Marriage as a licence to rape

Live-in relationships may be viewed as temporary and immoral, but funnily enough, our legal system and policing methods give women in live-in
relationships, and not marriage, better rights.Po-TTI

2014-11-14
Compiled by Ruwan Laknath Jayakody and R.A.
Sooriyakumar
Agnus Dei. The Lamb of God. The lamb in this case signifying innocence and corruption
amidst the silence of God. God in this case, notwithstanding the Christian connotations,
embodying the godlike reverence that the values of justice in its myriad forms of ethics,
rationality, law, equality and fairness pertaining to fundamental rights and civil liberties,
humanity is condemned to uphold. This page is the voice of the people. With the country set
ablaze with the public hell of the Constitutional legality of a third term for the incumbent
Executive, the inaugural edition of Agnus Dei chooses to look at the private purgatory of
marital rape, making also the demand that marital rape be criminalized and recognized as an
offense. The business of marriage is marketed as an earthly paradise akin to heaven. Yet trouble
is never too far away. Entering through the Venetian blinds, the boudoirs of the citizens of the
land confined within the gilded cage of wedlock, one glimpses in these theaters of cruelty, the
kinky politics of sexual propriety and the dark fantasia of patriarchy at play. It is a Grand
Guignol saga of bottles shoved up vaginas, extreme gonzo pornography, Viagra, young lust and
carnal impulses, Lady Godiva, the Madonna-whore complex, the Stockholm syndrome and
morbid jealousy. So as taskmaster Friedrich Nietzsche would have it, bring out the whips as
there are 50 shades of grey.
45 Marital Rapes Per Day
Leading women's rights organization, Women in Need (WIN) through Attorney-at-Law at
WIN, Dilrukshi De Alwis confirmed to Ceylon Today that out of the number of daily walk-ins
(180 victims) to their nine Crisis Centres islandwide (20 victims per Crisis Centre), 45 victims

(5 victims per each Crisis Centre) were due to marital rape, which incidentally according to
Secretary of the Ministry of Child Development and Women's Affairs, Eric W.F.
Illayapparachchi was a "common matter," and about which as Secretary of the Ministry of
Justice, Kamalini De Silva put it "the Ministry really was not looking at as there was no serious
lobby for it."
Marital rape also known as spousal rape and rape in marriage is non-consensual sex (rape) in
which the perpetrator is the victim's spouse.
"Clearly sexual intercourse can only be considered as consensual only if consent is asked,
obtained and given. In law, there is nothing called passive consent. Merely because a woman
entered the bonds of matrimony it does not take away her rights and the need to obtain consent
during intercourse. The consent or complete voluntariness of body and mind of both parties is
necessary. The very idea of intercourse, a deeply intimate act done without the consent of both
partners is an act of violence that is a violation of the rights of choice and self-determination
guaranteed by the Charter, the Universal Declaration of Human Rights. Permission should be
asked and articulated verbally. It cannot be inferred and assumed. Canadian Supreme Court
Justice Claire L'Heureux-Dub's position in R. v. Ewanchuk is a case in point. At the point of
penetrative sex was consent given? Consent during pre-coitus or foreplay does not count,"
Former Acting Chief Justice Shiranee Tilakawardane said.
She added that violence was the manifestation of discrimination and inequality where one party
abuses its power and dominates physically, emotionally, economically and mentally. Such acts
are a violation of the individual's own guaranteed rights and freedoms.
"The law in Sri Lanka evolved from the Roman Dutch Law which considered women as mere
chattels, possessions and property with no rights to freedom and relegated to mere vessels, in
particular of women in bonds of marriage as objects to be used and discarded. Today, the scope
and ambit of rape stating that intercourse without consent or through coercion (not consensual)
is one punishable by law," she noted.
WIN elaborates that while marital rape as a population demographic is seen across all strata's
including the lower middle class it is mostly prevalent among those who get married just out of
their teens of the ages between 18 and 20 and below 25. Such marriages experience turbulence
by the time the individuals are 29 or 30 years old as the relationships are more physical than
intellectual, De Alwis explained.
"At this stage extra-marital relationships also occur. As a result of the forced, unwelcome
sexual torture and molestations which violates their personal bodily integrity, women as a result
may become nymphomaniacs, develop depression, suffer from psychotic breaks and show
symptoms of the battered women syndrome," she remarked.
Women interviewed in a survey on rape (Ask Any Woman: A London Inquiry into Rape and
Sexual Assault Report of the Women's Safety Survey conducted by Women Against Rape 1985,
Ruth E. Hall), 'made it clear that rape by the husband is just as painful and traumatic as rape by
strangers, in some ways worse...'

