his wife’s death; he was also charged with having voluntarily caused grievous hurt; having caused the death by a rash and negligent act and having caused her
10 Mukesh & Anr. v. State for NCT of Delhi & Ors. (2017) 3 SCC 717
11 2005 (1) JKJ 169; Kushagra Kaushik, “Rape Cases that Shook India”, Lawyers Club India, May 08, 2020
12 Crl.M.A.No.955/2020.
13 Queen-Empress v. Hurree Mohun Mythee, ILR (1891) 18 Cal 49.
14 Anvesha Kumar & Ipshita Mazumdar, “Bride and Prejudice - Marital Rape and the Indian Legal Dilemma” 2 NLUD Student Law Journal 15, 17 (2013) available at: SCC Online Web Edition: http://www. scconline. com grievous hurt by an act so rashly or negligently done as to endanger life15. This case was discussed extensively in public meetings, medical textbooks, and among members of the Viceroy's Legislative Council in India. It also sparked efforts to increase the legal age of consent for marriage, both inside and outside of marriage, in order to better protect girls like the child victim in this case. The Indian Criminal Law (Amendment) Act 1891 was the result of a Bill proposed by Sir Andrew Scoble in 1891. It increased the age of consent to 12 years for both marital and extramarital rapes.
According to Sir Scoble, "where a proved necessity existed, the State has the right and duty to interfere for the protection of any class of its subjects. 16" The humanitarian goal of the bill was "To protect female children from immature prostitution and from premature cohabitation”17. communities and classes, social workers, and physicians. The primary issue posed to the Committee was whether the law concerning the Age of Consent in circumstances involving marriage and non-marriage should be improved in any way. Most people agreed that banning girls under a certain age from marrying would be a better policy than raising the legal age of consent for sex. Thus, the Committee noted that a rule should be passed setting the minimum age of marriage for females at 14 years old in order to combat the evils of early marriage and early consummation as efficiently as possible.
INTERNATIONAL PERSPECTIVE ON MARITAL RAPE Marital immunity from the crime of rape has been extended to spouses throughout for ages18. Marital rape was not acknowledged as a legal issue until the latter part of the 20th century19. Even in the middle of the 20th century, no nation considered it illegal for a husband to force his wife to have sex with him20. The battle for women's protection and equal rights has resulted in changes to criminal laws over time, with many nations eliminating the exemption for marital rape. Indeed, the marital rape exemption has been totally abolished in dozens of developed countries. Having said that, marriage rape carries a lighter sentence than non-marital rape. For
15 Queen-Empress v. Hurree Mohun Mythee, ILR (1891) 18 Cal 49
16 Age Of Consent Committee (1928-1929), “Report (1928-1929)” 10 (1929)
17 Ibid.
18 Theresa Fus, “Criminalizing Marital Rape
A Comparison of Judicial and Legislative Approaches” 39 Vanderbilt Journal of Transnational Law 482 (2006) available at: Hein Online (last visited on April 6, 2024). 19 Melisa J. Anderson, “Lawful Wife, Unlawful Sex-Examining the Effect of the Criminalization of Marital Rape in England and the Republic of Ireland” 27 Georgia Journal of International and Comparative Law 139 (1998)
20 Theresa Fus, “Criminalizing Marital Rape
A Comparison of Judicial and Legislative Approaches” 39 Vanderbilt Journal of Transnational Law 484 (2006) available at: Hein Online (last visited on April 6, 2024). instance, in England, between 1985 and 1997, the rate of rape reports more than tripled, but during the same time, the conviction rate fell from 24% to 9%21. Nonetheless, the legislature has lagged behind the judiciary in a number of nations where the former has been the primary driver of reform. The status of marital rape varies throughout the world, and most nations have laws that are specifically targeted at women. In most other countries, rapes that occur within marriages are also illegal under the law, making marital rapes just as serious as regular rapes. Legislators and judiciary avoided changing any rape-related laws for a very long period, and they believed that spousal rape was impossible.
This kind of inadequate foundation was evident in the Mandy Broadman case, in which the husband drugged and unconsciously raped his wife over a threeyear period. Because this violence and brutality occurred during a marriage, it should not be ignored. It is awful, impolite, and a transgression against the most fundamental principles of human comprehension. These cases also serve to highlight social injustices, what is improper in a certain situation, and the demeaning influence that families have on how women are treated. Rape is intrinsically evil and violates a woman's rights while also demonstrating a total disregard for the existence and fundamental rights of all people. When a woman is the victim of sexual assault, her most fundamental rights are violated.
