Marital Rape versus Conjugal Right

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Author : jewelchanda
Published on : December 13, 2010

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Jewel Chanda Advocate State Consumer Dispute Redressal Commission, W.B.

Marital Rape versus Conjugal Right

The spousal rape or marital rape is the most common version of rape which never attracted much attention. There is a serious controversy over the matter whether it is rape at all in the strict sense of the term. An act of having sex with one’s own wife without her consent and will does not fall under the definition of rape in most of the countries (exception applies). However the position is different in some western countries where it is a crime. In a society like ours where women are still treated as economical burdens, it is presumed that a woman surrenders her consent upon entering a marriage forever. The issue in the one hand involves the dignity of a woman. On the other hand closely related to conjugal right to have sex and cohabitation. It can not be denied that such an act involves both physical and mental pain and it is not less traumatic than other form of rape. As most of it happens behind the door it does not affect the social status of the victim. Whether husbands have right to have sex with their wife without their consent is a complicated but less serious issue. Most difficult question is that whether criminalisation of marital rape is necessary? This question is closely related with the following issues;

# Extent of conjugal right to have sex
# Denial to have sex and its effect on marital relation.
# Mental pain in having sex without consent or against will.
# The relation between spousal rape and cruelty.
# Effect upon the dignity of a woman.
# Possible misuse of criminalisation.

The institution of marriage has gone through a very long process of evolution. Primarily its purpose was to bind the women to men and guarantee that a man’s children were truly his biological heirs. Through marriage woman become a man’s property. Some anthropologist says that the main purpose was to establish sexual right over the woman. Long after this religion came into play and gradually religion taken full control over the institution of marriage. Love and affection are the last and late entrants.

Marriage always implies the right of sexual intercourse: society holds such intercourse allowable and generally speaking, even regards it as the duty of both the parties to gratify the other partner’s desire. However marriage is something more than a regulated sexual relation.

In the primitive time, the habit for a man and woman (or several woman) to live together, to have sexual relations with one another and to rear their offspring in common, the man being the protector and supporter of his family and the woman being his helpmate and the nurse of their children.[1]

The individual marriage is the result of inherent human urge of a man to have exclusive sexual possession over the woman. Marriage in one form of other has a close relation with sexuality. It is true that modern marriage is no more regulated sexual relationship but still it is a basic characteristic of marriage.

Denial to have sex (without any reason) by one partner gives the other a right to dissolve the marriage. On the other hand impotency is also a ground for divorce. Non-consummation in marriage is also a very good and sufficient ground for annulment of the union. Politeness and prudishness in civil society do not permit the crude declaration of each partner's right to engage in sex with the other in marriage vows. However, this should not be mistakenly construed that sex is not required as part and parcel of marriage. This conjugal right to sex covers both partners in the union and the wife is as entitled to apply for an annulment for the husband's refusal to consummate the marriage as the other way around.

Hence the existence of conjugal right to have sex is attached to all recognized form of marriage. This right is not disputed. The controversy arises in deciding the extent of this right. Conjugal right to have sex is not exclusive. Rather it is dependent upon mutual consent. Again as there is right there is legal remedy too to restore the conjugal right, the use of force was never permitted for its exercise.

Rape in marriage is most common form of sexual assault. However marital rape exemptions still influence sexual assault legislations. Actually the origin of marital rape exemption was the social understanding that woman were the property of men, first of their fathers and then husbands. This was reflected in the first law of marriage decree by Romulus of Rome in the 8th century B.C., a law that “obliged married women, as having no other refuge, to conform themselves entirely to the temper of their husbands and the husband to rule their wives as necessary and inseparable possessions”.[2] Hence with marriage women become property of their husbands.

What rape law is today was not the same yesterday. Originally the rape laws were enacted as a property laws, to protect a mans property (a daughter or wife) from other men, not as laws to protect the right of a woman or their dignity. At the beginning the penalty for rape was intended to punish a man for defiling another mans property. The husband could get compensation for rape of their wife but he himself could not be charged of rape.

The same proposition was strongly supported by Sir Matthew Hale, Chief Justice in 17th century in England; “The husband can not be guilty of a rape committed by himself upon his lawful wife, for their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto the husband which she can not retract.[3]

So the marriage was considered as irrevocable consent to sex. In many society once a woman is married, her identity merge with her husband. The English jurisprudence also considered that on marriage the wife loose her separate identity all her property and person vests in the husband (however the position changed in modern days). Blackstone wrote “by marriage the husband and wife are one person in law; that is, the very being or legal existence of the women is suspended in marriage.” Therefore if wife having no separate identity, as her person merged with that of her husbands, accusing the husband of rape would have been impossible, because where the husband rapes his wife, he in effect rapes himself, which is not possible. No one can rape himself.

Today the position has changed. Many countries have criminalized spousal rape or marital rape. Today neither women are treated as men’s property not her identity is lost on marriage. Women born with modesty as well as dignity. It is not tenable argument that married women have no right to dignity.

