Marital Rape: All you need to know

By | May 21, 2022
Marital Rape: All you need to know

Last Updated on by Admin LB

The Article ‘Marital Rape: All you need to know’ is a critical analysis of the scary marital rape for which there is no law in our Country. The Author contemplates that we live in a society where marriage is considered a pious obligation through which a man and a woman satisfy both their social as well as biological needs. Why is so much discrimination between a man and a woman even in the modern era? Women are now doing well in various fields but still why in our society so-called orthodox males dominate.

The author laments if women have no choice over their own bodies after marriage then definitely they have lost their freedom because both privacy and dignity have been snatched through such acts.

Even Supreme Court through various judgments reflected that marital rape is indeed a violation of women’s fundamental rights because their freedom is curtailed.  Legislative enactments should come up to deal with this issue as India is still lagging behind and because of this every day certain women are facing hell-like situations. Marriage cannot allow a man to compel a woman for sexual intercourse.

Society needs to change and even the definition of rape should be broadened to include even after marriage rape, a heinous offence. So, the author’s outcry against Marital Rape is a ruminative issue and the legislature must bring change for “all distressed wives in the society” in order to protect them from the demons disguised as their husbands.

Introduction: Marital Rape 

People say that pairs are made in heaven and it is already decided as to who will be married to whom, which means that there might be many other things are decided as well, like who will be loved, who will be cared for, who will be understood and who will be thrashed and beaten. Is it? Cutting straight to the point, where marriages are considered an essential part of life, there are people who are in essential and desperate need of getting out of a marriage because they are harassed, abused, and assaulted. While there are many ways in which atrocities in marriages happen, one heinous act is ‘Marital Rape’.

When men and women are married, they become husband and wife and are considered as a single entity, this is the emotional side of the concept because, if prior to marriage they are two individuals, where does one person disappear after marriage?

We live in a patriarchal society (this fact cannot be denied on the basis of the argument that women are progressing) and when we talk about a couple as a single entity, mostly the woman among the two disappears, and what fades with her is her identity, her choices, her needs and most importantly her rights. Marital rape is an exclusive example of how a woman is denied the right to choose whether she is ready for physical intercourse. Is this only sufficient to know Martial Rape? No, read further.

What is Marital Rape?

As the name clearly suggests, marital rape is nothing but the commission of rape with a person (mostly women) who is in a marital relationship with another person. In other words, marital rape is forced sex with a spouse without consent for the same. It is a widespread problem that despite being discussed a lot is unable to be rocked by a strong legal provision that can serve relief to the victims of this heinous sexual abuse.

Types of Marital Rape

Rapes are broadly categorized into three parts:

Force only rape: It refers to when a husband only uses force or coercion to the degree of achieving sex. This type of sexual abuse is seen in cases where there is domestic violence, it is predominantly verbal.

Battering rapes: This kind of rape is the one in which rapes are combined with physical violence like beating. It is an outcome of psychological, verbal, emotional, economic, and physical abuse. However, psychology plays a crucial role in this because, in cases under this head, it has been seen that physical violence if done at an extreme level leads to violent sexual assault.

Obsessive Rape: In this category, mostly the person committing the crime is seen to be obsessed with the act of raping the abuser and seems addicted to sexual acts and such act is always violent. In other words, we can say that the person committing rape is a sadist.[1]

Is there any law on Marital Rape?

According to Section 375 of the Indian Penal Code

A man is said to commit “rape” if he—

 (a) Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or

 (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or

 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or

 (d) applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person.[2]

However, what seems to be missing here is the term ‘even after marriage’. If there would have been any mention of the term marriage, there would have been no need for a separate law for marital rape. This leads us clearly to the fact that there is no separate law or even a proper definition relating to marital rape in the Indian statutes. Further, it helps us deduce that India stands among those countries which have not criminalized marital rape. There is a total of 36 countries that have not criminalized marital rape and they are mostly underdeveloped and developing nations.[3]

Case Laws

The Supreme Court in Bodhisattwa Gautam v. Subhra Chakraborty[4]held-

rape is not an ordinary crime but a crime against human rights. Referring to Article 21 of the Constitution the court also said that it is a violation of fundamental rights of a person.

In the case of State of Karnataka v. Krishnappa[5], the Supreme Court held-

sex without consent will be taken as physical and sexual violence and sexual violence is not just a dehumanizing act but also infringes the right to privacy and also the sanctity of a woman.

