In 1890, Phulmoni, a girl aged 10 years, died. Though death was caused, yet the accused, a 32-year-old man, was held liable for a meagre offence of grievous hurt under Section 338 of Indian Penal Code, and sentenced to a term of 1-year rigorous imprisonment. Her death was the result of injuries caused to her by the accused during sexual intercourse he had with her. However, this brutality didn’t amount to a taboo or an offence of rape because that 32-year-old man was the husband of Phulmoni, and the age of consent in India until 1891 was 10 years. After this case (Queen-Empress v. Hurree Mohun Mythee (1891)), the British government proposed to amend the age of consent for a girl from 10 years to 12 years, and it was done amid criticism, acrimony and dissent from the public. It took another 127 years to bring the age of consent to 18 years, though only after Supreme Court considered it incumbent upon itself and intervened in Independent Thought v. Union of India (2018)
Though the age of consent has been altered, yet the modus of abuse to women in secured domestic walls of their houses have manifolded— such as cruelty, marital rape, etc. One such instance is addressed by Gujarat High court in the following case:
Nimesh Bhai Bharat Bhai Desai v. State of Gujarat (2018)
Facts of the case, as extracted from the FIR—
It is a case where wife complaints against her husband’s sexual perversion— which started as timid demands for sexual experimentation, and turned into coerced sexual activities and even forced sexual intercourse or “marital rape” The FIR narrates that both husband and wife were doctors and recently married. The wife alleged that after six months of marriage, she noticed that the behaviour of her husband had changed and he had developed sexual perversion, which she used to ignore initially, considering their reputed professional life as well as herself being lawfully wedded. Later, as it is alleged by her in FIR— “as I used to support my husband in all the works as per his desire and as I did not oppose him, he had got a free hand. His actions changed as the days passed and his bad demands also increased…. my husband used to force me to indulge in oral sex with him and if I would oppose, then he sometimes used to allure me with love and sometimes, he used to threaten me. But I used to bear all these as I was his wife” She further alleged — “On holidays, when we used to go out to gardens or public places, he used to force me to have sexual relations in public and he used to often compel me to do oral sex. Thereafter, his mental perverseness increased and at times, he used to have sexual intercourse with me forcibly against my consent without considering whether it was night or day. After some time, along with the oral sex, my husband used to take off my clothes and used to tell me to have unnatural sex with him…. Because of his such act, I was mentally and physically broken down. When I told my husband not to do unnatural sex with me, he threatened me saying you are my lawful wife and being your husband I have right over all the parts of your body and you do not have any child till today and you will not have any child in future also. I have made you my wife just to fulfil my sexual desires.” She states that her husband later started beating her whenever she showed reluctance; though she bore all these harassments to protect herself and her parents from social stigmatisation. Her father in law and mother in law were privy to these activities yet they supported their son, her husband. Later, she informs her parents and tried to nip the issue in bud but it yielded no results. Hence, she filed a complaint.
Upon these facts, the questions framed by the High Court were:
(I) Whether a husband can be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife?
The court perused the provision of Rape under Section 375 and the exception provided therein which concludes that “sexual intercourse by a man with his own wife, not being under 18 years of age, is not rape.” Therefore, a wife cannot initiate proceedings against her lawfully wedded husband for the offence of rape punishable under section 376 of the IPC.
(II) Whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC? Whether the acts complained by the wife in her first information report would fall within the ambit of “unnatural offence” within the meaning of section 377 of the IPC?
The court stated that wife can initiate proceedings against the husband for unnatural sex, under Section 377 of IPC. However, the court, in the present case, concluded that the various acts attributed to the accused-husband would not fall within the ambit of section 377 IPC. An exhaustive analysis of the issue of Section 377 was made by the court– the genesis of the provision, ingredients and development. The analysis can be perused in our previous post– Section 377– What is Unnatural?
(III) Whether there is any concept of marital rape?
The court lamented that despite recommendations of Law Commission (172nd report), Justice Verma Committee, the legislature has not incorporated marital rape in the statute. The court delved into different aspects of the subject of “Marital Rape”, which are excerpted hereunder:
Marital rape refers to coerced intercourse by a man with his wife, attained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually. It is illegal in 50 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweeden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Although Italy is deemed a male-dominated traditional society, yet it incorporated the provision of marital rape law in 1976. In Sentenza n. 12857 del 1976, the Italian Court ruled that “the spouse who compels the other spouse to carnal knowledge by violence or threats commits the crime of carnal violence”
According to Morton Hunt, an American Psychologist and Science Writer:
A typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends to sexual matters: when he wants her, she should be glad, or at least willing, if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject.
Marital rape may be broadly classified into following two categories:
- Sexual coercion by non-physical means- this form of coercion involves social coercion in which the wife is compelled to enter into sexual intercourse by reminding her of her duties as a wife. This form of coercion entails applying non-physical techniques and tactics like verbal pressure in order to get into sexual contact with a non-consenting female. The most commonly used non-physical techniques include making false promises, threatening to end the marital relationship, lies, not conforming to the victim’s protests to stop, etc. Such acts of sexual coercion by the use of non-physical stunts though considered less severe in degree as compared with physically coercive sexual acts are widespread and pose a threat to the women’s right in the society.