De Alwis opined that men think it is their right and therefore, disregard consent, a point on
which 24-year-old Dushmantha (name changed to protect identity) who works in Colombo as
an office worker and is incidentally married concurred with. "Permission has already been
obtained when the person signed their name on the dotted line of the marriage certificate," he
said.
WIN cites access to hardcore pornography, sexual stimulants and sex enhancing drugs, sexual
torture, morbid jealousy and men getting their wives to dress up scantily to titillate, as reasons
for marital rape, which is also one of the many forms in which domestic violence manifests
itself.
Marital rape centres round age old traditions and customs of marriage and restricted
understanding of female sexuality.
The Law on Marital Rape
To quote the House of Lords in R v R [1992] 1 A.C. 599, a land mark decision recognizing
marital rape as a criminal offence in England and Wales, ''the status of married women has
changed. Marriage is in modern times regarded as a partnership of equals and no longer one in
which the wife must be the subservient chattel of the husband. One proposition involves that by
marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all
circumstances and irrespective of the state of her health or how she happens to be feeling at the
time. In modern times any reasonable person must regard that conception as quite
unacceptable."
Still however many countries such as Sri Lanka and neighbouring India have not criminalized
marital rape although Asian countries such as Nepal, Malaysia and Thailand have done so.
Section 363 of the Penal Code states that a man is said to commit rape where without the
consent of the woman even where such a woman is his wife and she is judicially separated
from the man. Sri Lankan jurisdiction does not recognize the crime of marital rape, a condition
reflective of a primitive law making process in terms of the Legislature (the Parliament) and the
Executive in issues pertaining to the woman.
The Prevention of Domestic Violence Act No.34 of 2005 (PDVA) allows victims of domestic
violence to request a protective order through the police from a Magistrate's Court which would
limit contact between the perpetrator (arrested initially by the police) and the victim. The
PDVA defines 'domestic violence' as including (among others) all offences contained in
Chapter XVI of the Penal Code (Schedule 1 PDVA).
In what amounts to completing the circle of confusion (and utter disregard for the victim of
marital rape) one is led again to the fact (or rather to the Penal Code Section 363) that rape, in
the context of the married woman, is recognized only if it occurs subsequent to judicial
separation ordered by Court, of the husband and wife.
Thus in Sri Lanka, the term 'domestic violence' at least legally, does not acknowledge that a
woman can be raped within the confines of marriage. {'Rape' being when a man (husband) has
sexual intercourse with a woman (wife) without her consent, or when her consent has been

obtained by use of force or intimidation or by threat of detention or by putting her in fear of

