ISSN : 2581-8465

Author : Akshay Shrivastava

2nd  Year, B.Com LL.B(Hons.)

Gujarat National Law University, Gandhinagar

Abstract:

India being a developing country has been working tenaciously on the path to eradicate various social evils, but it has failed to address a pandemic issue of marital rape. Marital rape can be defined as forceful intercourse or intercourse without consent by one partner with the other partner in a marriage.It is seen that in many cases the victim of marital rape is awoman, so it could be considered that the offence is somewhat related to women only. Marital rape not only affects the victim physically, but also causes mental trauma. Some people might think, why is it called marital rape even though the individuals are married. It is called marital rape because of the simple fact that marriage does not provide a license to the husband to have intercourse with his wife whenever and wherever he wants. Although, there are various laws in India, protecting the interests of women in a marriage, but a law which makes marital rape a punishable crime has not yet been made by our parliament. Marital rape has been recognised as a punishable crime in various nations and it is now time for India to make it a crime as well. It should also be ensured that these laws are duly implemented. Also, people need to step up and fight against such an immoral act in order to protect the women of our nation. Marital rape is still a crime which remains unheard, unspoken and unaccounted for.

Introduction

India as a country has made its mark in the field of development in different parts of the world. It has seen tremendous growth in every aspect but law. Known for its culture and civilisation, it finds itself behind many countries, when it comes to law. The loopholes or shortcomings in legal system, acts as a breeding ground for commission of crime. One of those parasites, eating up our democracy is marital rape or spousal rape. It is something which many people are not acquainted with. But it is not something which is very rare or queer. Many individuals are going through this situation, but few have the grit to come up and raise voice against it. Also, some individuals don’t get support from their peers and sometimes from the judicial system.

Marital rape is the forceful sexual intercourse without the consent or against the will of the individual by their spouse, often combined with threats of using force. It falls under the purview of domestic violence and sexual abuse. and misconduct. Though, it can be committed against a men or women, many studies have found that the victim in a number of the cases is women, so the issue of marital rape is more or less associated with women.One of the reasons that fuels the crime of marital rape is the growing difference between the two sexes and the dominance of male over the females. Women are always considered to be inferior than man.

Many people interpret the institution of marriage and its principles incorrectly and use it as a defence for raping their spouse. In the patriarchal society, whenever a voice is raised by the victim against marital rape, they are supressed not only by their in-laws and peers, but by their own families. Rather than supporting the victim, the society blames them. The male dominant society believes that after marriage the husband gets all the rights over his partner including the right to take her consent before intercourse. Also, Marital rape as a crime has hitherto not given due consideration in law. “The law does not punish rape within marriage if the woman is above fifteen years of age. Forced sexual intercourse is an offence only when the woman is living separately from her husband under judicial separation/custom. It must also be remembered that situations of marital rape occur within the confines of the home, and therefore there are often no witnesses to the crime.”[1]

Our society looks at women as a property. At one point she is the property of her father and after marriage she becomes the property of her spouse. Thus, she is made to suffer from various atrocities by her husband including sexual violence and misconduct. As explicitly stated by Katherine O’ Donnovan: “Its immunity from the purview of the criminal law is explained on the grounds that the female victim is a wife. This justification can be understood in the context of the dominant familial ideology and female sexuality which treats a wife as property and as having no sexual agency or decision making in sexual activity within the marital contract”.[2] It is deemed to be the conjugal right of the husband in a matrimonial bond to have all the rights over his wife and he is allowed to exercise those rights wherever and whenever he wishes to.This provides the husband with exemption from the crime of committing rape with his wife.

