This article is written by Pratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan. She has discussed what is marital rape and whether it is criminalised in India. Furthermore, the article elucidates the reasons for and consequences of making marital rape a criminal offence.
The temples of justice might appear to be a baronial mansion but are inwardly warrens. Isn’t marital rape a hot button issue. For it is so palpable that the legislature is side-stepping its obligation. The central theme here is that why marital rape is yet not been recognised as a criminal offence and there is a dire need for laws on marital rape.
Rape is an offence against women. Encroachment of her dignity and self-esteem without her consent and when such an act is committed by her own husband, it puts the woman to the position of an object used merely for fulfilling one’s sexual desires.
If we consider rape “genus“, then Marital rape is its species. According to the Oxford dictionary meaning “the rape committed by the person to whom the victim is married is marital rape”. Marital rape is any undesirable sexual conduct by a partner or ex-partner, committed without the consent or against a female’s will, or consent may be obtained by force, or threat of force, intimidation, or when a person is not in state of giving consent that is forceful sexual intercourse by a man with his own wife. The sad part is that the idea of “consent” stands invalid and this form of domestic violence and sexual abuse is still not recognised as a crime in India and many other parts of the world.
Though marital rape is the most common and offensive form of humiliation in Indian society, it is hidden behind the cover of marital status. Social practices and legal provisions in India mutually declare the denial of women sexual agency and bodily privacy, which is the core right of a women human rights.
India is one amongst those thirty-six countries who have still not criminalised marital rape. However, the Supreme court and various High courts are deluged with several petitions challenging the constitutionality of this exception of section 375 of the Indian Penal Code (hereinafter referred to as IPC).
Difference between rape and marital rape
- Rape is being criminalised under Indian Law under section 375 of IPC, whereas marital rape is yet not recognised as crime and also it’s an exception to section 375 of IPC states that Sexual intercourse by a man with his own wife is not rape, condition that the wife should not be under fifteen years of age.
Therefore, it is clear that marital rape can’t be covered under the definition of rape.
- For any action to be considered as rape, the relationship between the victim and rapist is not the concerned point, whereas marital rape is a species of rape. Therefore, it deals explicitly with the rape of a wife by his spouse without her consent. Hence it can be concluded from section 375 of IPC that marital rape is a legal act recognised by Indian law.
Types of Marital Rape
There are basically three kinds of marital rape which are identified by legal scholars, generally be recognised in the society
1. Battering rape
This form of rape involves both physical and sexual violence which is experienced by the victim in her relation, such an experience involves violence in various forms. Some are beaten by their partners during sexual violence, or while the rape is being committed, it follows with the act of physical violence where the husband wish to have sex and forces his wife for same against her will. Majority of the victims of marital rape experience this category of harshness.
2. Force-only rape
Amount of force is used by the husbands is limited to the unit required to force their wives in the force-only category of marital rape. Such force is usually used when the wife has refused for sexual intercourse.
3. Obsessive rape:
Whenever a husband is obsessed of have sexual activities and forces his wife for the same and if she refuses then the act involves assault, torture and/or perverse sexual acts and is often physically violent which has been called as sadistic or obsessive rape that is experienced by the remaining women
Reasons why Marital Rape is still legal in India
Lack of laws
It is not directly stated anywhere in any law that marital rape is a legal action under Indian laws whereas exception of section 375 of IPC makes it clear that husband engaging in sexual acts with his wife not being below the age of 15 years will not be covered under the definition of Rape.
Lack of laws and fear of social image against the commission of marital rape is one of the main dominant reasons for this evil of marital rape and that is still hidden behind the sacred relationship of marriage. The woman has rights to protect the privacy of her body if the person violating such privacy is not known to her, but when the assassin of her bodily injuries and mental pain is her own husband, whom she got married with all the joyful jolly then, such protection is taken away by the legislators.
Highlighting the same, a woman (wife) has to have sex with her husband irrespective of her will, consent, health, etc. each and every time on demand of her partner. i.e. “consent” of a woman has not been considered anywhere in the whole concept of marriage initially from selecting her spouse till the end of such a one-sided relationship.
Under Hindu Law, marriage is a sacrament, which is once tied then can never be broken down by anyone due to any reason. The objective behind such a relationship is to perform religious duties and to beget progeny. Therefore, marriage is compulsory and more so in the case of female whereas under Muslim law marriage is a social concept and object behind such a relation is the production of a child.
Therefore, under Muslim law, it clearly states that marriage is a mode of fulfilling sexual desires of men whether a women want or not. There is no focus on the human rights of a woman as if they have not been identified as humans.
Another point that should be focused under this head is Economic dependence of a woman over her husband and in-laws because earlier women are not supposed to move out of the house, though this mindset is changing slowly and steadily still exists in many families therefore, married women are unable to protect themselves from such a wrongful practice and are bound to face such brutality of their husbands.
It is generally believed that women in India are 40% more likely to be subjected to rape from their husband than by a stranger. According to a 2013 survey, an estimated 27,515,391 women aged fifteen to forty-nine years went through sexual violence in India. Of this aforementioned number, 2,522,817 of those affected women were between the age groups of fifteen to nineteen years.