death or hurt; with her consent when her consent has been obtained at a time when she was of
unsound mind or was in a state of intoxication induced by alcohol or drugs administered by the
man - as per the Penal Code Section 363}. One should also be aware that 'rape' need not be
accompanied by physical violence to prove it is a 'rape' although such violence is of importance
in terms of evidentiary value.
Accordingly, what the PDVA purports to do is obscure the 'rape' of a married woman by her
husband and bring such an act under the general head of domestic violence, which in turn does
not accord the victim any remedy unless a physical assault (as opposed to mere 'rape' devoid of
physical injuries) can be proved.
In essence as De Silva reminds us, what there is, is a limited qualified marital rape.
The Govt. passing the ball
"This is a policy issue. In 1995 when the government under a previous regime originally
wanted to bring about new provisions and reforms with regard to criminalizing marital rape in
Parliament it was not approved as the move was not favoured by the MPs. They were not
happy," De Silva explained.
She however added that at present the Ministry of Justice was looking into many and various
other issues and would possibly take a look again at marital rape when the time was
appropriate.
It is the Ministry of Child Development and Women's Affairs and the Law Commission of Sri
Lanka who should and might be looking at policy and law with regard to this specific matter,
she emphasized.
Whilst stating that it was the Ministry of Justice that was responsible for formulating law and
policy and legal amendments pertaining to criminalizing marital rape, Illayapparachchi
reiterated that it was imperative that such laws and Acts should be passed without disturbing
the family unit.
"On many forums we discuss the matter frequently. For 2015, we have received additional
funds to tackle gender based violence, especially domestic violence. We have a special force,
which is the National Committee on Women which looks at policy and through the Women's
Bureau we conduct creating awareness campaigns for both men and women regarding marital
rape," he proffered.
Handling written submissions made in the Northern Province (Jaffna, Mullaitivu and Vavuniya)
as part of the islandwide Opposition Leader (United National Party Leader, Ranil
Wickremesinghe)'s Commission on the Prevention of Violence against Women and Girls which
concluded in 2013 (report due in 2014), Chief Executive Officer of Viluthu, Shanthi A.
Satchithanandam added that although incidents of rape in general and at the hands of the armed
forces were reported, marital rape was not recognized or viewed as rape.
Satchithanandam said that there would be heavy opposition if one started to raise awareness
about the issue.
"It is so sensitive that one would be accused of interfering in family relationships (husband and

wife) and attempting to breakup families. Men think that women are not amenable to the
desires of man and that women must give in and satisfy them properly. The man is excused for
forcing as he allegedly has the right to demand. The culture always sees this as the fault of the
women and therefore that women had what was coming to them," she remarked.
Anthropologist attached to the Family Planning Association, Madusha Dissanayake observed
that to get at the complexities of marital rape, it is first required that one accepts rape as a crime
and see past its myths like the one where only 'bad' women get raped.
Take language for an instance, where we say that a girl is given in marriage pretty much as a
dowry but we do not say that a boy is given in marriage. Why? She queried.
"These depend on the societal and cultural perspectives we abide by as to what constitutes a
marriage. Why do people get together and marry? Women give in thinking it is for the best.
Sexuality within marriage including gratification and satisfaction should be discussed divorced
from the concept of reproduction. These are relationships and partnerships with someone one
knows based on respect and understanding. The need and necessity of comprehensive
knowledge about sexual and reproductive health though essential is at a minimum,"
Dissanayake observed.
There is a huge communication gap within many of the relationships, she added.
"The husband's family and the woman's own family do not aid her in such situations and tends
to pretend as if such incidents never in fact occurred. They follow the Buddhist teaching of not
taking internal conflicts outside while the surrounding community which could and should
come to the aid of the woman practices it's very opposite. Children are stigmatized. Such
women do not have a fall back strategy or access to information regarding what is happening to
them. Some come to accept this as their karma, fate and lot. The media through tele-dramas
also portray a dreamy fairytale version of marriage as one where princess and prince charming
live happily ever after. There is peer pressure about sex and wildly unrealistic expectations of
feminine beauty as epitomized by Bollywood starlets being seen as the ideal," De Alwis
intoned.
Having personal and professional economic power and engaging in skills developing
programmes is necessary as women give up work when they marry, she emphasized, adding
that one must not lose one's identity.
Sometimes when couples experience marital rape they think having a child would be the
remedy for the situation, De Alwis explained.
"In such cases the husband no longer is a friend but a total control freak, but the woman falls
for this thinking that he is asking her to behave this way for her own good and benefit as she is
still head over heels about him," she added.
Apart from obtaining protection orders and providing temporary shelter to victims who cannot
go home, WIN offers psychological counseling, provides legal advice to women on what
options they have.
The Police - clueless

