Marital Rape: A Criminal Offence?

By | June 18, 2021
Marital Rape A Criminal Offence

“The being of a woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband, under whose wing, protection and cover she performs everything.” – Justice Blackstone

Introduction

Rape an infringement of humankind, an act of sexual intercourse carried out by force or under threat of injury against a person’s will or a person who is incapable of providing valid consent. Marital Rape is one kind of sexual offence, which is mostly understated because of the common law exemption that precluded the position of a man committing rape to his own wife.

Sexual relations are just adequate when both parties consent to them; any type of constrained sex shall be considered as rape, even when it takes place between two spouses. Consent is the synthesis in sexual relationships. Recognizing marital rape as a civil wrong rather as crime considerably states the patriarchal approach of the society which still treats a woman as a man’s property and believes that a husband has sole right over his wife.

Marital rape is considered domestic violence or a demonstration of sexual maltreatment by one accomplice over the other. The authentic conviction is that through marriage the husband contains sole rights over his better half, and consequently is excluded from any indictment for, as accepted that a married woman cannot deny sexual intercourse with her own significant other.

The obsessive methodology of the general public that a lady is the property of her better half is one reason for precluding marital rape from criminal law. The hesitation of conceding marital rape as a crime exists in order to safeguard the patriarchal notion or to protect the man-centric thought. Marital rape is a genuine cultural issue, the relationship in which spousal assault happens have altogether higher paces of non-sexual savagery and conjugal disappointment, just as lower appraisals of conjugal quality.

Around 35 per cent of women worldwide have experienced either physical and/or sexual violence by their partner at some point. However, some national studies show that 70 per cent of women have experienced physical/sexual violence or harassment by the partner at some point in their lifetime. [1]

Global Database on Violence against Women

A dozen countries allow rapists to avoid prosecution by marrying their victims, UN Women said in its flagship annual Progress of the World’s Women report (2019-2020). As per the reports of United Nations (Women), approximately 35 per cent of women worldwide experience sexual or physical violence, either by a partner or non-partner.

Nearly one in five women aged 15 to 49 globally experienced physical or sexual abuse from a former or current partner or spouse in the year 2018, provided in the UN Women flagship annual Progress of the World’s Women report (2019-2020). In its report, United Nation Women described violence against women as “serious and ubiquitous”.[2]

The issues of sexual/physical violence within marriage assembled worldwide consideration from the second half of the twentieth century. Poland in 1932 turned into the primary nation to have a law unequivocally making marital rape a criminal offence, the consequence of this was to such an extent that many creating and created nations additionally thought to be that rape inside marriage goes under the domain of a criminal offence.

Where Australia, under the effect of woman’s rights in the seventies, turned into the primary common law nation to perceive marital rape as a criminal offence, keeping which numerous precedent-based law nations, similar to Canada, New Zealand, USA have administratively nullified the insusceptibility of rape within marriage.

In the United States of America, every one of the 50 states unequivocally condemned marital rape. The women’s movement of 1970 prompted changes in the law in the United States of America. In 1976, Nebraska turned into the principal state to toss out its marital rape exemption law. After seventeen years, each of the 50 states had revoked their marital rape exception.

The European Parliament in 1986 embraced a resolution, redressed by the European Union, called The European Parliament’s Resolution on Violence against Women of 1986 to condemn the spousal assault. After the appropriation of this resolution by the European Parliament, several other nations including France, Belgium, and Germany likewise viewed marital rape as a criminal offence. In 1991, the House of Lords in the UK struck down its custom-based law rule that a marriage contract consists of an implied women’s consent to all sexual action.

Two- third of nations have laws set up against spousal assault; however numerous nations actually don’t unequivocally condemn assault inside marriage. In excess of 50 nations, including the United States, Nepal, Britain, and South Africa, it is a crime for a spouse to assault his better half, yet that isn’t the situation in a large portion of Asia, where campaigners are pushing for legitimate change. Numerous nations don’t gather information on marital rape when in addition to the fact that it is not a wrongdoing, but rather prevalent difficulties mean it is infrequently announced or talked about. Only 36 nations in this world have not condemned rape within marriage and India is one of them.