The aftermath of marital rape is that it affects the victim physically as well as mentally. The trauma caused to victim by this thing sometimes leads to depression and other mental disorder. The physical effects of marital rape include injuries to private organs,bruising, torn muscles, and vomiting. Other consequences include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV. “Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, and problems in establishing trusting relationships, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and emotional pain for years after the violence.”[3] Marital rape is very difficult to deal, as the person raping her is someone she knows, trusts and loves. These women are not only raped once but many times by their husband. “They experience not only vaginal rape, but also oral and anal rape. Husbands often rape their wives when they are asleep, or use coercion, verbal threats, physical violence, or weapons to force their wives into having non-consensual sex with them. Despite underreporting, marital rape unquestionably has an enormous impact on the lives of women who experience it. Marital rape generally goes unreported due to family loyalty or fear of husband, financial dependence on husband, safeguarding the future of their children, or because of limited laws that protect the victims of marital rape.”[4]

Its effect ismore severe and harsh than in case of rape by a stranger, as the victim has to live with the person who has caused her such agony. The victim does not raisevoice against her husband, as after marriage she is dependent on her husband for her sustenance. She does not have a choice as her own family does not support her to fight against marital rape and often convince her to live with her husband and if she does not listen to them, they shut their door on her face. Thus, in this kind of situation she is only left with one option, that is to live with her husband and continue to bear the pain caused through his acts.

A woman has sole right over her body and without her consent no one can infringe these rights. Even their husband does not have the power to take away her bodily right after marriage. If these rights are infringed. Marital rape does not only infringe her bodily rights but also affects her dignity. She suffers from deep mental trauma as an outcome of marital rape. Now the marriage moves on fear and not love.

The victims another right that is right to privacy is also violated due to marital rape. Right to privacy though not specifically mentioned in the constitution, falls under article 21. And in many of its decisions, the Supreme Court of India has highlighted that right to privacy is a part of right to life and personal liberty under article 21. In the case, Francis Coralie vs. Union Territory of Delhi[5], Justice PN Bhagwati has held that Right to live is not restricted to mere animal existence, it means something more than just physical survival. Exemption of marital rape is a violation of right to life and personal liberty and right to live with human dignity. Supreme court have recognized this right and it is constitutionally protected under article 21. This right also includes the right to be left alone. Thus, forced sexual intercourse or intercourse without consent of the wife, infringes her right to privacy, which further triggers article 21 which is a fundamental right of each and every citizen. Hence, the defence provided to these perpetrators by way of marriage for raping their wives is against the right to privacy as free consent and will is missing.

A woman has a right to be treated with respect and to exercise control over her body. And these rights can’t be taken away by anyone, including her husband, after her marriage. The Supreme Court in the case of State of Maharashtra v. Madhkar Narayan[6] has held that every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as in when he wished or pleased.                      

Also, in the case of Vishakha v. State of Rajasthan[7], the Supreme Court extended the right of privacy to workplaces. This case opened the doors for various interpretation by the court to the right to privacy.And various aspects of life were included and covered under this right.

In one of the recent judgement in the case, Puttaswamy v Union of India, related to right to privacy, “Justice Nariman, in his opinion ruled that ‘right of personal choice’ forms the bedrock of right to privacy, the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential.  And this development can only be if an individual has autonomy over fundamental personal choices. Justice Kaul reflected the opinions of the other judges, by also emphasizing choice. He stated: Privacy is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so and at the end it is an individual’s choice as to who enters his house, how he lives and in what relationship.”[8]Thus, this judgement recognized right to privacy as a fundamental right under article 21 of the Indian Constitution and further expanded its ambit to different areas. 

Therefore, analogous to this, there is a right to privacy in a marriage to enter into sexual relation with the consent of the partner.Privacy being the supreme right of an individual, it cannot be taken away even by the government. Being in a marital relationship does not mean the transfer of all the rights of a wife to her husband. It is deemed in our Indian society that after marriage, all the decisions related to women are taken and must be taken by their respective husbands. Thus, our societal framework in one way or the other help and bolster husbands to exploit and infringe the rights of women and acts as a bulwark to safeguard them from any such uncertainty arising out from violation of the abovementioned rights.

Indian Constitution provides for right to equality and it states 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”[9]and “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”[10]Contrary to these, Section 375 of Indian Penal Code, which defines the conditions under which an act would be rendered to be rape, has an exception and it states, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,”[11] and it clearly discriminate other women who are above fifteen years of age and this violates their right to equality before law.