The police always taking the stance of mediating family disputes by equating them to mere
domestic squabbles and this is a hindrance, De Alwis remonstrated, also adding that judges in
lower Courts too more often than not opt for the option of settling the matter.
Acting Police Media Spokesman, Attorney-at-Law and ASP Ruwan Gunasekera agreed that the
police would initially attempt to mediate on matters of family disputes when a spouse makes a
complaint and in the case where both parties involved turn up at the police station and agree to
settle the matter, in such cases the police will not pursue the matter in Courts.
Police Children's and Women's desks in 335 divisional secretariats have five field officers each
including women development officers and child rights officers and the operation is
coordinated in a holistic manner with the Ministry of Child Development and Women's Affairs,
he added.
"If its battery we treat it as a crime," ASP Gunasekera noted.
Justice Tilakawardane said the police are still not educated or aware enough.
"Because Court visits are mandatory when a protection order is obtained the husband stops
raping her. As long as marital rape is not reported it continues. The domestic violence
protection order takes about one to two weeks to come through and is not effective as an
immediate measure which is presently in place to address the problem. Couples get easily
distracted with one night stands in certain cases and therefore do not work on the marriage
thereby also jeopardizing children. Bottles containing alcohol and other equipment too are
inserted into the female genitalia and there was a case at the Castle Street Hospital for Women
(Teaching) where a doctor lambasted an expectant mother for having sex with many men when
in reality her insides had been torn apart due to forceful insertions," De Alwis further narrated.
It is reported that many such sexual problems are also seen in the Muslim community too.
"When subjected to coercion or intimidation, women become passive due to fear and shame. In
such situations, women become completely inarticulate in how they react. It has much to do
with the upbringing. Parents bring up girls a certain way to behave modestly. Their very
upbringing goes against them. The victim not the perpetrator is traumatized, stigmatized,
marginalized and ostracized. These are attitudes of power. It is not just a family domestic
problem. Wrong ideals, values and attitudes contribute to this. Women are neither inferior nor
superior to men. There is the obnoxious idea that sex is the entitlement of male privilege, one
which has been fashioned through archaic notions of culture and tradition and ideologies based
on patriarchy. It is not to be accepted or tolerated," Justice Tilakawardane reiterated.
(Contributions by Menaka
Indrakumar)
Email comments to ruwanjayakodypm@yahoo.com

Marital Rape and the Indian legal scenario

PRIYANKA RATH is a 5th year law student at Symbiosis Law School,
Pune.

Priyanka Rath seeks to bring out the laws regarding

rape in India while concentrating on the position of marital rape and its recognition as
an offence by the system and the attitude of the society and the judiciary towards
marital rape.
Marital Raperefers to unwanted intercourse by a man with his wife obtained by force,
threat of force, or physical violence, or when she is unable to give consent. Marital rape
could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a
non-consensual act of violent perversion by a husband against the wife where she is
physically and sexually abused.
Approximations have quoted that every 6 hours; a young married woman is burnt or
beaten to death, or driven to suicide from emotional abuse by her husband. The UN
Population Fund states that more than 2/3rds of married women in India, aged
between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases
were recorded of women murdered by their husbands or their husbands families. 56%
of Indian women believed occasional wife-beating to be justified.
Historically, Raptus, the generic term of rape was to imply violent theft, applied to
both property and person. It was synonymous with abduction and a womans
abduction or sexual molestation, was merely the theft of a woman against the consent
of her guardian or those with legal power over her. The harm, ironically, was treated as
a wrong against her father or husband, women being wholly owned subsidiaries.
The marital rape exemption can be traced to statements by Sir Mathew
Hale, Chief Justice in England, during the 1600s. He wrote, The husband
cannot be guilty of a rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract, the wife hath given herself
in kind unto the husband, whom she cannot retract.