Do we still treat women as property? Or their body as commodity?

Even the strongest supporter of spousal rape exception, today, will not answer in positive.

In simple words marital rape happens when the husband want to have sex and his wife refuses, and then the husband have it by force. The importance should be given on the force element. The extent, intensity and nature of force decide the nature and gravity the assault. We believe that the husbands have right to have sex on demand as and when he wants. Such thinking is supported by law recognising, right to have sex as a conjugal right. Husbands use force whenever they are refused sexual access mainly due to the following reasons,

# The ideology which says, it’s my wife, I can do anything
# On marriage wife supposed to have given irrevocable consent towards sex
# Sometime violent sex is used as a form of punishment and
# As a form of control

The present exception of spousal or marital rape from the definition of rape perpetuates the problem, because it allows the husbands to believe that their behavior is acceptable legally as well as socially.

Vimala Veeraraghavan in her “Rape and Victim of Rape” wrote, “in Indian society chastity of women is of a paramount importance and virginity is a pre requisite in a girl to become a bribe; and after marriage, a girl becomes the exclusive property of her husband. Since the major violence in rape is the ruining of chastity, the female chastity is guarded carefully and strictly and loss of chastity incurs severe repercussion both for the raped woman and her family.”[4]
I strongly disagree with the idea of correlating the chastity with rape. Rape is an offence against the woman i.e. victim. The idea of chastity and loss of chastity is too contrary to dignity of a woman. The word Chastity is attached to women only, for a woman to be chaste is nothing but to be faithful to a man (husband). Society requires only women to be chaste, men are excluded. In modern Indian society, the idea, a girl to become a bribe must be virgin is too impractical. Though I admit that every man wish to marry a virgin girl, even if he himself have experience of premarital sex.

The term RAPE is derived from the Latin word “RAPERE” meaning to steal, seize or carry away. That is hiding or attacking women by men for their sexual desire.

Indian Penal Code under Section 375 defines rape as follows;
“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -

First: - Against her will.

Secondly: -without her consent.

Thirdly: - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly: -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: - With or without her consent, when she is under sixteen years of age.

Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: -Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”[5]

The traditional and legal definition of rape has changed a lot in recent days. According to common law definition rape was regarded as an act committed by a man “who engages in intercourse with a woman, not his wife, by force or threat of force, against her will, and without her consent”.

The federal Bureau of Investigation (FBI) has defined it as “the carnal knowledge of female forcibly and against her will”.

The Model Penal Code of America defined it as “sexual intercourse where the man compels [a woman] to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone”

One of the most important aspect is proof of resistance, to establish non consent. In India also great emphasis is given upon proof of resistance. However the consent and submission has been clearly distinguished by the Honbl. Supreme Court of India. A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbids or withhold what is being consented to, it always is voluntary and conscious acceptance of what is proposed to be dome by another and concurred in by the former. Consent of the woman in order to relieve the accused of the charge of rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure. Submission under pressure or influence of fear or terror is not consent and will not exonerate a person from liability.

In many cases the Honbl. High Courts of different States held that consent given on a false promise to marry is no consent at all, but a mere submission, and in such cases the accused may be held guilty of rape. The law has been interpreted in various ways by Indian courts – based on the circumstances and evidence provided by the complainant.

In marital rape the degree of evidence required to prove non-consent and whether the resistance is essential element to prove the charge, is another complex problem for criminalisation of marital rape. Such an incident as ordinarily happens behind the door, it is unlikely to have any other evidence other than the sole testimony of the victim. On the other hand a married woman is unlikely to resist his husband to have sex to such extent so that it may be evident from physical injury, except in some exceptional cases.

A rape victim undergoes both physical and emotional trauma. All most all of tem become depressed and feel extremely insecure. They feel that they have lost all confidence and dignity they possessed earlier. Most of the victims of rape are likely to suffer from PTSD - Posttraumatic Stress Disorder (an extremely debilitating disorder occurring after a highly disturbing traumatic event). Other mental damages are, Major Depression, Suicide Syndrome etc. Post-traumatic stress disorder also known as Rape trauma syndrome. It is a psychosomatic response to rape which engages feelings of shame and shock. Because of the difficulty involved in recovering from the emotional impact brought upon the victim by the act of rape, many women are prone to this type of anxiety disorder. Rape trauma syndrome can be distinguished by a number of characteristics. The victim may experience recurring nightmares in the form of flashbacks of the rape, depression, nervousness, social withdrawal, and emotional numbness.

Almost one-third (31%) of all rape victims developed PTSD sometime during their lifetime; and more than one in ten rape victims (11%) still has PTSD today.