Marital Rape in India

According to the Indian Penal Code (IPC), rape is defined under Section 375 as:

“a man is said to commit rape if, he penetrates his penis or inserts any object or a part of the body, not being the penis, or manipulates any part of the body of a woman as to cause penetration, or applies his mouth, to any extent, into vagina, mouth, urethra or anus of a woman, or makes her do so with him or any other person.”

However, exception 2 to section 375 of IPC states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”, thus immunizes the act of marital rape from prosecution. Therefore, the above provision of the Indian Penal Code does not encompass the issue of marital rape holistically.

In the Harvinder Kaur v. Haramander Singh case, AIR 1984 Delhi 66,[3] the Delhi High Court expressed that the Constitution couldn’t meddle in a family since it would annihilate the establishment of marriage. The court said,

“In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

Later in the 1991 instance of State of Maharashtra And Another v. Madhukar Narayan Mardikar, AIR 1991 SC 207, 1991,[4] the Supreme Court expressed that every woman has the option to protection, which should be liberated from infringement. In the perspective on spousal assault, different Writ petitions have been recorded at The Supreme Court of India and numerous High Courts, testing the lawfulness of Exception 2.

On account of Nimeshbhai Bharatbhai Desai v. the State of Gujarat,[5] the court held expressed that, “marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice. Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.”

The essential point of the 2013 revision was to roll out truly necessary improvements to the meaning of rape and to improve women’s admittance to the overall set of laws. The amendments to the Criminal Penal Code and the Evidence Act were pointed toward guaranteeing that women are not re-misled when they approach the legal system after a demonstration of rape against them.

On account of Independent Thought v. Union of India and Ors,[6] honourable Supreme Court of India expanded the time of assent for sex inside union with eighteen years old. The court expressed that,

“While we are not concerned with the general question of marital rape of an adult woman but only with marital rape of a girl child between 15 and 18 years of age in the context of Exception 2 to Section 375 of the IPC, it is worth noting the view expressed by the Committee on Amendments to Criminal Law.”

Prior to this decision, a sexual demonstration by a spouse on his significant other, where the wife was over fifteen years old didn’t establish assault under criminal law. In this way, the inquiry emerges that, Whether Exception 2 is intrinsically legitimate or not? Does Exception 2 to Section 375 of IPC abuse the established rights given under Article 14 and Article 21 of the Indian Constitution?

Article 14

Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 14, accordingly, shields an individual from State discrimination. Be that as it may, exemption 2 under Section 375 of the Indian Penal Code, 1860, oppresses a spouse with regards to security from assault. Subsequently, it is presented, that with this impact, exemption 2 gave under Section 375 of the Indian Penal Code, 1860, is anything but a sensible characterization, and hence, abuses the security ensured under Article 14 of the Constitution.

Exemption 2 disregards the privilege to balance cherished in Article 14 to the extent that it oppresses married woman by denying them equivalent security from rape and lewd behaviour. The Exception makes classes of a woman dependent on their marital status and vaccinates activities executed by men against their spouses. In doing as such, this Exception makes conceivable the exploitation of wedded woman for reasons unknown other than their married status while shielding an unmarried woman from those equivalent demonstrations.

Exemption 2 gives a differentiation among wedded and unmarried woman likewise disregards Article 14 to the extent that the arrangement made has no objective connection to the fundamental reason for the rule. In Budhan Choudhary v. Territory of Bihar, AIR (1955) SC 19,[7] the Supreme Court held that any arrangement under Article 14 of the Indian Constitution is dependent upon a sensible test that can be passed just if the grouping has some judicious nexus to the target that the demonstration tries to accomplish.