Not surprisingly, thus, married women were never the subject of rape laws. Laws
bestowed an absolute immunity on the husband in respect of his wife, solely on the
basis of the marital relation. The revolution started with women activists in America
raising their voices in the 1970s for elimination of marital rape exemption clause and
extension of guarantee of equal protection to women.
In the present day, studies indicate that between 10 and 14% of married women are
raped by their husbands: the incidents of marital rape soars to 1/3rd to among
clinical samples of battered women.
Sexual assault by ones spouse accounts for approximately 25% of rapes committed.
Women who became prime targets for marital rape are those who attempt to flee.
Criminal charges of sexual assault may be triggered by other acts, which may include
genital contact with the mouth or anus or the insertion of objects into the vagina or the
anus, all without the consent of the victim. It is a conscious process of intimidation and
assertion of the superiority of men over women.
Advancing well into the timeline, marital rape is not an offence in India. Despite
amendments, law commissions and new legislations, one of the most humiliating and
debilitating acts is not an offence in India. A look at the options a woman has to
protect herself in a marriage, tells us that the legislations have been either non-existent
or obscure and everything has just depended on the interpretation by Courts.
Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very
archaic sentiments, mentioned as its exception clause- Sexual intercourse by man
with his own wife, the wife not being under 15 years of age, is not rape. Section 376 of
IPC provides punishment for rape. According to the section, the rapist should be
punished with imprisonment of either description for a term which shall not be less
than 7 years but which may extend to life or for a term extending up to 10 years and
shall also be liable to fine unless the woman raped is his own wife, and is not under 12
years of age, in which case, he shall be punished with imprisonment of either
description for a term which may extend to 2 years with fine or with both.
This section in dealing with sexual assault, in a very narrow purview lays down that, an
offence of rape within marital bonds stands only if the wife be less than 12 years of age,
if she be between 12 to 16 years, an offence is committed, however, less serious,
attracting milder punishment. Once, the age crosses 16, there is no legal protection
accorded to the wife, in direct contravention of human rights regulations.
How can the same law provide for the legal age of consent for marriage to be 18 while
protecting form sexual abuse, only those up to the age of 16? Beyond the age of 16,
there is no remedy the woman has.

The wifes role has traditionally been understood as submissive, docile and that of a
homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast
the discussion openly of it, hence, the awareness remains dismal. Economic
independence, a dream for many Indian women still is an undeniably important factor
for being heard and respected. With the women being fed the bitter medicine of being
good wives, to quietly serve and not wash dirty linen in public, even counseling
remains inaccessible.
Legislators use results of research studies as an excuse against making marital rape an
offence, which indicates that many survivors of marital rape, report flash back, sexual
dysfunction, emotional pain, even years out of the violence and worse, they sometimes
continue living with the abuser. For these reasons, even the latest report of the Law
Commission has preferred to adhere to its earlier opinion of non-recognition of rape
within the bonds of marriage as such a provision may amount top excessive
interference wit the marital relationship.
A marriage is a bond of trust and that of affection. A husband exercising sexual
superiority, by getting it on demand and through any means possible, is not part of the
institution. Surprisingly, this is not, as yet, in any law book in India.
The very definition of rape (section 375 of IPC) demands change. The narrow
definition has been criticized by Indian and international womens and children
organizations, who insist that including oral sex, sodomy and penetration by foreign
objects within the meaning of rape would not have been inconsistent with nay
constitutional provisions, natural justice or equity. Even international law now says
that rape may be accepted a s the sexual penetration, not just penal penetration, but
also threatening, forceful, coercive use of force against the victim, or the penetration by
any object, however slight. Article 2 of the Declaration of the Elimination of Violence
against Women includes marital rape explicitly in the definition of violence against
women. Emphasis on these provisions is not meant to tantalize, but to give the victim
and not the criminal, the benefit of doubt.
The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during
the 1600s. He wrote, The husband cannot be guilty of a rape committed by himself upon his lawful wife, for
by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband,
whom

she

cannot

retract.