In the Suchita Srivastava v. Chandigarh Administration[6], the Supreme Court equated-

Article 21 which contains the right to personal liberty, privacy, and bodily integrity, takes in its ambit the right to have a choice when it comes to indulgence in sexual intercourse.

What seems prevalent in all the cases mentioned above is that directly or indirectly one of the fundamental rights which is Article 21 is being violated. That has been pointed out by the Supreme Court through various case laws. In the majority of the judgment, the court has said the women have a right and a choice to scruple from any sexual activity which she feels agonizing, irrespective of their marital status. This leads us to an important message that comes out is that any kind of forced sexual/physical cohabitation is a violation of Article 21.

Where is the Confusion?

In Nimishbhai Bhartibhai Desai v. State of Gujarat 2018[7], the issue raised was whether forcing a wife to indulge in oral sex is a punishable offence under Section 376?

The Gujarat High Court while considering the matter drew attention to the fact that marital rape, which is not yet criminalized because of fear among lawmakers that it will sabotage the entire institution of marriage and there would be false cases lodged against men by their spouses. It was held that marital rape must be taken into the ambit of punishment for rape if a husband assaults his wife and coerces her into sexual intercourse, which means that it will have the same punishment as that of rape under a valid marriage.

However, in the recent case of RIT Foundation v. The Union of India[8], which came up before the Delhi High Court was being heard by Justice Rajiv Shakdher and Justice C. Hari Shankar, the court delivered a split verdict on the marital rape exception in the Indian Penal Code. It reserved the verdict over the case and wanted to quash the exemptions allowed to husbands through rape laws. The court was in a tug of war over the deletion of an exception of marital rape under Section 375 of IPC.

Soon after the Delhi High Court delivered a split verdict in the RIT Foundation case, there was a buzz and confusion about whether the former judgment be considered or the latter one or the matter must quickly and unambiguously be clarified by the Supreme Court without wasting time any further.

Why is marital rape not criminalized in India?

We know that Section 375 of the Indian Penal Code defines rape; however, it contains 2 exceptions as well.

  • Firstly, a medical procedure or intervention will not be considered rape and
  • secondly, sexual intercourse or sexual acts by a man with his own wife is not raped unless she is below the age of fifteen years.

Now, Exception 2 to Section 375 of IPC acts as a hurdle in criminalizing marital rape. This exception exempts un-consensual sexual intercourse by a husband over his wife below fifteen years of age thus creating a definition of “rape” but also immunizing acts from prosecution that do not fall under it. To put it straight, in the current provision, a wife is presumed to have already given consent to have sexual intercourse with her husband the day she ties knots with his husband. Marriage here infers that both the man and the woman have consented to sexual intercourse and it cannot be taken otherwise.

Another reason marital rape is not yet criminalized is because of the notion that the criminalization of the said act will attract false cases against men just like it is attracted under Section 498A of IPC that is related to physical or mental harassment of women is punishable.  Some people say that as marital rape is a form of domestic violence, it should be dealt with under the Protection of Women from Domestic Violence Act 2005 and so, there remains no reason to repeal Exception 2 to section 375 of IPC, deletion of which will automatically criminalize marital rape.

Conclusion

About 70% of women in India are victims of domestic violence[9] Marital rape is one such heinous abuse that falls under domestic violence. This merely eleven letter word is capable enough to rip apart a woman physically, mentally, and emotionally leaving behind irreparable marks upon her soul. There are a lot of chances that criminalizing an act will attract lots of false cases and unreliable claims, however, this should not be a reason that a woman loses her sexual autonomy after marriage.

Marital rape is a clear violation of Article 14 and Article 21 of the Constitution and therefore there is a need to criminalize such an act; certainly, after identifying all the loopholes it could possibly have and fixing them.


References

[1] Marital Rape Brochure by Indiana Coalition against Sexual Assault, Available Here

[2] Indian Penal Code, 1860, Available Here

[3] Need for the Criminalization of the Marital Rape in India, Available Here

[4] 1996 AIR 922, 1996 SCC (1) 490

[5] ILR 1994 KAR 89, 1993 (4) KarLJ 680

[6] (2009) 14 SCR 989, (2009) 9 SCC 1

[7] 2018 SCC OnLine Guj 732

[8] Writ Petition (C) NO. 284/2015

[9] “Crime in India” 2019, Available Here


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Author: Aayushi Tiwari

A Law Student and a lifetime humanitarian from the historically rich state, Bihar. Avid reader, writes to bring a difference and a public speaker to enlighten others.

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