LEGALITY OF MARITAL RAPE IN INDIA

INTRODUCTION:

 Marriage is not an institution but it is the ceremony of two persons living a life together and under this situation, protecting the interest of the parties to marriage is very important. Rape is a heinous crime without the consent of a man and involves dishonest intention of the perpetuator. Marital rape is forceful sex by spouse with his better half without the permission. It leads to a form of domestic violence and sexual abuse which has a serious and enduring effects on women. Till date marital rape is not an offence in India. The right to live with human dignity is a fundamental right according to Article 21 of the Indian Constitution and here this right is infringed in some cases of women.

There are three kinds of Marital rape identified by intellectual persons which are prevailing in society :-

• Battering Rape:   In battering rapes, women experience both sexual and inhuman physical torture in different ways. Some are thrashed during the sexual activity or rape where husband forces his wife to have sex against her consent. The larger part of marital rape victims falls under this type of category.
• Force-only Rape:-   In this type of rape, husbands only use the amount of force, strength or excess power to their wives. Thus, the physical attack happens after the wife has refused for sexual intercourse.
• Obsessive Rape:-   This rape includes the assault in awkward and rebellious manner and are often physically violent.

Battering rape is the most common type of marital rape. 48% of cases involves women experiencing battering rape. Force only rape is the second type of Marital Rape. The physical effects of marital rape include injuries to private parts, tenderness, cutting or tearing the vaginal walls, wound, fatigue and vomiting. They live their life after marriage under the constant terror of getting pain every now and then.

Women may experience exploitation and abuse after marriage in various forms, including:

1. Domestic Violence: Physical, emotional or sexual abuse by their spouse or in-laws.
2. Emotional Manipulation: Gaslighting, constant criticism or control.
3. Financial Exploitation: Restrictions on financial autonomy or being forced to hand over things.
4. Sexual Exploitation: Coercion, manipulation or forced sexual acts.
5. Reproductive Abuse: Forced pregnancy, birth control sabotage or denial of reproductive rights.
6. Economic Abuse: Restrictions on education, employment or financial decision making.
7. Social Isolation: Control over social connections, phone or online activities.
8. Psychological Abuse: Constant belittling, intimidation or threats.
9. Legal Abuse: Using legal systems to gain power or control.
10. Cultural or Religious Exploitation: Using cultural or religious norms to justify abuse or control. 

 Sec 375 of IPC,1860 mentions an exception clause that marital rape is viewed as a rape just if the spouse is under 15 years of age and the gravity of punishment is not harsh. Again, in the new law of BNS,2024 according to exception under sec 63 marital rape is rape if the spouse is under 18 years of age. Thus, the age gap has only changed but the punishment is still mild and becomes a subject of heavy debate and criticism.

The consent before engaging in sexual activity must be willing and the person giving consent should be capable of doing it. Sec 114A of Evidence Act states that if a woman claims that she has been raped and by evidence it proved that her consent was absent, then the court will assume it been raped. But the question lies that who would bear the burden of proof as there is no CCTV footage, hidden camera etc. to proof that the woman was raped or not. Hence the burden of proof becomes difficult to apply in cases of marital rape.

Just because woman was considered property in ancient period doesn’t mean that a man can do whatever he wanted with his property. The word “NO” carries a huge weight as every woman including a sex worker has power and liberty to decline any man who urges to have sexual intercourse if it is against her choice. But question arise that why this right is not available to a married woman. Women’s rights activists and organizations have advocated for criminalization of marital rape emphasizing the importance of consent in all sexual relationships.

The legal framework regarding marital rape is complex and varies by jurisdiction. In India the Supreme Court has addressed the issue in several judgements. The Protection of Woman Act, 2005 considered marital rape as a local violence. Under this a woman can seek to the court and get legal partition from her husband for marital rape. However, the issue of marital rape remains a topic of debate in India, with some arguing that it should be explicitly criminalize, while others believe that existing laws are sufficient to protect married woman from sexual violence.

