NEED FOR THE CRIMINALISATION OF MARITAL RAPES IN INDIA

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Rape is a kind of sexual assault in which sexual intercourse or other forms of sexual penetration are performed on a person without their consent. The integral part is a lack of consent and the act may be carried out through abuse of authority, physical force, or against an individual who is unable to give assent, coercion, such as someone who is unconscious or is below the legal age of consent. Marital abuse is a form of domestic violence and sexual abuse. Marital rape which is also known as spousal rape, the undesired intercourse with one’s spouse without spouse’s consent. undesired intercourse refers to any type of penetration (whether anal, vaginal, or oral) that is done against her will or without her agreement.

Despite the fact that several nations have already criminalized marital rape, India is one of 36 countries where it is still not punishable. In a landmark case in the United Kingdom, R v. R[1], a husband contested his ‘conviction for attempted rape’ on the grounds that marriage conferred irreversible permission. His argument was rejected, and the court found him guilty because the exemption to marital rape is a “legal doctrine under common law.” The court decided that the connection between the parties is irrelevant for a person to be punished for rape. Only when the woman is under the age of 15 is forced sex in marriage considered a crime under Section 375 of the Indian Penal Code (IPC). As a result, marital rape is not a crime under the IPC. This is founded on the belief that after marriage, a woman has no right to decline sex with her husband. This grants men the right to be sexually dominating over their spouses. This is a clear violation of human rights norms, and gives husbands power to rape their wives.” The underlying cause for marital rape is the misconception associated with marriage itself. In India the grassroot level of understanding marriage is quite different in sense that it’s not the mere obligation which exits between the two spouses but it’s considered to be the union of the two individuals and one of the most sacred relationships. Moreover, this ideology pertinent to marriage lefts a woman with no choice rather to submit herself which she thinks is the obligation which one has to fulfill to become a dutiful wife. As per the Indian government’s latest National Family Health Survey[2], about 30% Indian women aged 18-49 reported having experienced spousal violence. As per the data in terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

Thus, in India, marital rape is not a crime and is solely included by the concept of domestic violence as specified by the Protection of Women from Domestic Violence Act, 2005. The Domestic Violence Act is a civil legislation that exclusively gives the woman civil remedies.

Kinds Marital Rape

Legal analysts have recognized three types of marital rape as often occurring in society[3].

  • Battering rapes: In battering rapes, women are subjected to both physical and sexual abuse in the relationship, and they are subjected to this violence in a variety of ways. Some are beaten during the sexual violence, or the rape may occur after a physically violent event in which the husband attempts to make amends and coerces his wife to have sex against her will. This category includes the vast majority of victims of marital rape.
  • Force-only rape: In force-only rape, men use just the amount of force required to persuade their wives; beating is not common in this kind of rape. Typically, the assaults occur after the partner has declined sexual intercourse.
  • Sadistic or obsessive rape: Other women have been subjected to what has been labelled as sadistic or obsessive rape; these assaults frequently entail torture and/or deviant sexual practices and thus are physically brutal.

Legal Position in India[4]

The IPC defines rape under sec. 375 as:

A man is considered to commit rape if, with the exceptions listed below, he has sexual intercourse with a woman under any of the six conditions listed below:

• Against her will.

• With or without her consent, when she is under sixteen years of age.

• Without her consent.

• With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

• With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

• With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Rape of a judicially separated wife was made a crime by Section 376-A of the IPC, 1860, which was introduced in 1983. It was based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, and the Law Commission of India. Thus, non-consensual intercourse with a wife between the ages of 12 and 15 years. However, the punishment is either a fine or jail for a maximum of two years, or both, which is far less severe than the sentence for rape outside of marriage. Otherwise, unless they are living apart under a decree of separation, a man is not accountable for any sexual act that he violently conducts on his wife (excluding sodomy), despite the fact that the wife may be subjected to significant sexual humiliation.