Rape victims were 6.2 times more likely to develop PTSD than women who had never been victims of crime (31% vs 5%). Rape victims were 5.5 times more likely to have current PTSD than those who had never been victims of crime (11% Vs 2%). [6]

Victims of marital rape undergoes same trauma as in case of rape by stranger. Their bear more psychological pain as they are unable to complain to any body. Only thing they can do is to keep mum and surrender herself and be subject of continuous trauma. In case of rape by stranger the victim get both support and sympathy from the society while in marital rape the victim taste the cruel recognition of society which compels them to fulfill the lust of their husband as and when he wants.

Sometime women themselves find it difficult to believe that a husband can rape his wife. Women’s bodies are outraged, regardless of their educational qualifications, class or status. Women themselves don’t make a noise about it or talk about their experiences. Most women don’t even think of rape by their husbands as marital rape. As of now, Indian law contains no provisions for helping abused wives and penalising guilty husbands, except provisions of PWDV Act 2005 which provides slight remedy but the provision is not clear about marital rape. Recently, the National Commission for Women released a report, "Rape: a legal study," which stated that marital rape should be recognised as a criminal offence. All over the world, steps are being taken to ensure that marital rape is regarded as an offence. Even the neighbouring Nepal has long back outlawed it. The Supreme Court of Nepal has declared that husbands who force their wives to have sex can now be charged with rape. The landmark ruling issued last May was a result of a July 2001 petition filed by the Forum for Women, Law and Development, a women's rights organisation in Nepal. The 15-page decision declared that “marital sex without a wife's consent constitutes rape. It also said that religious texts do not condone men who rape their wives”. The court added that “Hinduism stresses conjugal harmony based on mutual understanding between husband and wife”. The court ordered Parliament to amend the current rape law to reflect its latest ruling. In India, however, we haven’t even begun to admit that marital rape is a reality, let alone an unpleasant one.

The question is without criminalization of marital rape, how can a man be accused of rape if he is only availing of his conjugal rights?

Recognition of conjugal right to have sex with spouse, do not constitute a license for husbands to rape their wives.

“ubi jus ibi remedium” – where there is a right there is a remedy. Without remedy right has no value. Therefore if we recognize such conjugal right there must be some remedy. Such remedy is dissolution of marriage under the law. If either party denies to have sex without any reason the other party may file a suit for divorce or seek legal recourse. Law does not recognise any right of husband which empowers them to have sex by force. If your legal right is violated then you have every right to take legal recourse but you have no right to take law in your own hand. Law permits us to use reasonable force only to protect our property and person but in no other cases.

The only way to eliminate marital rape is to change the attitude towards women. It is a result of male domination. Physical weakness is not the main reason, it is economic dependency. Till date in our society females are treated as economical burdens, first of their fathers and then of their husbands and lastly of their children. As long as husband can rape wives with impunity from the law women do not own their bodies.

Rape is rape be it by stranger or by our nearest and dearest one. The marital rape is nothing but a special species of rape itself which is no less heinous crime than rape by stranger. The effects upon the victims are almost same. Then why not the punishment be same. Criminalisation of marital rape is essential today. Today we are aiming towards a society where there will be equal distribution of power, mutual respect and appreciation for the contribution that women make to the society. In a society where women are more educated, economically independent incident of rape will be lesser. Misuse of criminalisation is no defense at all. There is no law in our country which is not being misused. If it is of no use then it can not be misused too and if use paramount then it will oughtweight the misuse. India being the largest democracy of the world can not remain silent on the issue. The steps taken by rest of the world strongly advocates for the criminalisation of marital or spousal rape. It is not a regional issue neither it is local, it involves the dignity of women from every corner of the world and we can not escape our duty to uphold it.

Some Important Articles on Rape laws in India
# Sexual Harassment and Rape Laws in India
# Redefining the Rape Laws in India
# Rape Laws In India-Appropriate or not?
# A Woman Can't Rape Woman
# Rape law in India and World
# Capital Punishment for Rape. What justice are we taking about?
# Change in definition of Rape in India
# Marital Rape versus Conjugal Right
# "Rape”-Texual or Psychological: The need to change Section 375 of the IPC, 1860
# Dying Declaration by Rape Victims
# Need on capital punishment in the context of rape
# Women and Violence
# Women and Violence part-11
# Human Rights Violations-'An Anathema To Society'
# Subjugation of women rights lead to violation of human rights
# Crime Against Women & its Impact on Them
# Accomplice Evidence In Sexual Offences
# Eve teasing In India And Tortious Liabilities
[1]“ The History of Human Marriage” by Edward Westermark, Macmillan & Co. Ltd. London
[2] Quoted in “Wife Rape- understanding the response of survivors and service providers” by Raquel Kennedy Bergen, SAGE Publication.
[3] “The History of the Pleas of the Crown” by Mathew Hale, 1975
[4] “Rape and Victim of Rape – a socio-psychological analysis” Northern Book Centre, 1987
[5] Section 375, Indian Penal Code 1860
[6] “The Mental Health Impact of Rape”, by Dean G. Kilpatrick, Ph.D. National Violence Against Women Prevention Research Center, Medical University of South Carolina, secondary data collected from


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