• One notable case is the 2017 judgement in Independent Thought v. Union of India, where the Supreme Court held that sexual intercourse with a minor wife (below 18 years) constitutes rape, regardless of marriage. This ruling criminalized sexual intercourse with minor wives and was seen as a step forward in protecting girl’s rights.
• Another significant is the 2019 judgement in Justice K.S. Putta swamy v. Union of India, the Supreme Court discussed the concept of marital rape and its implications on privacy and bodily autonomy. While the court didn’t explicitly criminalize marital rape, it acknowledged the importance of consent and autonomy in sexual relationships.
• In Chairman Railway Board v. Chandrima Das, the Supreme Court not just only held rape as a mere offence under IPC but also a crime against the society.
• In Maharashtra v. Madhukar Narayan, the Supreme Court has held that every woman has her sexual privacy and it is not open for every man to violate it whenever he wished.
• One in every three women in India between the age of 15 and 49, stated that they had experienced some form of violence from their spouses as per the latest NHFS Data. Nearly 80% woman reported their current husband as perpetrators and 9% reported their former husband as perpetrators.
•  The bench in Nimesh bhai Bharat bhai Desai v. State of Gujarat, stated that that wife doesn’t have legal right to sue against her husband for offence of rape as by marriage a woman gives implied consent to her husband to have sex anytime he want. The law must uphold the bodily power of woman despite of their marital status.
• In the case of Karnataka v. Krishnappa, the Supreme Court held that sexual violence is an immoral act of the right to privacy and sacredness of woman.

CONCLUSION:

However, the issue of marital rape remained unresolved as the Supreme Court clarified it but didn’t comment on this. For example, Art. 14 of Indian Constitution guarantees equality before law and equal protection of law for every citizen. But the concept of marital rape discriminates with a wife when it comes to protection from it. It is ridiculous to say that a husband cannot be prosecuted for raping his wife as consent to marriage pre supposes consent to sexual intercourse. The fight to criminalize marital rape in India then is not just about changing the law on paper. It is about attacking the age-old mindset that still views a woman as husband’s property and not as an individual as her own agency. It is about fighting against this notion of marital sanctity that is based on the subjugation of women. It is also about challenging this larger rape culture that denies women’s basic rights, Respect and bodily autonomy. 

Here are some additional FAQs about the Marital Rape in India —

Q1. What is Marital Rape?

Ans: Marital rape also known as spousal rape is a sexual intercourse without consent between a husband and wife.

Q2. Is Marital rape a crime in India?

Ans: Marital rape is not explicitly criminalized in India, but the Supreme Court has recognizes it as a violation of a women’s rights.

Q3. Can a husband be charged with rape if his wife consents to sex?

Ans: No, if the wife has given consent, it is not considered rape.

Q4. Can a woman file a case against her husband for marital rape, even if they are still married?

Ans. Yes, a woman can file a case against her husband for marital rape, even if they are still married.

Q5. What are the challenges in proving marital rape in India?

Ans. Proving marital rape can be challenging due to societal stigma, lack of evidence and the assumption that marriage implies consent.

Q6. How does marital rape affect mental health?

Ans. Marital rape can lead to anxiety, depression, PTSD and other mental health issues due to trauma and betrayal.

Q7. Are there any specific laws or provisions for marital rape in India?

Ans. While marital rape is not explicitly criminalized, sections 376 i.e Rape and 498(A) i.e Cruelty of the IPC may be applied.

Q8. Is marital rape considered a violation of human rights?

Ans. Yes, marital rape is considered a violation of human right to bodily autonomy, privacy and dignity.

Q9. What if the wife is unable to give consent due to disability?

Ans. If the wife is unable to give consent due to incapacitation, it can e considered rape.

Q10. Can a husband’s defence be that his wife “consented” to sex?

Ans. Not always, the court may consider factors like coercion, manipulation or lack of genuine consent.

Q11. Can a wife file a police complaint against her husband for marital rape?

Ans. While marital rape is not explicitly criminalized, a wife can file a complaint under other provisions of the Indian Penal Code, such as “cruelty” or “sexual harassment”.

Q12. Is marital rape a ground for divorce?

Ans. Yes, in some cases a marital rape can be considered a ground for divorce.

Q13. Can a husband be prosecuted for marital rape if wife doesn’t report it?

Ans. No, prosecution typically requires the wife to file a complaint.

Q14. How common is marital rape in India?

Ans. Unfortunately, marital rape is underreported, making it difficult to determine its prevalence. 

Q15. What are the resources available for survivors of marital rape in India?

Ans. Organizations like the National Commission for Women (NCW) and the National Sexual Assault Hotline (1-800-656-HOPE(4673)) provide support and resources.

Author:   RUPSA MAJUMDER, STUDENT OF B.A.LLB HONS. DEPARTMENT OF LAW, HAZRA (CALCUTTA UNIVERSITY)