CRIMINALIZING MARITAL RAPE

WHAT IS MARITAL RAPE?

Marital Rape implies to unsolicited intercourse by a man with his wife misappropriated by force, intimidation of force, or bodily violence, or when she is unable to give consent. It is a non-consensual act of violent distortion by a husband against the wife where she is physically and sexually abused. Marital Rape alludes to the consummation between a man and a woman, who is lawfully acknowledged as a couple, where the woman does not give assent for such intercourse. Marriage, as examined prior is an irreproachable bond in which the man and a woman promise to live respectively in bliss just as in torment by welcome the blemishes of one another.

Despite the fact that marital rights are the most widely recognized and offensive type of masochism in the Indian culture, it is very much taken cover behind the iron drape of marriage. While the legal definition shifts, marital rape can be characterized as any undesirable intercourse or entrance misappropriated (vaginal, butt-centric, or oral) acquired forcibly, the danger of power, or when the spouse cannot assent. Regardless of the commonness of marital rape, this issue has gotten moderately little consideration from social scientists, specialists, the criminal justice system, and the bigger society all in all. The term rape has been imitated from the word rapio, which means to seize.

Marital Rape otherwise called ‘Spousal Rape’ or ‘Inmate Partner assault’ is an assault submitted by one companion against the other.[1] To comprehend the difficulties of Marital Rape one should initially comprehend the distinction between Rape and Marital Rape as both the terms have various implications and can’t be utilized reciprocally.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in

England, during the 1600s. He wrote 

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the

husband, whom she cannot retract.”

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. It is a conscious process of intimidation and assertion of the superiority of men over women.[2]

India, even after being advancing with a pace into the modern-day timeline haven’t criminalised marital rape. Despite amendments, law commissions and new legislation, one of the most humiliating and debilitating acts is not an offence in India.

Section 375, Indian Penal Code has provisions to rape in India, its exception clause- “Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape” reverberate very ancient sentiments.

VIOLATION OF FUNDAMENTAL RIGHTS

Marital rape is an extensive problem for a woman that has occurred for centuries all over the world. Regardless of this fact, marital rape has been mainly ignored in the rape and domestic violence literature’s, this problem has received comparatively little attention from social scientists, legal practitioners, the criminal justice system, and the society as a whole but after examining the need for reforms in the legal system regarding the punishment of various crimes against women and especially married women, various countries have recognized this as a crime with severe penalties.

At the very outset, a law can only stand if it is in consonance with the Indian Constitution. The dereliction in perceiving Marital Rape as criminal offence prima facie violates the fundamental rights of a woman.

Article 14[3] of the Indian Constitution ensures the Right to Equality as a fundamental right of citizens. The Marital Rape Exception proves to be unconstitutional as contravenes the Right to Equality. The exception marks a clear dichotomy between women as wives and non-wives which ascertains as to who can bring criminal charges against a man for rape. In a male-dominant or patriarchal society of India any law concerning rights of women, being a right accessible to fewer section of women or the whole female population is exceedingly difficult and challenging to be reformed. Article 14 of Indian Constitution expresses ‘Equality before law’ but it collapses on its own provision when question comes about protection of women rights. Indian Government and the Judicial system conceal their failure to perform functions under the blanket of Customs i.e. Marriage is a sacrament. The Supreme Court in its interpretation of Article 14 held that, the classification made under this article must pass the ‘test of reasonableness’ that can only be achieved if the classification has a rational nexus to the object that the legislation in question seeks to achieve.[4] However, this interpretation when kept in juxtaposition with Section 375 implies that the entire rationale behind Section 375 stands vanquished when the Marital Rape Exception is upheld. This is thus interpreted because the solitary intention of Section 375 is to protect the integrity and dignity of women from sexual offenders and the purpose of this section is not performed when marital rape is not acknowledged by the eyes of law.

The Indian Constitution provides Right to Life as a fundamental right to its citizens. Article 21[5] states that “No person shall be denied of his life and personal liberty except according to the procedure established by law”. In Maneka Gandhi v. Union of India,[6] the Supreme Court

perspicuously stated, “Article 21, is not merely a physical right but it also includes within its ambit, the right to live with human dignity”. The Exception 2 of Section 375 fails to provide women the right to live with human dignity as husbands are not discouraged to engage in non-consensual sexual acts with their wives. Such iniquitous acts of the husbands take a toll on the mental health of a woman thus negating her life of dignity.

In the wake of the Maneka Gandhi judgment, the Supreme Court has incorporated various other rights under Right to Life which consists of right to health, right to a safe environment, right to safe living conditions and right to be informed among other rights. One of the major establishments was made by the Supreme Court in the judgment of Justice K.S. Puttaswamy v. Union of India and others[7], in which the Honourable Court held privacy to be a fundamental right under Article 21. Right to Privacy thus entailed, “Decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. This again directs to the infringement of a woman’s right of not being able to make intimate decisions for herself. In Bodhisattwa Gautam v. Subhra Chakraborty[8], the Supreme Court was crystal clear in saying, “Rape is a crime against basic human rights and a violation of the victims’ most cherished of fundamental rights, namely, the right to life enshrined under Article 21 of the Constitution”. Yet the Exception negates this very pronouncement by not recognizing marital rape.[9]

CONCLUSION

Marital Rape stands to be one of the most horrific forms of crimes against women in a family. Women mostly choose not to come up with their sufferings because of the patriarchal subjugation and the lack of facilities for them to be economically independent. The ever-existing patriarchy embedded in the minds of the society pays no heed to the abuse faced by women. This mindset proves to be crucial in letting the law makers provide plethora of unreasonable defences to not provide any penalties for this crime. Rape is not simply a physical ambush; however, it is dangerous of the entire persona of the person in question. The law did not conceptualize it as an offense against the individual of the woman, one that pulverizes her opportunity; rather, it considered rape as an instrument for defending a man’s property from the sexual conflicts of other men. Along these lines, the demonstration of rape inside marriage was not perceived as an offense as a woman was viewed as the property of the spouse, and a man could not be seen to abuse his own property.

Marital rape can be observed in families of all types irrespective social class, level of education, economic reasons and so on. Women in rural areas lack the considerably basic awareness that such an act is a wrongful one and are forced to believe that it is a part and parcel of marriage. This is another reason why even the research data cannot be fully relied upon because of the untold stories of these unaware women.

While the Marital Rape Exception continues to be central to the struggle faced by the supporters and feminist activists but problems such as gathering reliable evidence especially in cases where there are no physical injuries and proving that consent of the wife was not taken, still exists. Relying on the sole testimony of the woman with no concrete evidence or where evidence is negligible leads to the rise of false allegations against men to which there exists no damage control. 


[1] Marital Rape, (July 31,2020) http://rapeinfo.wordpress.com/2008/05/25/marital-rape/

[2] #MoreThanJustBrides, Blog, (July 31, 2020) http://www.marthafarrellfoundation.org/blog/morethanjustbrides/

[3] INDIA CONST. art. 14.

[4] Saurabh Chaudhari v. Union of India (2004) 5 SCC 618.

[5] INDIA CONST. art. 21.

[6] AIR (1978) SC 597.

[7] (2015) 10 SCC 92.

[8] (1996) 1 SCC 490.

[9] N. Tandon & N. Oberoi, Marital Rape — A Question of Redefinition, Lawyer’s Collective, Mar 2000, 24.