In any case, Exception 2 baffles the reason for Section 375 which is to secure woman and punish the individuals who participate in the inhumane activity of rape. Excluding spouses from punishment is altogether opposing to the goal of section 375. The outcomes of rape are similar whether a woman is wedded or not.

Article 21

Moreover, Exception 2 also violates Article 21 of the Indian Constitution. Article 21 provides that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme Court has deciphered article 21 in different decisions to reach out past the simply strict assurance to life and freedom. It was held that the rights revered in Article 21 incorporate the rights to wellbeing, protection, pride, safe day to day environments, and a protected climate.

In the State of Karnataka v. Krishnappa, AIR (2000) 4 SCC 75,[8] the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” The court likewise held that non-consensual sex adds up to physical and sexual brutality.

In Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922,[9] the court held that rape is a crime against the essential common freedom and infringement of the privilege to a life cherished in Article 21 of the Indian Constitution and gave certain rules to granting remuneration to the victims of the rape. In Chairman, Railway Board v. Chandrima Das,[10] the court held that rape is definitely not a simple matter of infringement of a common right of an individual yet the infringement of Fundamental Rights which is included. Consequently, it mirrors that exception 2 to section 375 of IPC disregards Article 21 of the Indian Constitution.

Conclusion

Nonetheless, with the evolving time, worry towards the protection of woman from badgering and savagery has been planned in the Indian law by giving surplusage rules, including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.” It is sure that changing the law on sexual offences is a formidable and sensitive undertaking, and that’s only the tip of the iceberg in this way, in a nation like India, where there is a contemporaneous presence of a shifted and separated arrangement of individual and strict laws that may clash with the new alterations in the legal criminal law.

Further, however, there is a requirement for considerable changes in the law on sexual offences, for example, making them unbiased and wiping out the disparities, a revolutionary updating of the construction of sexual offenses isn’t prudent. Marital rape doesn’t imply that solitary the spouse would be blameworthy of abusive behaviour at home or intense intercourse with the wife. As in the current scenario, there is an emphasis on sexual orientation fairness. In this manner, a man could likewise be a survivor of spousal assault; powerful nonconsensual sex by his mate.

There is a requirement for to criminalization of rape within marriage under the Indian Penal Code. It is appropriate to take note that the criminal law is in the Concurrent List and is carried out by the States. There is an immense variety in the way of life of the states. Also, subsequently, given something similar, the State Government should make rigid strides in such a manner.

It could likewise be viewed as that there is a need for transformation in Indian society. It might occur by including marital rape within the definition of rape under the Indian penal code or by providing stringent punishments to such demonstrations of offence. Notwithstanding, with the legitimate change, social change is likewise fundamental.

A simple statement of spousal assault as a criminal offence isn’t sufficient. There is additionally a need to teach the majority. It very well may be conceivable through the beginning of workshops or with the assistance of the advanced stage, or other such stages at the local area level, or to the more youthful age in the beginning phase of tutoring. The obligation of shielding woman’s privileges isn’t bound to the legal executive; it should be assimilated in the shared mindset of the country.


[1] Global Database on Violence against Women, UN Women, Available Here

[2] Violence against women and girls, UNSD 2018, UNODC 2018, UNICEF 2018a, UNICEF 2013 and UN Women calculations using data from World Bank 2018, Available Here

[3] AIR 1984 Delhi 66.

[4] AIR 1991 SC 207, 1991.

[5] MANU/GJ/2201/2017.

[6] MANU/SC/1298/2017.

[7] AIR (1955) SC 19.

[8] AIR (2000) 4 SCC 75.

[9] AIR 1996 SC 922.

[10] MANU/SC/0046/2000.


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Author: Jyotsna Vyas

Jyotsana is a law student at the Faculty of law, JECRC University.

3 thoughts on “Marital Rape: A Criminal Offence?

  1. Sanskruti

    Every one should read this. They must know that it is a considerable topic.
    Physical intercourse is a matter of consent for both the partners even if they are married.
    A very informative article to highlight this point.

    Reply

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