One crucial factor is that a disturbing crime against women shouldn't be justified simply because the attacker is the victim's relative. Women's financial stability is viewed as a weakness and has been used by society as an excuse to mistreat and devalue them in comparison to males. In the Indian context, it is deemed preferable to endure silent suffering rather than speak out against the male partner. Not much has changed in Indian law, despite the fact that many other countries have made changes to their laws regarding marital rape, such as making it a criminal crime and doing away with the distinction between marital rape and other types of rape.
Albania, Australia, Belgium, Canada, China, Denmark, France, Hong Kong, Ireland, Italy, Japan, New Zealand, Norway, Philippines, Scotland, South Africa, Taiwan, Tunisia, UK, USA, and Indonesia are among the nations implementing these changes. Spousal or marital rapes are against the human race and violate an individual's most fundamental rights, as shown by the criminal status of the offence in these countries. 21 Kate Warner, “Sentencing in Cases of Marital Rape: Towards Changing the Male Imagination” 20 Legal Studies
593 (2000) available at: Hein Online (last visited on April 6, 2024).
CRIMINALIZATION OF MARITAL RAPE: INTERNATIONAL PERSPECTIVE
1 UNITED KINGDOM
The husband and wife were recognized as a single legal personality under English law. According to Sir Mathew Hale's 1736 declaration, "The wife hath given herself up in this kind unto her husband, which she cannot retract22," meaning that the husband cannot be held accountable for a rape he commits on his lawful wife. "A husband cannot by law be guilty by ravishing his wife, on account of the matrimonial consent which she cannot retract," according to the Treaties of the Pleas of the Crown23. In the R v. Clarence case24, the husband had a sexually transmitted disease that he transmitted to his spouse through intercourse. He was found guilty by the trial court of assault and unlawfully causing grievous bodily harm. On the other hand, a thirteen-judge bench overturned the conviction due to Hale's preposition.
In the first instance, despite the husband's cruelty, no charges could be brought against him. The R v. Miller25 case marked the next phase in the prohibition of marital rape. In this instance, the husband had sexual relations with the woman against her will while the divorce petition was pending. The husband was accused of both assault and rape. Assault was permitted, but rape accusations were dropped. The judge Lynskey stated: “Although the husband has a right to marital intercourse, and the wife cannot refuse her consent and although if he does have intercourse against her actual will, it is not rape. , nevertheless he is not entitled to use force or violence for the purpose of exercising that right. If he does so, he may make himself liable to criminal law, not for the offence of rape, but for whatever other offence the facts of the particular case warrant.
If he should wound her, he might be charged with wounding or causing actual bodily harm, or he may be liable to be convicted for common assault. ”26 In the case of R v. Kowalski27, an instance of forced oral sex took place. The husband was accused of indecent assault for this act, and the court decided that the wife's implicit
22 History of the Pleas of the Crown
1 Hale P C (1736) 629.
23 In the Treaties of the Pleas of the Crown
1 East P C 446.
24 (1888) 22 QBD 23.
25 (1954) 2 AII WR 529
26 (1954) 2 AII WR 529
27 (1987) 86 Cr. App. R. 339
consent to sex during their marriage only applied to vaginal sex and not to any other kind of deviant sexual act. The case of R v. Sharples28 established that obtaining an order from the family protection court does not necessarily mean that the wife has revoked her consent to engage in sexual relations.
2 UNITED STATES OF AMERICA
There was a period in American history when marital rape was exempt in every state. This loophole gave the husband permission to rape his wife without worrying about facing legal repercussions. However, the push to make marital rape a crime began to gain traction over time as women's equality became more and more demanded. The movement opposing the criminalization of marital rape took many different forms and marched in different directions. The movement for voluntary motherhood was one of the struggles that had its start in the late 1800s. At its height, women were able to "make pregnancy, childbirth, and motherhood matters of conscious choice" thanks to the demand for reproductive autonomy29. For a while, the demand for sexual autonomy was limited to the rights to abortion and the use of contraceptives30.