So, according to this section, if a woman is married and is above the age of fifteen years, it is deemed under law that she cannot be raped and thus indirectly gives their husbands the authority to subjugate them. Since, section 375 clearly differentiate between women below fifteen years of age and women above fifteen years of age, thus, it violates article 14 as it comes under discrimination on the basis of age within the same gender.

Also, Article 51A (e) of the Indian Constitution states that it is the fundamental duty of each and every citizen, “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”[12] Marital rape being one of those derogatory practice, lowers the dignity of a woman and thus,Section 375 of Indian Penal Code which has an exception,which differentiate rape on the basis of age in a marriage is unreasonable and arbitrary. Though, not being a fundamental right and being a fundamental duty, it is not legally enforceable. Therefore, its violation is not a punishable offence under any law in India.

The loopholes and unavailability of laws related to marital rape leads to increased rate of crimes against women. Due to very lenient and unstructured laws related to rape within a marriage, many women are suffering from mental as well as physical agony. Section 376B of the Indian Penal Code, 1860 says that “whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”[13]

One of the cases in which the victim was not provided any remedy because the conditions under the abovementioned sections were not fulfilled is Sree Kumar vs. Pearly Karun[14], in which Kerala High Court observed that because the wife was not living separately from her husband under a decree of separation or under any custom or usage, even if she is subject to sexual intercourse by her husband against her will and without her consent, offence under Section 376A, IPC will not be attracted.

Thus, limiting these remedies to only those women who are divorced or living separately under a decree from the court and not providing these remedies to a myriad of other victims who does not meet the abovementioned conditions. Therefore, this law fails to provide safeguard to many other women, who have been suffering from a long time and are not able to find a suitable law and a redressal forum for fighting against marital rape and consequently leading to delivery of justice.

There are other various laws in the Indian penal code, 1860 which defines rape, but they are not fully justified as they do not provide protection to women from any age group. Section 375 of Indian Penal Code, 1860, states that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[15] It clearly implies that if the age of a women is more than fifteen years than she could not be raped, which is totally illogical and absurd. Moreover, according to Hindu Marriage Act, 1955, “the rightful age for a female to marriage is 18 years.”[16] Thus, this was in conflict with the other laws provided in the Indian Penal Code, 1860, but in a recent case the Apex court held that Exception to Section 375 IPC is arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India and said that sexual intercourse with minor (below 18 years)  wife is rape.[17]

Marital rape is a heinous crime which affects women in our country at large. Our constitution provides its citizen the right to life and liberty, which also include right to privacy and these rights are violated in case of marital rape. One of the arguments against criminalizing marital rape is that it invades the marital privacy of a person. But marital privacy is only provided for those acts to which both the husband and the wife agrees and give their consent; it is not provided to aid sexual abuse.

Marital rape is a common thing and it is not something that is bizarre. A number of cases related to marital rape goes unreported as the victim does not get support from their peers, family members and the law. Many victims are harassed and supressed by their in-laws in order to stop them from raising a voice against marital rape. Consent being one of the most important things in a sexual relationship is not given due consideration by our constitution. “Justice Leila Sethelucidates this in her book, Talking of Justice, Peoples Rights in Modern India, saying, ‘A woman’s autonomy and bodily integrity are concepts that have developed over the years, thus making rape an offence unless there is true consent.’”[18] And marriage does not in any manner amount to consent to sexual intercourse with the wife.

There should be no categorization of marital rape and no differentiation on any basis whatsoever. Each and every individual must be treated equally, irrespective of their age. There must be a single and uniform law and procedure for redressing the complaints of the victims.

Also, marital rape causes mental and physical trauma to the victim. She has to live with the person who has raped her and who will continue to rape her in the future. Due to this she also gets detached from her children as she’s going through a lot of stress. At times she does not have any option other than living with rapist as she is dependent on him for her livelihood. The United Nations has also recommended India to make it a criminal offence for a man to rape his wife. But, no law as such has been made till date by the parliament.

