This article has been written by Deepanshi Dwivedi.

Introduction

Marital rape is a  rape of one spouse by the other spouse without the consent of the later. Marital rape basically involves the physical torture of the spouse, sexual intercourse of one with the other spouse.

If we come across, we can find the generally married women are the victim of marital rape. They are the one who faces it in general. there are many cases related to the women in which they are the victim of the marital rape, which happened against their will and against their consent.

Rape and marital rape

SECTION 375 OF THE IPC deals with the concept of rape.it defines rape as the ““a man is said to commit rape if he extent his penis, to any extent, into the vagina. Mouth, urethra, or anus of a women or makes her do.[1]

For a rape there should be 6 criteria to be fulfilled:

1. Against her WILL
2. Without her CONSENT
3. With her consent when obtain by FORCE
4. When she is UNABLE TO COMMUNICATE her consent 
5. With or without her consent when she is under 18 years of age.
6. With her consent when she is unable to understand the nature due to unsoundness or intoxication[2]

The term “consent” means section 2 of INDIAN PENAL CODE defines consent as an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or nonverbal communication. Communicates her willingness to participate in the specific sexual act.

So, if we see the consent of the women is a major factor for showing her willingness, we often see the man dominates over women so, far and this practice is still going on but people ignore the consent of women.

If man wants to have a sexual intercourse with her wife so he does not take the consent of the women.

Marital rape is a rape of a woman after marriage.  Does marriage become a contract between both the spouses so that they can deny the consent of women for sexual intercourse? Here we can find the concept of inequality between men and women . Here the consent of women has been denied, which violates article 14 of the Constitution Of India. Article 14 deals with the equality before law and equal protection of the law , so here women should also be treated as equal and should be given equal chance for consenting for sexual intercourse.

If we talk about the WILL of a women means her wish, her own desire, whereas consent is a permission to do something. This word will determine the person reasoning power of mind whether to do act or not.

There are two facts which we should keep in mind while talking about marital rape as ‘Against her will’ and ‘without her consent. The essence of rape is the absence of consent. In consent the person generally communicates her willingness for the particular act. Every act is done against her will; we can say that there is the absence of consent but every act without the consent is not against the will. so, in marital rape, both the factor will and consent of the women is missing.

Is there any law regarding against the will and without consent?

SECTION 375 IPC is based on section 1 of the sexual offence act,1959 it states that man cannot rape a woman as by consenting to marriage she has given herself to the man.[3]

If a woman, who has not consented for the sexual intercourse with the married man has a right to say NO. marriage does not means that wife has always consented for the physical force.[4](said by Delhi High Court sitting bench of chief justice Gita Mittal and C Hari Shankar). They said that both men and woman have the right to say no in physical relation. But same time Delhi High Court says that marital rape cannot be a ground for the divorce.

But law fails to see the situation of the married women, those who are on daily basis becomes the target of man and are the victim of marital rape.

Why marital rape is not an offence?

The unwillingness sexual intercourse between a husband and wife is recognised as a criminal offence in in almost every country in the world. India is one of the thirty-six countries that have still not criminalized marital rape.

It violates the article 14 as it discriminates between the married women and unmarried women by denying them equal protection from rape and sexual harassment.

At the time when IPC was drafted in the 1860s, a married woman was not considered as an independent legal entity. Rather, she was considered to be a chattel of her husband.[5]

Also, it is violative of Article 21 of the constitution of India, which states that “no person shall be deprived of his life and personal liberty except according to the procedure established by law. Which includes:

1 Right to life: to ensure human to live life with dignity.

2.Right to live with dignity

3. Right to privacy

4.Gender equality and sensitivity

Supreme court has explicitly recognised in article 21 a right to make choices regarding intimate relations. Forced sexual cohabitation is the violation of a fundamental right.[6] Also, we can say that India there is no rule regarding that individual’s right to privacy is lost by marital association.

As our constitution provides all human, right to live with dignity but in marital rape women has no say, they are both physically and mentally tortured by the husband in one or other way. The sexual intercourse without the consent of women adversely affects their mental and physical health and undermines the life to live with dignity. 

A case pending in Delhi High Court says that criminalising the marital rape would “destabilise the institution of marriage” and could become an easy tool to “harass husbands”.[7]

So, what about the women who are harassed on a daily basis? why does court not provide them their rights? Does after marriage, women lose all their human rights?