The problem of forced sexual relations in marriage was totally ignored at this stage. The following stage, the outlawing of domestic abuse, gradually took hold. The following stage, the outlawing of domestic abuse, gradually took hold. Subsequently, the movement advocating for sexual autonomy emerged. Women's voices began to rise against the stereotype that rapes only happen between strangers during this movement. Then came the need for legal penalties against the act of marital rape as well as social acceptance of the crime. Courts gradually began to uphold women's rights and free them from their husbands forced sexual relations. Even while there are some well-established general tendencies, when change is brought about by legislative changes, each state takes a different stance, therefore there is no uniformity.
While some states just restricted the application of the exemption, others totally eliminated it. The judicial review function was exercised by the courts to declare the marital exemptions illegal. Many courts consistently argued that the exemption went against the equal protection guarantee of the Fourteenth Amendment. A few courts also used the First Amendment, arguing that the exception infringed upon the rights to
28 (1990) Crim LR 198
29 Gordon, Linda. “Voluntary Motherhood; The Beginnings of Feminist Birth Control Ideas in the United States.”
1 (4) Feminist Studies 5–22 (1973)
30 David Finkelhor, Kersti Yllo, License to Rape
Sexual Abuse of Wives (Free Press, New York, 1987) privacy and freedom of association. By 1993, all states had made marital rape a crime, either by legislation or court orders31.
3 NEPAL
In Nepal, violence against women is widespread and severe, occurring in both public and private settings. Gender stereotypes and ingrained patriarchal attitudes broaden this even more32. "One of the main factors legitimizing violence against women in Nepali society is the prevalent uneven gender relation33. ” Prior to the creation of the new penal code, the Supreme Court of Nepal rendered an extremely significant ruling in the FWLD v. His Majesty's Government34 case. In the current case, the petitioner argued that the chapter on rape violates numerous international treaties and conventions that Nepal is a signatory to, as well as the equality and privacy section of the Nepalese Constitution by not criminalizing marital rape. However, the Nepalese authorities denied that making marital rape a crime would be against Hindu customs and traditions.
The Court noted that rape is an inhumane act that breaches the human rights of women. It also directly and seriously affects women's rights to selfdetermination and individual liberty. A woman who has been raped suffers severe physical, emotional, familial, and spiritual injuries. It also permanently damages her existence and sense of self-worth. Rape is a serious crime against society as a whole as well as the victim. Women have the same rights as everyone else, including the right to an independent life and the ability to choose how they want to live. The exercise of the aforementioned rights before and after a woman is married doesn't seem to make any sense. Matrimony does not enslave a woman; hence, married women retain all of their human rights. A woman is deprived of all of her basic human rights if she permits her spouse to rape her.
To put it plainly, it is arbitrary to declare an act to be lawful only because of the victim-accused relationship, if the act is unlawful in and of itself. Irrespective of the perpetrator or victim, a crime remains a crime. The respondent's religious arguments were also addressed by the Supreme Court. The court ruled that the idea that the Hindu faith condones the horrible crime of raping a 31 Raquel K. Bergen, Wife Rape: Understanding the Response of Survivors and Service Providers. Thousand Oaks (Sage Publications, California, 1996) 32 UNHR, “Special Rapporteur on Violence against Women, its Causes and Consequences, Report on Country Visit to Nepal” para 27 (June 19, 2019).
33 OHCHR, “Nepal Conflict Report, 2012”
34 Writ no. 56 of the year 2058 B.S; The Global Health and Human Rights Database, “Women, Law and
Development, Nepal, 2002 wife is a complete distortion of the religion. Hindu religious writings and customs constantly emphasize the sacredness, sincerity, and love in a married relationship. Violence has no place here. The court did acknowledge that although marital rape is an offense that might result in punishment, the effects of rape by a spouse and by a stranger are not the same. The provisions in the chapter on rape solely address rape perpetrated by a third party; there is a legal vacuum that results from a husband raping his wife. There is no provision for a divorce or for immediate separate residence. In light of this, the court also issued an order to the Ministry of Law, Justice, and Parliamentary Affairs to introduce a bill that would make the required revisions to close the aforementioned gaps.
Additionally, to modify the law as necessary to offer a comprehensive defence against marital rape.
