“A successful marriage requires falling in love many times always with the same person”
The Institution of Marriage in India
In 21st century where most of the world believes marriage to be a contract, we in India widely believe it to be a sacrament. Hindu law defines marriage as, a sacred relationship happening between two consenting adults of opposite sex. On the other hand, the Islamic jurisprudence considers marriage as, legal and social contract between two consenting persons of opposite sex. There are many definitions of marriage under each personal law by eminent scholars. The meaning of marriage does not change though; it is a bond of love, respect, trust and care between two persons willing to go through hell and heaven together.
What is marital rape?
Marital rape can be defined as sexual intercourse with one’s spouse without his/her free consent. So what’s the difference between rape and marital rape? Just one. Marital rape is done under the defense “she is my wife”. Section 375 of the Indian Penal Code (hereinafter, IPC) defines “rape” as sexual intercourse without the victim’s free consent. But the exception 2 mentions, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The law itself gives the man to have defense in the name of marriage. A girl when raped without marriage is criminalized, and the same thing when happens to her by her own legally wedded spouse, it’s not an offense? Rape is rape, be it by someone stranger, by someone familiar or be it by her own spouse.
The reality check
India is one of the 36 countries that haven’t criminalized marital rape. The National Health and Family Survey-4 for 2015-16 showed that only 5.4% women are the victims of marital rape. This data doesn’t consist of the numerous figures shown by different NGOs and other women welfare committees. According to a report, 66% married women in India experience physical and sexual violence by their husbands. And only 10% of the married victims of sexual violence seek help. And most of the victims don’t even get the required help. They are asked to “adjust” by the police, even by their families. Marital rape exists in society but not in law.
Marital rape is not criminalized under any law in India. Section 375 of the IPC clearly denies that spousal rape is rape. Indian Law gives the men to have defense for the evil practice under the name of marriage. In Nimeshbhai Bharatbhai Desai vs the State Of Gujarat, Justice J.B. Pardiwala observed that “A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows men and women to believe that wife rape is acceptable. Making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape”.
Exception 2 of section 375 of IPC violates article 14 of the Constitution of India, which gives the right to be treated equally under the law. If an unmarried woman gets raped, it is criminalized but when the same happens to a married woman by her own spouse, the law doesn’t treat it as a criminal offense. Arguments may arise mentioning section 498A of the IPC. It criminalizes domestic violence on a wife by her spouse or his family members. The punishment for rape in India is minimum 20 years of rigorous imprisonment, which may extend to life imprisonment and even death sentence. The punishment under section 498A is just 3 years of imprisonment and the accused is liable to a fine as well. This clearly marks inequality between the married and unmarried women. The crime doesn’t change whether the victim is married or unmarried. Neither the cruel effects on her changes. Why is the law different then?
Section 376B of the IPC states that sexual intercourse with one’s own wife without her free consent, who is leaving separately, is a criminal offense punishable with imprisonment not less than 2 years; which may extend to 7 years with fine. It is clear that this section too doesn’t have any mention of how to save the women who are going through the pain staying under the same roof with the culprit. The law represents inequality by such sections.
The law also violates article 21 of the Constitution of India. Which gives a person the right to life and personal liberty. By not securing the victims of marital rape, the law is taking their right away.
Hearing petitions for criminalizing marital rape the Delhi HC observed that, marriage doesn’t impose any responsibility on the wife to have sex with her spouse as and when he wants. The bench also notices that any kind of threat to have sex with the wife will also constitute rape. Marriage is something more than having sex, and rape is rape. The crime does not change with the marital status of the women. The law must not change too.
It is disheartening how the Central Government stood against it using section 498A, section 376B as a defense. But as we already discussed, those defences cannot change the fact that law is being illogical and doing nothing to protect the victims of marital rape.
What is the remedy then? The law has to change. The law has to criminalize marital rape and treat it as rape in general.
The Central Government irrationally denied criminalizing marital rape saying,” The Question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.”
For the sake of evidence, the investigators must keep in mind that absence of physical bruises do not mark that violence hasn’t taken place. The Delhi HC observed that absent of free consent does not necessarily mean physical force was applied. As we know, consent is said to be free if it is not caused by coercion, undue influence, fraud, misrepresentation and mistake. Moreover, special support has to be provided to the victim keeping the sensitivity of the crime in mind.
When rape has taken place, forensic tests can prove the forceful sexual intercourse. The law already has the provision to collect evidence in case of rapes. Why will it be hard to get evidence in case of spousal rapes?
Keeping the background and situation of every case in mind, secure methods can be taken to take statements of the victims. Moreover, protection of the victim during the whole process has to be secured.
The Centre also brought up “misuse of the law”, “illiteracy”, “lack of financial empowerment of women”, “mindset of the society”, “vast diversity”, “poverty,” etc as reasons for not criminalizing marital rape. This is not only illogical and discouraging but also a reflection of the vague and biased ideas of the minds of the supreme power of the country.
The Centre also states it would be “westernizing of Indian tradition”. This is merely an irrational effort to cover up the disabilities of the law to protect the victims of marital rape. We are a developing country which gives and takes ideas from the ideas for the sake of development. Most of our laws are made by the British (i.e. by the westerns) including IPC. Failing to secure the rights of the women cannot be covered by giving away such lame excuses.
First, we need to make the people understand that it is a problem; a serious problem which is harmful to the all over development of the country. As Gandhiji has said, “Woman is the companion of man gifted with equal mental capacity.” So they deserved to be treated equally. They deserve the respect, love, trust and care from her partner. During those seven steps around the holy fire, a man promises to his wife to cherish the wife and provide welfare and happiness for her. Marital rape breaks the trust and confidence in the whole idea of marriage. The society has to be educated. And by criminalizing the evil practice of marital rape, the law will ensure the women that they are not alone to fight for what they deserve.
 Nimeshbhai Bharatbhai Desai vs. the State Of Gujarat, Criminal Appeal NO. 26957 of 2017 (High Court of Gujrat)