According to me marital rape should be a punishable offence as, it involves all the elements, which constitutes rape. It is violative of many sections of IPC and constitution of India also.

After marriage this does not mean that women lose all her rights and also if we criminalise the marital rape , it does not destabilise the institution of marriage but will protect the several married women from getting raped without there consent and against their will and sometimes also with there consent when it has been obtaining by force but against their will.

If we see there are many countries in which marital rape is an offence but, it does not destabilise the marriage.  individual dignity is more important than the other.

To make marital rape crime factors to be

When physical violence is illegal in our country, so how can be the sexual violence be legal? Also, rape is illegal so how can be marital rape be legal?

When beating a wife by the husband is a crime, applying physical force on her is also a crime, assault, battery on married women is crime so why not this? Here exception should be removed in order so that women can exercise their constitutional rights to decisional privacy regardless of their marital status.

In the puttaswammy judgement made no difference between the rights of married and unmarried women and nothing in Indian jurisprudence suggest that a woman forego their fundamental rights after marriage.  Then why marital rape is not a crime?

Marital rape infringes the individual right to privacy, dignity and personal liberty. A woman has absolute autonomy over her body and her life, even she is married or not.

There is still an argument over that should marital rape be criminalised or not, many says that there is no need to criminalise this offence as married women are already protected by several acts like Protection of Women from Domestic Violence Act 2005. 

Many international agreements like CEDAW (committee on the elimination of discrimination against women) and national level committee have recommended removing marital rape exception from IPC section 375 that defines rape.[8]

The 2018 survey by national family health survey (NFHS-4) revealed that 31% of women in India experience physical, emotional, or sexual trauma at the hands of their spouses. Also 83% married women within the 15-49 years of age group, claimed to have experienced sexual assault at the hands of their present husbands and against their will.[9]

Section 375 of IPC states that which includes exception “sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age is not rape….”

The government in the case of marital rape has denied the many rights of women, also fundamental right has been violated which clearly mentions that ‘protect the dignity of women’ clearly mentioning the word WOMEN but all are messed up after not making a marital rape an offence.

Also, justice DY Chandrachud says that “right to say NO (to sex) should be there also after marriage” 

Conclusion  

According to me marital rape though an exception in section 375 of IPC should be made a criminal offence in a country like INDIA, as it is violative of many other sections of IPC and also the CONSTITUTION OF INDIA, The rules and Act are made for the protection of the individual rights and respect the dignity of individual so, any law,  rule and act which is violative of all  should be declared null and void. And offence in which it clearly shows how much it disrespects the women gives them no right to say NO neither gives them access to their individual rights.

MARITAL RAPE should be  criminalised , as we all are aware of the fact how man uses his power and force on women and deny the will of women .as a result of which many women are the victim who by one or another reason commits suicide as it is against their will and also with a consent but obtained by force . since from the ancient time, man has the right to dominate over the women but in modern India, this law should be amended.

Also, person accused of marital rape should be punished and a harsh law should be made to punish all the husband who thinks “marriage between men and women is for the fulfilment if the sexual need of man”. The person who thinks women are not capable enough to deny the decision taken by man and husbands.

Even the laws have been made to protect the women, also as no improvement is there so there should be more laws and act for the women. Even the husband in case of marital rape gives no right to women for giving her consent freely , also  committing a marital rape is violative of articles 14, article 15 ,article 21 and according to me section 375 also as it on one side says that  rape is an offence but on other hands include the exception for marital rape. Also, it is violative of the fundamental rights of the individual.

It should be an offence as in our country many women are the victim of marital rape. Also, marital rape in some cases can make a man more brutal against the women as he knows there is no punishment in raping a woman i.e. her wife.

Endnotes

[1]  Text from IPC section 375

[2] Text from IPC section 375, under criminal law

[3] Section 375, IPC

[4] Said by Delhi High court in the plea of marital rape

[5] To have and to hold: the marital rape exemption and the fourteenth amendment ,99 (6) Harry. L.

[6] Right to abstain from sexual intercourse is a long-recognised principle of Indian constitutional jurisprudence, Govind v. state of M.P., AIR (1975) SC 1378(INDIA)

[7] Article by sumedha  Chaudhary, case of RTI Foundation vs Union of India.

[8] Article published “my refusal meant nothing to him “.

[9] National family health survey report 2018

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