4 BHUTAN
The distinctive aspect of Bhutan's rape laws is that the word "marital rape" is recognized independently and is not gender-specific. According to Section 177 of the Bhutan Penal Code, a person is considered guilty of rape if they have sexual relations with another person: i. “Obtains consent with or without the subject's agreement, provided that consent is obtained by instilling fear of death or severe injury in the subject or a third party; ii. Uses force or threats of impending death, bodily harm, serious bodily harm, or the commission of a crime in the subject or a third party; iii. Significantly impairs the subject's capacity to judge or regulate behavior by giving drugs, intoxicants, or other substances without consent in order to prevent the subject from objecting to sexual activity; or iv. Makes the subject unconscious in order to engage in sexual activity.
”35 However, section 199 of the statute defines marital rape. It is defined as follows: "If a defendant has sexual relations with their own spouse without their consent or against their spouse's will, they will be guilty of marital rape. "
35 Penal Code of Bhutan, 2004, s.26
Although all forms of marital rape are illegal under the penal code, their position is far lower than that of regular rape. Ordinary rape was once considered a fourth-degree felony, but marital rape is now only a minor misdemeanour. It is implied that marital rape is not a serious crime by the process of classifying offenses and treating it as a minor misdemeanour. Moreover, marital rape is a compoundable offense as a minor transgression, meaning that the court may dismiss the criminal proceedings against the accused in exchange for the accused paying the victim's compensation36. The Amendment Act of 2021 brought about changes to the Penal Code of Bhutan. As a result, rape was downgraded from a fourth-degree felony to a third-degree felony37, carrying a five-to nine-year jail sentence. Rape used to be punishable by three to five years in prison.
The consequences for marital rape haven't been raised, though. Bhutan, a relatively new democracy, has made marital rape a crime. It is imperative to acknowledge that Bhutan is not a model nation when it comes to safeguarding women from crimes. Even though there was at least one step forward, the punishment is somewhat light and there are still more challenges. Bhutan tried to establish spousal rape as a crime by at least recognizing it. In this regard, much more work needs to be done, but much work also needs to be acknowledged.
5 AUSTRALIA
South Australia was among the first countries in the world to change the husband's marital immunity by statute in 197638, that year saw an amendment to the rape law, which now defined rape as follows: "No one should be found guilty of rape or indecent assault upon his spouse, or an attempt to commit the same, unless the alleged offence consisted of, was preceded or accompanied by, or was associated witha) an assault that results in actual bodily harm to the spouse, or the threat of such an assault; b) an act of gross indecency, or the threat of such an act;
36 Penal Code of Bhutan, 2004, s.70
37 Penal Code of Bhutan, Amendment Act, 2021 available at
https://www. nab. gov. bt/assets/uploads/docs/acts/2021/Penal_Code_Amendment_Act_of_Bhutan_2021. pdf (last visited on July 07, 2024) 38 Kos Lesses, “PGA v the Queen - Marital Rape in Australia: The Role of Repetition, Reputation and Fiction in the Common Law” 37 Melbourne University Law Review 787 (2014) c) an act that is purposefully and significantly designed to humiliate the spouse; or d) the threat that a criminal act will be committed against the individual39. In a 1976 Parliamentary argument, the State Attorney-General declared, "We believe that all laws that treat a wife as her husband's property should be repealed or amended. " All adults should have the freedom to agree to sexual relations both inside and outside of marriage40. Since only "aggravated rape" was forbidden in marriage, marital rape was never explicitly recognized by the law as an offense.
This was the law up until 1992, when a rape charge was changed to ignore a victim's marriage to the alleged offender41. The 1976 amendment omitted a clarification about the nature of the repeal of marital immunity: was it retrospective or prospective in nature. Actually, this matter was not revisited until it became a major point of contention in the P, GA v. The Queen cases. The three-year statute of limitations on rape cases was eliminated in 1985 with the repeal of S. 76A of the Criminal Law Consolidation Act. The South Australian Supreme Court held in R v. Pinder that the repeal of S. 76A had only prospective effect in 1989. However, in 2003, a new section 72A granted the repeal of S. 76A retrospective effect, allowing convictions and prosecutions that had previously been time-barred. In Australia, common law marital immunity was abolished, as evidenced by the R. v. L. case42.