Civil Law Aspect

Committing a Marital rape in India is not a crime but partially is protected under civil law. According to the Protection of Women from Domestic Violence Act, 2005, any act, omission, or commission or conduct by the respondent that causes physical abuse, sexual abuse, verbal abuse, or psychological abuse to the aggrieved person, or threatens to do so, constitutes domestic violence; this includes physical harm, sexual harm, mental harm, or economic harm. The law defines sexual abuse as any act of a sexual nature that humiliates, degrades, or otherwise violates the dignity of woman.

As a result, marital rape is an act that violates a woman’s dignity and humiliates and abuses her. Domestic violence includes sexual intercourse without the consent of the wife. hence it provides legal recourse to a wife for marital rape. It provides legal recourse to a wife for marital rape. As a result, this Act does nothing to deter violence itself, but only provides a way to remove themselves from a potentially dangerous situation.

Constitutional Law Aspect

In India, marital rape isn’t criminalized, but it violates Indian Constitutional Articles 14 and 21. In accordance with Article 14 of the Indian Constitution, no state shall deny equality before the law to anyone within its borders or deny equal protection of the law. In spite of the Constitution’s guarantee of equality for all, Indian criminal law discriminates against women who are raped by their own husbands. In the Indian Penal Code, section 375 has been interpreted as providing an exception for women over 15 years of age that violates article 14 of the Constitution.

The Supreme Court held in Budhan Choudhary v. State of Bihar [5]   that any classification under Article 14 of the Indian Constitution must pass a reasonableness test that can only be passed if the classification is rationally related to the purpose of the act.

However, Exception 2 frustrates the purpose of Section 375. The purpose of this law is to protect women and punish those who rape them. This objective cannot be served by exempting husbands from punishment. Essentially, this Exception encourages husbands to forcefully enter into sexual relations with their wives, since they are aware that their acts won’t be penalized by the law. The Exception fails to satisfy the test of reasonableness because it does not have a rational connection with the underlying objective of the Act, and violates Article 14 of the Indian Constitution. A woman’s right to privacy and sanctity is violated by acts of sexual violence, apart from being a dehumanizing act. Supreme Court confirmed the right to privacy as a constitutional right in the case of K.S. Puttuswamy (Retd.) v. Union of India.[6] Unless there are contrary rulings stating that marital association adversely affects the individual’s right to privacy, the above rulings do not make distinctions between married and unmarried women. Thus, according to Article 21 of the Constitution, rape is an interdiction of fundamental rights, regardless of the fact that the victim was married to the perpetrator.

Also read: Mediation bill

India’s Obstacles to Criminalizing Marital Rapes

Burden of proof:

In a married relation one may confidently conclude that sexual intercourse between marital partners is a usual flow of nature, and the preceding presupposition loses its basis and validity. This brings us to the point where a wife must establish beyond a reasonable doubt that her husband’s sexual assault on a specific event was violent. This may make it difficult for the prosecution to demonstrate that, without the victim’s evidence, it is nearly impossible to produce reliable evidence, both direct and circumstantial, to establish the charge beyond reasonable doubt. It is delusory for the prosecution to assert that the alleged sexual intercourse between married couples occurred against the wife’s consent.

Another significant point is Poor State of the Judicial System: Some of the reasons for low rates of prosecution in cases of marital rape in India include: poor crime reporting owing to societal conditioning and lack legal understanding. Inaccurate technique of collecting data from the National Crime Records Bureau (NCRB). Out-of-court settlements are possible owing to the long legal procedure and a lack of acceptable evidence. Report of the Justice J. S. Verma Committee was formed in the aftermath of the horrible Nirbhaya gang rape in 2012. While some of its proposals influenced the Criminal Law (Amendment) Act of 2013, its more extreme recommendations, such as those on marital rape, were ignored.

Family compulsion:

Marriage, according to Hindu Law, is a sacrament that, once linked, can never be torn down by anybody for any cause. The goal of such a partnership is to complete religious responsibilities and have children. As a result, marriage is obligatory, especially for females, although in Muslim law marriage is a social notion with the goal of producing a child as the aim of such a relationship.

As a result, Muslim law plainly declares that marriage is a method of gratifying men’s sexual cravings, whether a woman wants it or not. There is little emphasis on a woman’s human rights as if she has not been recognised as a person.