This is the age group that experiences 24% of the rape cases in India. Although marital rape gets registered in the hospitals, they are rarely reported due to marital rape being excluded from the definition of rape under section 375. Estimates are that only 1% of rapes are in fact reported.
Marital rape and law
Though Indian laws have advanced in every possible field still marital rape is not yet considered as an offence. Despite amendments, law commissions analysis and new legislation, one of the most humiliating things is that such a heinous and cripple acts is not an offence in India. The point which is focused here is that the concern of a woman for protection of her marital relationship irrespective of not having any personal protection of her privacy, which tells us that the legislation has been either non-existent or obscure and everything has just dependent upon the will and sexual demands of males in a marital relationship.
Interpretation by Courts has a major role to play in deciding such cases as there is no stated provision for such offence. Section 375 of IPC, define rape and specifies the acts which are to be considered as rape before the law, said section has echoing very obsolete sentiments, mentioned as its exception clause i.e. any man engaging in any sexual acts with his own wife, and the same must not be below the age of 15 years will not be considered as rape.
According to the provision of section 376, any person accused of committing rape should be punished with imprisonment of not less than 7 years, that may extend to life or for a term stretching upto 10 years and shall also be liable to fine unless the victim is his own wife, and is not under 15 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. Under this section, marital rape be considered as an offence only in one condition i.e.when the wife victimised of such a heinous act is below 12 years of age.
If the age of the wife is between 12 to 15 years and such forceful act or any sexual act is committed by her husband against her will, however, less serious, attracting milder punishment. Once, she is above 15 years of age, there is no legal protection provided to her, which is in direct contravention of human rights regulations.
Loophole to be discussed here is that when the legal age of consent for marriage is 18 then why protection from sexual abuse if married before 18 is given only up to 15 years of age, there is no remedy she has 15 years of age. The Indian Penal Code was amended in 1983 for the criminalisation of spousal rape during the period of judicial separation.
Under Domestic Violence Act, 2005
Protection of women from Domestic Violence Act was enacted in 2005 for providing legal protection to a woman where be face with any crime of domestic violence although the also didn’t consider marital rape as an offence but still under this act if a woman is victimised of marital rape then she can approach the court seeking judicial separation, which implies that under this act marital rape can be taken as a ground before court to obtain judicial separation from her husband.
This is just a mini step made by the legislature for making recognising of such offences. This is more which needs to in done by parliament in this regard.
2. Section 376(B) of IPC
Section 376B provides punishment for a husband who is living separately whether under a decree of divorce or otherwise, forcefully has sexual intercourse with his wife shall be punished with imprisonment of not less than two years which may extend to seven years.
Reviewing the judicial history on the forceful acts causing serious injuries by the husband on the wife the court delivered some of the observation are as follows.
Case Law One
Saretha vs T. Venkata Subbaih, the court held that “There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person”
If State enforced sexual intercourse between husband and wife is a violation of the right to privacy, similarly a woman’s right to privacy will be equally violated in case of unconsensual sexual intercourse with her husband. Rights and duties in a marriage should be equally given to both the partners, as its creation and dissolution according to the law is a right given to both and also are not the terms of a private contract between the two individuals. The right to privacy is not lost by marital association.
2. Case Law Two
The Supreme Court, in State of Maharashtra vs Madhukar Narayan Mandikar, has referred to the right of privacy over one’s body. In the preferred case, it was decided that prostitutes have the right to refuse sexual intercourse as she is not married to anyone whoever is putting sexual demand before her. What is hard to digest is to know that all stranger rapes have been penalised and except wives, all females, have been given the right of privacy over their bodies.
3. Case Law Three
Recently, In the case of Independent Thought vs. Union of India and Anr. Supreme court held that Exception 2 of Section 375 IPC is liable to be struck down on certain grounds as it relates to a girl child below 18 years. Such as:
- It is discretionary and violative of Article 14, 15 and 21 of the Constitution of India.
- It is conflicting with the provisions of POCSO, which must prevail as it a special law for the protection of girl child.
Therefore, Exception 2 of section 375 IPC is read down as follows:
Sexual intercourse or sexual acts by a male with his own wife, the wife not being 18 years, is not rape.
Problem is that it has been accepted that a marital relationship is practically considered as very important. Rather than, one-sided respect demands, it should be a mutually respectable and truthful relationship. It is much terrifying to be raped by someone to whom you have married and known him well, a family member. How can the legislature ignore such a colossal misdemeanour of a fundamental right of freedom of any married woman? The question seeks an immediate answer.
After going through the whole content straight answer to the title is “No”. Marital rape is yet not recognised as an offence in India. There is a need to understand that marital rape is a crime that is to be recognised by the government, and every individual should report for it.
There is a demand for change in the definition of rape. Indian law must be equivalent to men and women irrespective of being married or single. Marital rape is not just a happening behind an iron curtain, whereas it is a crime issue of the right to privacy of women. Marrying a man doesn’t mean giving consent for physical and mental torture to one’s own self by fulfilling the sexual desire of the person to whom you are married.
Can the State really break the walls of privacy of the home? The answer to this is “yes”. As the wall is already broken as states have entered inside in the cases of cruelty, divorce and dowry demand, then why this serious and heinous offence is left out from the ambit of the legislature. When a state can act as an arbitrator during the dissolution of marriage then, why not come in picture for protection of women’s right to her body.