The High Court in this decision discussed marital immunity in general and questioned whether "Matthew Hale's proposition"43 ever fairly represented common law. The majority held that "marriage was constituted by the consent of the parties as required by law, but that the ecclesiastical courts never enforced any duty of sexual intercourse between husband and wife, nor was consummation a legal requirement to complete the marriage. " It was therefore argued that since having sex is not a
39 Criminal Law Consolidation Act (1935-1976), s. 73 (5
40 Peter Duncan (Attorney-General) South Australia Legislative Council, Parliamentary Debates
41 Criminal Law Consolidation (Rape) Amendment Act (No. 9 of 1992)
42 (1991) 174 CLR 379.
43 Sir Matthew Hale’s propositions regarding marital immunity have been discussed at length in the chapter on marital rape. necessary condition for consummating a legal marriage, neither side can force the other to have sex. STATUS OF MARITAL RAPE IN DIFFERENT COUNTRIES In most major jurisdictions, a husband's immunity from prosecution under rape laws has been eliminated. Poland (1932), Czechoslovakia (1950), and the Soviet Union (1960) were among the first few nations to make marital rape a crime. All fifty states in the United States, three states in Australia, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, the Soviet Union, Poland, and Czechoslovakia, among several other nations, have made marital rape illegal. In the C. R. v. UK case, the European Commission of Human Rights ruled that a rapist is a rapist regardless of the victim's relationship to him.
The problem of marital rape is not local or regional. Both gender discrimination and male domination over women are widespread issues. Although the male's role in the relationship shifts from father to spouse to son, power still rules. The issue of male dominance in marriage is known as marital rape. This is a common issue where a husband feels that he owns his wife. No effort is finished in today's globalized society unless its international relevance is recognized. In the landmark judgement of Anuj Garg & Ors. v. Hotel Association of India44 established a precedent that allows Indian courts to constantly refer to and rely upon international treaties, provided that they do not conflict with local law. In actuality, domestic courts have a duty to consider international covenants appropriately.
The Beijing Declaration and CEDAW were relied upon by the Supreme Court in the Gita Hariharan v. RBI45 case as evidence that women cannot be treated like inferiors. This has to do with her rights as a guardian. In the same direction, Justice V. R. Krishna Iyer identified in the section 51 interpretation of the CPC in the case of Jolly George Varghese v. Bank of Cochin46 that our framers took inspiration from other constitutions during the drafting process, so the argument that we shouldn't refer to the rulings of other international jurisdictions is erroneous. Furthermore, this reasoning ignores the reality that we live in a globalized world where ideas, beliefs, and opinions are constantly traded.
44 AIR 2008 SC 663
45 (1999) 2 SCC 228
46 (1980) 2 SCC 360
S. No. Country Status In 1983, the criminal code's clauses that excluded marital rape from criminal prosecution were removed. In Canada, it is currently illegal for a husband to rape his spouse. Furthermore, the 2011 case of R v. J. A. by the Canadian Supreme Court highlighted that the nature of the investigation into whether the complainant gave consent to sexual activity remains unchanged whatever the nature of the connection between the accused and the complainant. 1. Canada Marital rape was made a crime in 1993. A husband may be found guilty of raping his own wife, according to Section 5 of the Protection from Family Violence Act of 1993. A victim's or perpetrator's marital status or other relationship is inadmissible as a defense to the crime of rape or sexual violation, according to section 56(1) of the 2007 Criminal Law Criminal Law (Sexual Offenses and Related Matters).
This nation has gone one step further and made it illegal to commit marital rape. It has also made sure that sentencing guidelines do not grant any leniency based on marital status. The relationship between the parties may not be recognized as a major and compelling element that authorizes a modification from the legally mandated minimum term for rape, according to the South Africa Criminal Law (Sentencing) Act,
2007. To put it simply, Canadian law guarantees that a spouse
cannot be the justification for a lesser sentence than the minimum required for rape. 2. South Africa 3. Finland Finland criminalized marital rape in 1954 In 1997, the definition of rape was expanded to include gender neutrality and the elimination of the marital exception, which made marital rape a crime. 4. Germany 5. Bosnia & Herzegovina Outlawed marital rape in 2003 6. Portugal Outlawed marital rape in 1982 7. Serbia Outlawed marital rape in 2002 8. Hungary Outlawed marital rape in1997 9. Luxembourg The Court of Appeal upheld the application of the penal code's rape provisions to marital rape through a ruling. 10. Netherlands Outlawed marital rape in 1991 marriages. "For combating domestic violence" is the name of the act. 16. Liechtenstein Outlawed marital rape in 2001 17. Colombia Outlawed marital rape in 1996 18. Chile Outlawed marital rape in 1998 19.