Social pressure

One of the primary prominent causes for this evil of marital rape that is still disguised behind the sacred bond of marriage is a lack of legislation and fear of societal image against the commission of marital rape. The woman has rights to safeguard the privacy of her body if the person breaching such privacy is unknown to her, but when the assassin of her bodily injuries and mental suffering is her own husband, whom she married with all the joy and glee, lawmakers take away such protection.

To emphasise the point, a woman (wife) is required to have sex with her husband on demand, regardless of her will, consent, wellbeing, or anything else. i.e., “consent” of a woman has not been addressed anywhere in the entire notion of marriage, beginning with the selection of her spouse and continuing until the conclusion of such a one-sided relationship.

Economic reliance

Another challenge that should be addressed under this heading is a woman’s economic reliance on her husband and in-laws because, while this mindset is slowly changing, it still exists in many families; as a result, married women are unable to protect themselves from such a wrongful practise and are forced to face such brutal violence from their husbands.

Marital Rape Cases in the Courts

Courts have heard various instances involving marital rape and rendered rulings while keeping important societal factors in mind, such as:

The union government argued in the case of RIT Foundation versus Union of India that if marital rape is criminalised, the sacred institution of marriage will be destabilised. In the case of Independent Thought vs Union of India and Anr[7], the Supreme Court ruled that if a minor wife, aged fifteen to eighteen years, is the victim of marital rape, her husband’s actions are unlawful. However, the court did not place a high value on circumstances in which the wife is over the age of eighteen.

In the case of Saretha vs. T. Venkata Subbaih[8], the court ruled that a woman’s vested right will be breached if she is compelled to have sexual relations with her spouse against her desire. Both couples’ rights and responsibilities must be distributed equally. When a wife goes into a married relationship with her husband, her rights do not end.

CONCLUSION

In India, marital rape is still not considered a crime. There is a need to comprehend that marital rape is a crime that the law must recognise, and that every individual must report it. Injuries to private organs, injury, discomfort, bruises, torn muscles, tiredness, and vomiting are all possible physical consequences of marital rape. Women who have been raped by their spouses are more likely to suffer from serious psychological effects. They live in continual worry of being wounded from time to time. Section 375 of the penal code does not regard marital rape as an offence. The Bench in Nimeshbhai Bharatbhai Desai v. State of Gujarat[9] stated that the wife has no authority to implement prosecution against her lawfully wedded husband for the unlawful act punishable under Section 376 because the idea is that by marriage, a woman gives her partner irrevocable consent to have sex with her whenever he desires it.

There is a necessity for the definition of rape to be changed. Men and women must be treated equally under Indian law, regardless of whether they are married or unmarried. Marital rape is not merely something that happens behind a curtain; it is a crime that violates women’s right to privacy. Marrying a man does not imply consenting to physical and emotional pain of oneself by satisfying the sexual desire of the person to whom you are married. Can the state truly breach the private barriers of the home? perhaps, the answer is “yes.” Given that the wall has previously been breached by states in situations of cruelty, divorce, and dowry demand, it is puzzling that this significant and horrific violation is still outside the purview of the legislative. When a state can intervene as an arbitrator in the breakup of a marriage, why not step in to defend a woman’s right to her body.


[1] [1992] 1 AC 599

[2]  Government of India National Family Health Survey 2019-21 (NFHS-5) (Ministry of Health &Family Welfare )

[3] Types of marital rapes available at https://martinslibrary.blogspot.com/2014/09/rape-marital-rape-types-of-marital-rape.html

[4] Raveena Rao Kallakuru & Pradyumna Soni “CRIMINALISATION OF MARITAL RAPE IN INDIA” NUJS LAW REVIEW (2018)

[5] 1955 AIR 191, 1955 SCR (1)1045

[6] AIR (2017) 10 SCC 1

[7] (2017) 10 SCC 800

[8] AIR 1983 AP 356

[9] SCC Online Guj 732,[128]65.

Author: Anjali Singh, Vivekananda institute of professional studies

Editor: Kanishka VaishSenior Editor, LexLife India