The importance of consent for every individual decision cannot be over emphasized. A
woman can protect her right to life and liberty, but not her body, within her marriage,
which is just ironical. Women so far have had recourse only to section 498-A of the

IPC, dealing with cruelty, to protect themselves against perverse sexual conduct by
the husband. But, where is the standard of measure or interpretation for the courts, of
perversion or unnatural, the definitions within intimate spousal relations? Is
excessive demand for sex perverse? Isnt consent a sine qua non? Is marriage a license
to rape? There is no answer, because the judiciary and the legislature have been silent.
The 172nd Law Commission report had made the following recommendations for
substantial change in the law with regard to rape.
1. Rape should be replaced by the term sexual assault.
2. Sexual intercourse as contained in section 375 of IPC should include all forms of
penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and
object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], sexual
assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has
been neglected by law.
5. A new offence, namely section 376E with the title unlawful sexual conduct
should be created.
6. Section 509 of the IPC was also sought to be amended, providing higher
punishment where the offence set out in the said section is committed with
sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced
sexual intercourse by a husband with his wife should be treated equally as an
offence just as any physical violence by a husband against the wife is treated as
an offence. On the same reasoning, section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to
the sexual act and it is denied, the court shall presume it to be so.
The much awaited Domestic Violence Act, 2005 (DVA) has also been a
disappointment. It has provided civil remedies to what the provision of cruelty already
gave criminal remedies, while keeping the status of the matter of marital rape in
continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in
the definition of domestic violence, has included any act causing harm, injury,
anything endangering health, life, etc., mental, physical, or sexual.
It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is
life threatening or grievously hurtful. It is not about the freedom of decision of a
womans wants. It is about the fundamental design of the marital institution that
despite being married, she retains and individual status, where she doesnt need to

concede to every physical overture even though it is only be her husband. Honour and
dignity remains with an individual, irrespective of marital status.
Section 122 of the Indian Evidence Act prevents communication during marriage from
being disclosed in court except when one married partner is being persecuted for n
offence against the other. Since, marital rape is not an offence, the evidence is
inadmissible, although relevant, unless it is a prosecution for battery, or some related
physical or mental abuse under the provision of cruelty. Setting out to prove the
offence of marital rape in court, combining the provisions of the DVA and IPC will be a
nearly impossible task.
The trouble is, it has been accepted that a marital relationship is practically sacrosanct.
Rather than, making the wife worship the husbands every whim, especially sexual, it is
supposed to thrive n mutual respect and trust. It is much more traumatic being a
victim of rape by someone known, a family member, and worse to have to cohabit with
him. How can the law ignore such a huge violation of a fundamental right of freedom
of any married woman, the right to her body, to protect her from any abuse?
As a final piece of argument to show the pressing need for protection of woman, here
are some effects a rape victim may have to live with, Physical injuries to vaginal and anal areas, lacerations, bruising.
Anxiety, shock, depression and suicidal thoughts.
Gynecological effects including miscarriage, stillbirths, bladder infections, STDs
and infertility.
Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and
negative self image.
Marriage does not thrive on sex and the fear of frivolous litigation should not stop
protection from being offered to those caught in abusive traps, where they are
denigrated to the status of chattel. Apart form judicial awakening; we primarily require
generation of awareness. Men are the perpetrators of this crime. Educating boys and
men to view women as valuable partners in life, in the development of society and the
attainment of peace are just as important as taking legal steps protect womens human
rights, says the UN. Men have the social, economic, moral, political, religious and
social responsibility to combat all forms of gender discrimination.
In a country rife with misconceptions of rape, deeply ingrained cultural and religious
stereotypes, and changing social values, globalization has to fast alter the letter of law.