- Forced Sex:-this involves the use of physical force to enter into sexual intercourse with an unwilling woman. It can be further classified into the following three categories:
- Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. In most cases, the victims fall under this stated category.
- Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic and women who refuse sexual intercourse usually face such assaults.
- Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. This type has also been labelled as sadistic rape.
Marital rape is not an offence in our country, as the belief is that it could become a potent tool or weapon in the hands of an unscrupulous wife to harass her husband and become a phenomenon which may destabilise the institution of marriage. A rebuttal to this contention was provided by Apex Court in Independent Thought v. Union of India & Anr., speaking through Madan B. Lokur, J, as quoted below:
[90] The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal. nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable. A divorce may destroy a marriage but does it have the potential of destroying the ‘institution’ of marriage? A judicial separation may dent a marital relationship but does it have the potential of destroying the ‘institution’ of marriage or even the marriage? Can it be said that no divorce should be permitted or that judicial separation should be prohibited? The answer is quite obvious.”
The researches indicate that the marital rape has severe and long-lasting consequences for women, both physical and psychological. The physical effects include injuries to the private organs, miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases like HIV/AIDS. Women raped by their partners also suffer severe psychological consequence such as flashbacks, sexual dysfunction and emotional pain for years after violence.
(IV) Whether the acts of sexual assault or sexual perversion as alleged by the wife against her husband would constitute physical and mental cruelty within the meaning of section 498A of the IPC?
Section 498A comprises of a very broad domain of acts, which can be construed “cruelty”– both physical and mental. It refers to “any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, etc. or harassment to coerce her or any other person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
The court stated that “Some innocuous sado-masochistic practices may at times form an integral part of the marital relations but if they degenerate into practices which may cause physical harm or psychological trauma to one of the partners, or if they tend to verge on the pathological (sic) they would undoubtedly amount to physical and mental cruelty.” Therefore, the court concluded, the alleged perverted sexual practices complained by the wife, and which she herself did not approve, would definitely amount to mental as well as physical cruelty.
(V) Whether a person can be held guilty of outraging the modesty of his own wife?
Section 354 of Indian penal code refers to “any woman” This suggests that a person may be held guilty of outraging the modesty of any woman, including the one who is his wife. Hence, the court stated, if between the two spouses one spouse wants healthy and normal sexual relations and the other is desirous of having perverted sexual relations, as alleged in the case herein, then normal sexual relations between the spouses which form the basis of a happy marital life would be floundered.
The court concluded that if the husband assaults or uses criminal force against her wife the act will amount to an outrage under Section 354, irrespective of the fact whether it was done with or without her consent or in the absence of a third party. The question of husband’s knowledge, intention or her developed sense under the modern set up would become irrelevant and a deliberate outrageous conduct of the husband is indefensible. It would thus seem to follow that a husband may be held guilty of an offence even under section 354 if the victim is a woman who is his wife.
Comment
Indian society acknowledges sacrosanct nature of marriage. The union of a man and his wife is consecrate and protected, for it constitutes basic building unit of social order, and adds new individuals and virtues to the society. In religious laws, the existence of ardhangini is considered incomplete without her pati-parmeshwar. However, the advent of constitutionalism bough new dimensions to existing socio-religious scenario. The woman is no longer her man’s chattel and her individual liberty is considered paramount in this egalitarian system. Therefore, any encroachment on her liberty, autonomy and conscience, even by her spouse, is susceptible to sanction as per procedure established by law. Marital Rape is an encroachment upon the woman’s physical autonomy, her physical integrity, modesty and chastity– which constitutes a core inviolable zone. The zone is an exhibit of her right to privacy, which is constitutionally preserved, irrespective of her marital status.
The current state of affairs in the country portray a dilapidated scenario of women’s autonomy. A woman can protect her right to life and personal liberty, generally; the exception exists, in case she is married. If a husband violates the physical or mental autonomy of his wife, he will be liable for assault. However, if that man violates her sexual autonomy, then also assault will be indicted, because our legal system has sustained the archaic social-presumption, which construes implied consent of a wife to sexual intercourse. Therefore, such consent is not given; rather it is inherited as an infirmity with the wedding vows. This presumption has reduced the crime of “marital rape” to a mere oxymoron, which is constantly neglected by the legislative.
U.N. Committee on the Elimination of Discrimination against Women (CEDAW Committee), in 2007, recommended widening of the definition of rape in Penal Codes to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape; 172nd Report of Law Commission recommended that ‘Rape’ should be replaced by the term ‘sexual assault’ and Rape laws should be made gender neutral, as custodial rape of young boys has been neglected by law. However, the legislature has always turned a deaf ear towards such legal reforms that can cause a rift in social structures. The amendments in these domains were made only after major tragedies, which caused ripples in social structure and beckoned the State to device a legislative embargo— from the 1891 Amendment, made after Phulomi’s case, to 2018 Amendment, made after Kathua Case.
The Justice Verma Committee noted: “Changes in the law, therefore, need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship.” Therefore, it is essential to raise awareness among women on these basic human rights— which will lead to an informed society, where dissent would be consensual and assent would not be presumed-impliedly.
“A woman with a voice is by definition a strong woman.
But the search to find that voice can be remarkably difficult…”
—Melinda Gates
Advocate Rohit Saraswat 