We need to educate the society at large about this crime, otherwise the main objective behind criminalizing marital rape cannot be achieved. Awareness campaign and street plays could be organised for making people aware of their rights and their duties. Our society should stop stigmatizing the victim and should support her and help her in living a better life. The most obvious reason for marital rape is the desire of men to show their superiority over women. Thus, men should also be educated about the effects and consequences of forceful sexual intercourse. Their attitude towards women needs to be changed; there privacy and dignity must be maintained.

It is argued that criminalising marital rape would lead to breaking of many marriages as it willincrease the divorce rate. But, after being raped by their husband, the wife no more feels safe and protected. The trust on which a marriage is based is shattered into pieces, when a woman is subjected to forced sexual intercourse. “The argument by the Legislature that criminalizing marital rape will weaken the institution of Marriage is against the principles of justice, equity and good conscience. It is said that a strong building is made on a good foundation. What is the need to save such institution which is based on such kind of heinous crime?? Isn’t it denying justice to women who are oppressed and cannot raise their voice against their husband? The questions still remain unanswered.”[19]

Marital rape must be criminalised by making it an offence under the Indian Penal Code by the Parliament. It should be treated as rape only, and the wrongdoer must be given the same punishment as given in case of rape under section 376 of the Indian Penal Code. The laws related to age of giving consent to sexual intercourse and age of marriage should be amended so that both of these does not contradict each other.

Many developed, developing and underdeveloped countries who earlier did not have any laws related to marital rape have made it a punishable crime in the recent time. But, still in a country like ours, which is excelling in the each and every field the laws for protecting its women from various wrongdoings are not in place. A law which is concrete and consistent in every circumstance would be suffice in case of marital rape. The formulation of a law only would not help in subsiding crime against women. But the paramount factor would be the implementation of these formulated laws.

As Leonardo da Vinci says, “He who does not stop evil, commands it to be done.” So, it is up to us that we want to save our women from such adversities or to be the part of the wrongdoing.


[1]Law Teacher, Marital rape, January 2, 2019, available athttps://www.lawteacher.net/free-law-essays/family-law/marital-rape.php (Last visited onJanuary 2,2019).

[2]Katherine O’ Donnovan,Family Law Matters, Vol.1 (Pluto Press, 1993).

[3]Law Teacher, Marital rape, January 3, 2019, available at https://www.lawteacher.net/free-law-essays/family-law/marital-rape.php (Last visited on January 3, 2019).

[4]Lawctopus,Marital Rape,January 5, 2019, available at https://www.lawctopus.com/academike/marital-rape/ (Last visited on January 3, 2019). 

[5]Francis Coralie v. Union Territory of Delhi,1978 1 SCC 248.

[6]State of Maharashtra v. Madhkar Narayan, (1991) 1 SCC 57.

[7]Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

[8]Oxford Human Rights Hub, What the Right To Privacy Judgment Means for India’s Marital Rape Exception, January 11, 2019, available at https://ohrh.law.ox.ac.uk/what-the-right-to-privacy-judgment-means-for-indias-marital-rape-exception/ (Last visited on January 3, 2019). 

[9]The Constitution of India, 1950, Art. 14.

[10]The Constitution of India, 1950, Art. 15.

[11]The Indian Penal Code, 1860, §375.

[12]The Constitution of India, 1950, Art. 51A.

[13]The Indian Penal Code, 1860, §376B.

[14]Sree Kumar v. Pearly Karun, 1999 (2) ALT Cri 77.

[15]The Indian Penal Code, 1860, § 375.

[16]The Hindu Marriage Act, 1955, § 5(c)(iii).                                                                                                     

[17] Independent Thought v. Union of India, 2017 10 SCC 800.

[18]The Better India, Dear Supreme Court, Here’s Why Marital Rape Should Be Criminalised, January 17, 2019, available at https://www.thebetterindia.com (Last visited on January17,2019).

[19]IPleaders, Marital Rape- A Stigma on the Institution of Marriage in India, January 22, 2019, available at https://blog.ipleaders.in/marital-rape-a-stigma-on-the-institution-of-marriage-in-india- (Last visited on January 22, 2019).

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