Marital Rape by Meenakshi Gupta

By | May 19, 2020
Marital Rape

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Marital Rape by Meenakshi Gupta | Overview

Introduction

Indian Penal Code 1860, section 375 defines rape as a heinous crime against women’s gender. But marital rape is not included in this section and treated as an exception in this Act.

Rape is one of the most habitual crimes against women in Indian society. It literally means any kind of sexual penetration or intercourse without the other person’s consent or acceptance. It has been stated in a report that in India, the rape took place every 20 minutes with women. According to Oxford Dictionaries, Rape means, “to force someone to have sex when they are unwilling, using violence or threatening behaviour”.[i]

Marital Rape

Since long time rape has been considered a major problem all over the world. A basic meaning of marital rape is that the two-person are in a legal matrimonial relationship or there is a legal union between the two of them and the wife is forced by her husband to do sexual intercourse without her consent or permission. We can also give it other names like sexual harassment or sexual pressure on the spouse.

As marriage in India especially is considered to be the most sacred, pure, and one of the most respected institutions of our culture. It is almost impossible for the women to tell the society about the rape committed by his husband as nobody would stand there for her support due to the fright of society that “what will people say”. It is also believed here that with the consent of the matrimonial relationship by the women she has also given the consent of sexual intercourse to her husband. This may be considered as some of the major reasons for making an exception under section 375 of IPC.

Exception 2 of Section 375 of IPC

Exception 2 of section 375 explains that sexual intercourse or sexual acts by a man with his own wife without her consent if the wife not being under fifteen years of age is not regarded as rape. This exception clearly states that sexual intercourse by a husband with his wife who is above 15 years does not amount to rape. Hence marital rape is not considered as an offence under IPC. Yes, the law tells women that if they are married, then it would be automatically concluded that they have given consent to their spouses to have sexual intercourse with them whenever they want or need. It is evident that for a long time there is a concept of using women as property in society.

This provision was declared highly wrong or evil all over India. The 172nd Law Commission took into consideration the need for an hour to change the law regarding marital rape but to avoid excessive intrusion with the matrimonial relationship it did not criminalize the marital rape as a whole.

The report of this Commission was made on the basis of the case of Sakshi v. Union of India[ii]. It was pleaded in the case that sexual acts by husband with his own wife without her consent should be considered as an offence under Section 375 of IPC. But the commission only recommended for reducing the age of wife considered under the exception 2 of section 375. This is mainly because of factors like illiteracy, religious ideology, customs, old practices, and the mindset of Indian society to treat the marriage as a holy sacrament.

Marital Rape and Indian Laws Scenario

India is one of the thirty-six countries that have not considered marital rape as an offence. Enactments in regards to marital rape in India are non-existent or dependant on the understanding by courts only. There is no particular laws or punishment on this offence.

Justice J.S. Verma Committee while evaluating the existing rape Laws recommended to include the Marital Rape also as a crime under Section 375 of IPC[iii]. The committee looked into the C.R. v. UK [iv]case in which the European Commission on Human Rights states that the “rapist must be considered as a rapist and rape must be considered as rape in whichever manner or form it takes place regardless of his relationship with the victim”. But it neither can illegalise marital rape nor gave a solution to adult married women (above 15 years) in case of marital rape. Thus, Indian Law permits the husband to commit rape with his wife.

Domestic Violence Act 2005 and Marital Rape

Under the Protection of Women from Domestic Violence Act, 2005, women can go to the court and get a legal separation from her husband in case of marital rape because Explanation – I provided for Section 3 of this Act states that sexual assault shall include any conduct of sexual nature which demean, embarrasses or affects the dignity of woman. So, this kind of rape obviously diminishes the dignity of the women but living separately from her husband is not enough as the victim would always demand an equal punishment for the offence committed against her.

Fundamental Rights and their violation

Article 21 of the Constitution of India talks about the right to live with dignity and marital rape obviously violates one of the fundamental rights of women to live with dignity. There is a leading case The Chairman Railway Board v. Chandrima Das [v]that rape is not merely an offence under IPC against an individual but it is a crime against the society. So this problem can not be vanished just by changing the mind of an individual but there is a need to change the mindset of the society as a whole as it would be impossible for the women to live with the dignity after such pain and agony she is going through in her own matrimonial home.

Another fundamental right i.e. Article 14 one of the main article of the Constitution explains that “the State shall not deny to any person equality before the law or equal protection of laws within the territory of India[vi]”. But exception 2 of Section 375 clearly violates this article in a sense that it discriminates with a wife when it comes to protection from marital rape if she is not below the age of 15 years. This offence is solely committed against the women and it is an infringement of her rights.

Suggestions and Conclusion

Marital rape is so dreadful for a woman since she needs to remain with her assailant after all this. There is an immediate need to criminalise the offence of marital rape. Rape is an offence no matter in which manner it takes place and the punishment for these offences should be the same no matter what kind of relationship the victim has with the accused.

It is so contrary that the law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non—consensual sexual intercourse with his wife who is just 15 years of age and it is so inappropriate for this kind of large society as a major part of this country is not well-educated and they can’t fight back against this where the patriarchy is heading towards the top.

The cases of marital rape are increasing because of a mistaken belief about the concept of marital life. There is also a need to provide adequate education to the society about the crime, as it would only be possible if the society dares the widespread myth that rape by husband comes without any consequences. This has to end soon.


References

[i] http://www.oxforddictionaries.com/definition/english/rape

[ii] 2004 (5) SCC 518

[iii] K.D. Gaur Textbook of Indian Penal code (4th Edition 2009)

[iv] C.R. v UK Publ. ECHR

[v] (2000)  2 SCC 465

[vi] Constitution, Article 14


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  • Bhavya Singh says:

    Very informative article!👏👏

  • Komal says:

    Nice article!… But a question still remains there… that how the “will” would be proved… as it may be present at a time and absent for the another time. Additionally, what are the measures that could be taken for the prevention of fake charges?

    • Meenakshi Gupta says:

      Thanks. That’s the reason it is getting so difficult to make proper laws on this. As it would definitely accelerate the fake charges. But we can’t deny the fact that marital rape is a serious offence.