Thailand Outlawed marital rape in 2007 20. Papua New Guinea Outlawed marital rape in 2003 21. Nambia Outlawed marital rape in
2000 CONCLUSION
Sexual assault is the most severe way that women in patriarchal societies are subjugated. In addition to undermining women's bodily autonomy, it also places restrictions on their ability to preserve their individuality and the status quo of gender equality. An All-sexual violence is just a means of using another person's suffering and insults to demonstrate one's dominance. Along with physical and emotional abuse, sexual violence targets sexual victimization. The primary cause of sexual violence is the patriarchal problem that permeates our sociocultural surroundings. Sexual assault is a common occurrence among families. The institution of marriage serves to grant partners the moral and legal right to cohabitate. Man and woman have the right to live together in marriage, which is a stable commitment that also grants them the social sanctity of procreation.
When it comes to physical intimacy in a marriage, consent is still a touchy subject. However, Susan B. Anthony's assertion, which goes as follows, appears to be precisely correct.
“Men will acknowledge women as equals one day, not just at the dinner table but also in national councils. At that point, and only then, will the ideal union between the sexes emerge, resulting in the greatest advancement for humanity” The status of women is essentially the same throughout the entire nation, from Kashmir to Kanyakumari. Legal equality, social safety, and justice are essential necessities for women. Since it undermines women's identity and gender norms, marital rape is unquestionably a grave matter. A friendly attitude should be given to a modification in the rape law. It is essential to improving society as a whole. The goal of making marital rape a crime is to establish the concept of unambiguous sexual consent rather than to imprison all men. We are unable to support the mentality that views "marriage as a license to rape.
” Marital rape is not a one-time event; rather, it is a persistent problem that creates a lasting, negative memory. Marital rape has long been recognized as a social problem, but it has always been hidden behind a thick veil of secrecy, with society's key players remaining silent observers. The idea of marital rape is out of place in a society where a wife is expected to tolerate her husband's actions. The ancient patriarchal societal phenomena, in which the patriarchy also believes marital rape to be justified, provides the historical foundation for the idea that such crimes are exceptional.
Because women are taught that men should rule over them at all times first from their fathers, then from their husbands, and finally from their sons when they are elderly, they are socialized to accept this fact and are taught that if a woman rejects it, she is not a good woman who the community can look up to. This study has revealed that societal opinions are not in agreement. There are those who support criminalizing marital rape and those who oppose it. There are those who argue that marital rape should not be criminalized because this will lead to more cases, some of which may be false accusations. On the other hand, those who support criminalizing this offense cite the right to equality as a foundation for their position. It is said that India already has a plethora of legislative measures that address marital issues in one way or another.
Numerous legislations, such as the Hindu Marriage Act of 2005, the Domestic Violence Act of 2005, and IPC provisions like section 498A, are focused on women and have become more detailed than before. It is argued that making marital rape a crime would put an unnecessary burden on the courts and give wives a way to exact revenge for all the wrongdoings committed by their husbands because the nature of the offense makes it difficult to determine whether the husband was the perpetrator or simply a victim at the hands of his wife. Those who are against making marital rape a crime further argue that India's cultural fabric perpetuates a deep sense of cultural identity among its people. It is believed that because of their poverty and lack of education, people still adhere to outdated customs and see marriage as sacred.
Additionally, the current climate does not support the legalization of marital rape. Since women are still seen as the husbands' property, there is little acceptance of the reality of marital rape and its need to be criminalized. This mindset has existed for as long as women have been married. The Supreme Court noted in Arnesh Kumar v. State of Bihar47 that women are using section 498A of the Indian Penal Code just to exact revenge on their spouses and to defend themselves even in light hearted altercations where neither party is in any way in danger. Additionally, it has been observed that only 15% of dowry prosecutions result in convictions; the remaining instances are either fictitious or of the kind where a settlement can be reached outside of court.
This research has also revealed that the argument put up by individuals opposed to criminalizing rape is that consent is evident in marriages and that the wife's consent is implicitly given after she consents to exchange vows and marry the man. Sir Mathew Hale of England stated as early as the 17th century that a husband could never be guilty of raping his own wife since it is legal and appropriate for him to be in such a relationship at the time the crime occurs. The view held by those who oppose marital rape is that there are not as many incidents of marital rape as there are of other offenses, such as rape. Marital rape cases, in particular, are seen to be extremely rare. Although marital rape is not so widespread in society, there may be other marital issues.
