This article is written by Nazrin Bano, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).
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India’s judiciary needs to wake up!
The question or debate nowadays in society is what is marital rape and whether it should be criminalized or not? To understand it, we must separate marital rape in two words. Marital and Rape. Marital means relating to marriage or the relations between a married couple. Rape means a male or female has been forced to get into a sexual relationship with another person.
To know collectively what is marital rape, we shall first understand what is marriage and what is rape.
Is marriage a contract or an agreement?
Where two persons of the opposite sex give their consent for marriage. Most importantly, they must have attained the age of majority at the time they enter into such a marriage agreement and it must be in writing. Different religions have different requisites for a valid marriage. But the above-stated point remains the same just followed as per their religious culture/ceremony.
What is rape?
Rape is one of the most heinous and common crimes committed against women. It is the 4th most common crime in India. Rape is defined under Section 375 of the Indian penal code,1860 also known as IPC.
What is meant by rape under the law and its punishment?
Under Section 375 of IPC, 1860 a man is said to commit rape if he penetrates his penis or inserts, to any extent, any object or a part of the body, not being the penis into the private part of a woman or manipulates any part of the body of a woman under any circumstances:
- against her will;
- without her consent;
- with her consent where her consent is obtained by putting her into fear of death or hurt or when her consent is obtained when she is intoxicated or in a state of unsound mind or
- when she believes she is lawfully married to that person but he is not her husband or
- when she is under the age of 18 or when is unable to communicate the consent.
This is rape. There are two exceptions under this Section; the second exception states that a man who does not engage in intercourse with his wife who is not under the age of 15 years is not said to have committed rape.
Further, the punishments for rape are given under Section 376 of the Indian Penal Code, 1860; whenever a person has committed rape he shall be punished with rigorous imprisonment which may extend up to life imprisonment and fine. When it comes to marital rape, it is not defined under IPC due to which a certain class of women is still struggling.
Now, It’s time to know what is marital rape.
What is marital rape?
Currently, under any law, India doesn’t have any provision for marital rape. We can understand marital rape in general terms. In general, marital rape means when a woman is forced by her husband to engage in sexual relations after marriage, where it is committed against her will and her consent is absent for such intercourse. It is said to be forceful sexual intercourse by one partner upon the other partner.
How does it affect a woman?
Also, marriage or a dispute in one’s family is considered to be a personal matter of a family in India but it also infringes a woman’s right to protect her body where she is living in an abusive relationship with her husband or sometimes even with her in-laws. She becomes a victim of domestic violence. Domestic violence is one of the commonly inflicted abuses after a woman gets married, either physically or emotionally or mentally. The sad part of such a barbaric crime committed against a woman is, though her family knows about it she is advised to stay, hardly anyone comes forward to report the same and in the end, we often lose a soul which is innocent. It destroys a woman’s mental health in all these issues, she gets traumatized day and night, for weeks and months, judged by society if she takes any step to protect herself or is seen to be a woman who disobeys her husband.
Constitution of India
A woman’s basic fundamental rights are getting violated due to the abuse from her husband. Article 14 and Article 21 of the Indian constitution states that the right to equality and equal protection to every citizen and the right to life and personal liberty respectively. Some men think that the person whom they marry is their property, however, a female is not anyone’s property because a female is as much entitled to the rights as any other person receives.
Females have proved innumerable times across multiple sectors such as education, sports, elections that they are not less capable than men. If they get the chances or opportunities they will do their best to achieve the goal. Females still have to fight for their basic rights which were already given to them years back when the Indian Constitution was in the making. Marital rape is a despicable crime and has been criminalized by the law in many countries. It is high time that the Indian government should look into it seriously.
Marital rape outside India and its punishment
Since 1979 some countries have criminalised marital rape either by adding a provision in the penal code or by removing the exemption from the provision or by introducing an act to protect a married woman. Countries like Brazil, Austria, Belgium, Finland, Canada, Dominican Republic, Ireland, Israel have taken active role years back either by changing the provision in the penal code or have decriminalized it before the 1980s or after.
- The highest punishment for marital rape is of 15 years of imprisonment in Austria which was criminalised in 1979.
- In 1994, Finland criminalized and proscribed punishment upto 4 years; and if violence has been committed on a married woman then the punishment provided is more severe.
- Jordan: a husband who has committed marital rape on his wife shall be punished with at least 10 years of rigorous imprisonment.
- Ireland: it removed marital rape exemption from Irish criminal law.
- Germany: in 1947, the exemption was removed through an amendment.
- Dominican republic: criminalized spousal rape in 1997.
- US: marital rape has been criminalized.
- Israel: In 1980, the decision of the Supreme Court of Israel criminalised marital rape. It was considered a felony crime, with punishment up to 16 years or 20 years.
India: It doesn’t consider marital rape a crime yet, but it has an exception in the IPC under Section 375, a man who has intercourse with his wife who is above the age of 15 years is not considered as raped by her husband. While intercourse with a separated wife is considered as rape and such a person shall be punished up to 7 years of imprisonment under a separate law.
Indian laws on marital rape
Today worldwide, India stands one amongst the 36 countries that haven’t criminalized marital rape. Those countries that have not yet criminalized marital rape are mostly developing nations/countries.
- CASE: In Nimishbhai Bhartibhai Desai vs State of Gujarat 2018, the question was raised whether a husband who is forcing her wife to indulge in oral sex would amount to rape or not and should it be punished under Section 376 of IPC?
The court took this matter and said that our country hasn’t made marital rape a criminal offence till now. Because of the fear amongst politicians that it will destabilise the institution of marriage and also women can use this to act against their husband and make false charges against him. Marital rape can’t be unseen by law as it is equal to rape committed by a husband upon his wife so if any husband assaults his wife he would be punished under IPC for the offence of assault but if the same husband forces his wife to indulge in sexual intercourse he would be liable for the offence of assault only under valid marriage and not for rape.
How is it fair, when a married woman is raped by her husband and he is punished for the offence of assault and not rape? An investigation can tell for how long a wife has been raped but the investigation cannot tell us what she has suffered in the past few days or months or sometimes even years. Even if a husband does that for once it is a crime against his wife whom he shall protect and not endanger her life or harm her dignity or lower her in any way whatsoever.
He must be punished for the act he has caused to a human body. We cannot measure the wounds (physical and mental) he has caused nor can anybody compensate for these acts. We should support such women because not every female who suffers decides to speak up about her abusive relationship. We as respected citizens of India should help her out, console her, guide her and in the process protect another woman. While it is known to us now that in India a judicially separated wife is protected under separate law by the Indian legislation the married women should also be protected. In my opinion, the second exemption given under Section 375 of the Indian Penal Code,1860 should be removed by an amendment to protect the Indian woman against marital rape. It’s high time that the Indian judiciary should take a step and deliver a landmark judgment on marital rape.
- Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April, 2018 (indiankanoon.org)
- Only 36 Countries Have Not Criminalised Marital Rape, India Is One of Them – TheLeaflet
- MARITAL RAPE: History, Research, and Practice on JSTOR
- Article 14 in The Constitution Of India 1949 (indiankanoon.org)
- Marital rape: Marriage can’t mean irrevocable implied consent | OPINION – Opinion Columns News (indiatoday.in)
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