Though criminalised, marital rape is still a hidden offense in our society.
Offense of rape is the direct violation of individual autonomy, individual freedom and right to self determination. Marriage is not only enough to get permission to have sex, consent is the most important element. It shouldn’t be made difficult for married women to seek justice.
Marriage between two individuals is often considered sacred and is cherished as a gift of the divine. It is the process that makes the relationship between two people public, official, and permanent. It is the formal declaration of the bond of two, for a lifetime. Marriage is supposed to give you strength, constant support, and a true friendship forever. It is supposed to make you feel complete. But, not all marriages end with a happily ever after story. The experience of marriage could be divine or it could even be frightening in today’s world. Marriage is often emphasized as “sacred” and “an unbreakable bond” for a lifetime that cannot be undone. But, the question is – is it right to impose sanctity on marriage and completely ignore the fact that this institution can deteriorate? Are marriages sacred or is it that society wants us to believe? If marriages are holy, sacred, and guided by the divine, then why does it result in issues like domestic violence, dowry, and marital rape? It’s high time we start asking and analyzing these questions.
Since the beginning of human history, women have been seen as weak, vulnerable, emotional, sex symbols and property. Before the 20th century, the concept of marital rape could not even be imagined, it would have been a matter of joke. Unfortunately, it still is for some of the ignorant sick-minded people but at least, the laws in most countries, including Nepal have recognized marital rape as a heinous crime. Historically women were considered as private property of men, with whom they could have sexual intercourse whenever they wanted without the need of her consent. It was believed that because of their marital relationship, she had agreed to have sexual relations. It was only after the feminist movement that the concept of marital rape evolved as a crime.
Analyzing SC’s decision on marital rape
Marital rape refers to forcible sexual assault by one spouse towards the other. It is a non-consensual sexual intercourse within a marriage. It is a violation of the fundamental human right to bodily autonomy and can have physical, emotional, and psychological consequences on the victim. Marital rape is mostly, but not exclusively, experienced by women. It can form a vicious cycle of abusive and toxic relationships between the couple and can even perpetuate chronic violence. The reason why marital rape has been overlooked throughout history or sometimes even today, is because “marriage’ is used as a common defense in sexual assault cases. This has led to the invalidation of the trauma of marital rape survivors resulting in reduced help-seeking because of the fear of social stigma.
On December 6, 2023, the Allahabad High Court acquitted a person because marital rape isn’t an offense if the wife is 18 years old or above. Marital rape remains legal in India through a clause in Section 375 of the IPC, called “Exception 2”, which states “ Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.” In 2017, the Supreme Court raised the age bar from 15 to 18. The Muluki Criminal Code 2074 criminalized marital rape for the first time in Nepal. In 2019, nearly 150 countries had criminalized rape in one form or other. While some countries have explicitly criminalized marital rape, in others there is the provision of punishment for husbands who used violence to have intercourse with their wives. China, Bangladesh, Myanmar, Afghanistan, Malaysia, Singapore, Yemen, and Oman are a few of the other countries along with India where marital rape is still not a criminal offense.
The reason why still all these countries haven’t taken the consequences of marital rape seriously is because of the lack of understanding of consent. The United Nations for Women said, “There are no blurred lines when it comes to consent.” Consent is an expression of free will given by mentally competent and sane people. Consent is one of the most essential elements in establishing whether rape occurs or not. Section 219 of the Muluki Criminal Code states, “Consent obtained by way of coercion, undue influence, threat, misrepresentation, kidnapping or taking of hostage shall not be considered as consent.” Three major things need to be taken into consideration to understand sexual consent, the physical readiness to take part in sexual activity, the mental readiness for it, and finally one needs to interpret the linguistic cues to understand the willingness of others. Silence cannot be understood as consent, nor consent can be assumed based on how someone dresses, whether someone is drunk, or whether they smile too much. Free consent is only the legitimate approach towards engaging in sexual activity, regardless of the status of someone being married.
Legal Development of Marital Rape in Nepal
Marital rape was not declared a crime in Muluki Ain 2020 before its amendment. After the landmark case of Meera Dhungana vs HMG, the Supreme Court issued a directive order in the name of the government to present a bill in the parliament to amend the chapter on rape and to provide appropriate punishment for the offense of marital rape. The commencement of the new Muluki Criminal Code on Bhadra 1st, 2075 led to the incorporation of detailed provisions regarding marital rape. Section 219 (4), of Muluki Criminal Code states, “If the husband commits rape on his wife during the existence of the marital relationship between them, he shall be liable to a sentence of imprisonment for a term not exceeding five years.”
Meera Dhungana vs HMG is one of the landmark cases that helped the supreme court define and establish marital rape as a criminal offense. The writ petition was filed urging for voiding the no. 1 of Chapter of Rape of Muluki Criminal Code 2020 on the ground of its inconsistency with the provisions of CEDAW. Jit Kumari Pangeni vs the Government of Nepal is another landmark case that helped in increasing the provision of punishment regarding marital rape. Initially, the provision of punishment was only 3 to 6 years of imprisonment. However, with this writ petition, the court issues a directive order to the government to issue an appropriate bill regarding the provision amendment.
The criminalization of marital rape is a milestone in the case of Nepal, where people are so reluctant to adapt to new changes. However, social acceptance of the existence of marital rape is still not fully achieved. The provision of the criminalization of marital rape has become invisible because of the lack of policies to implement the law. In case of Nepal, physical and sexual violence, including marital rape in Nepal remains largely unreported due to the social stigma and the belief that sexual relationship between spouses doesn’t constitute rape. Lack of legal literacy is one of the main reasons why rape within marriage isn’t considered as unethical, illegal which in turn prevents victims from taking legal actions against the perpetrators.
Though criminalised, marital rape is still a hidden offense in our society. Offense of rape is the direct violation of individual autonomy, individual freedom and right to self determination. Marriage is not only enough to get permission to have sex, consent is the most important element. It shouldn’t be made difficult for married women to seek justice. Changes need to be brought both through provisions and interpretation considering the changing needs in society.