However, it is discovered that the reason there are fewer instances of marital rape is because the victim's wife is reluctant to disclose the crime because she feels ashamed of herself. Men may have consented to use violence against their women in certain situations, but they remain silent when it comes to marital rape. According to the National Health Family Survey, incidences of abuse are also found in households where sexual abuse is still the least common. According to the 2006–07 survey, there are fewer cases overall, and creating a new offense is not necessary rather, the current laws may be of assistance. In addition, the judges' primary goal while handling a marital disagreement is to work toward a solution that will hopefully save the marriage by resolving disagreements and preventing
47 2014 (9127) SCC
miscommunication between the partners. Marriage is the primary institution that outlasts society and is the most reliable one; it should be preserved at all costs. However, proponents of criminalizing rape argue that, even in the lack of a particular rule on the subject and with exception 2 of section 375 of the Indian Penal Code, women cannot be permitted to suffer silently in the bondage of marriage and bear the weight of marital rape. The Delhi High Court received numerous petitions and statements from campaigners arguing that section 375 of the Indian Penal Code's exemption 2 is unconstitutional and needs to be removed. The conclusion is that women are routinely raped by men in their marriages, which undermines their sense of worth, decency, and confidence.
A wife who has experienced sexual abuse also suffers from mental health scars, but she chooses not to disclose it because she believes it would be difficult for her to prove that the forced sex was done against her will, and the husband could use the wife's refusal to have sex as grounds for divorce. She thus ends up losing the case in both scenarios. All that these spouses who are regularly the victims of marital rape can do is endure it by remaining silent, which makes it all the more necessary that they have legal protection in the shape of strict legislation against marital rape. As the role of the wife in a married relationship has evolved to become that of an equal partner rather than merely someone to satiate her husband's whims and fancies, there have been changes in the patterns around marital rape.
Exception 2 of Section 375 of the Indian Penal Code is still in conflict with regards to the initial recognition of marital rape as a crime for which punishment is also possible. "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape," according to exception 2 of Section 375 of the Indian Penal Code48. In Union of India v. Bandhua Mukti Morcha 49and The Supreme Court noted that even if all of the rights aren't stated explicitly, article 21 encompasses them all. One such instance is the right to privacy, which was addressed in passing in the article but not explicitly. Similarly, sexual assault violates a woman's fundamental human rights and is an infringement on her privacy. Similar to this, the Supreme Court ruled in State of Maharashtra v.
Madhukar Narayan50 that every person has the right to privacy and that women in particular need and deserve their sexual privacy. If marital rape is legalized, this will grant women a certain amount of privacy. The accused individual in question will be somewhat deterred from committing any such crime and
48 Indian Penal Code, 1860; section 375(definition of rape)
49 Bandhua Mukti Morcha vs Union of India, 1984(India) SCR
50 AIR 1991 SC 207
will refrain from doing so if marital rape is made illegal and classified as a criminal offense under the Code. Article 21 guarantees the right to a safe and healthy life. Sexual offenses such as rape give rise to a host of inhumane physical and mental health problems. The Supreme Court has repeatedly stated that these kinds of offenses can result in long-term health consequences, including mental health issues like depression and other disorders and physical health problems like various STDs and difficulties getting pregnant. In the case of Independent Thought v. Union of India51, the Supreme Court noted that it is illegal for a husband to force his minor wife to engage in sexual activity because this violates the Protection of Human Rights Act, 1993. The Domestic Violence Act of 2005 is also violated by the terms of Section 375, Exception 2.
Actually, it is stated that the Indian Penal Code's Exception 2 violates both constitutional and legal rules and injures the woman's dignity and sense of self-worth. Thus, the hypothesis aligns with the goals of my research and it can be concluded that criminalization of marital rape in India will lead to a significant increase in the reporting of marital rape cases and improve the protection of women's rights. This legal change is expected to bring about a shift in societal attitudes towards marital autonomy and gender equality, mirroring the positive outcomes observed in countries where marital rape is already criminalized. "
51 India SC delivered judgment on 11th October 2017