Author : Palak Luthra , a 2nd year BA LLB student at IILM college of law ,greater noida.
ABSTRACT
Marital rape, where one spouse forcing the other into un-consented sex within a marriage is known as marital rape, and it seriously undermines the victim’s sense of safety, dignity, and autonomy. The necessity to decriminalise marital rape is examined in this article, which highlights how the current legal exemption hurts people, particularly women, by depriving them of the freedom to live without fear or violence. The law is starting to acknowledge the rights of individuals in marriage, as demonstrated by the analysis of significant instances such as Independent Thought v. Union of India (2017). The essay offers insights for India by highlighting the ways in which other nations have dealt with this problem. In order to safeguard all parties involved in a marriage and guarantee that it is a space of respect for one another, it ultimately advocates for legal changes. In the end, it urges legislative changes to safeguard all partners in a marriage and guarantee that it is a space of trust and respect rather than abuse or dominance.
INTRODUCTION
Marital rape is a violation that is highly painful for millions of women worldwide and is often hidden in the shadows of society. It simply refers to marital non-consensual sexual behaviour, which many people may find difficult to discuss due to cultural norms or social pressures. But at its core, marital rape is a flagrant violation of both personal freedom and human dignity. The idea that marriage is a partnership based on equality, respect, and consent is questioned.
In India, the subject of marital rape remains contentious. Even though marital rape is becoming recognised as a serious crime by the international community, India still does not have explicit legislation that treat it as a crime with penalties. The existing legal system nevertheless protects marriage in a way that mostly disregards consent. Because of this, a lot of homes now accept this type of violence, which is often suppressed by social stigma.
The severity and intricacy of marital rape are reflected in its legal, social, and constitutional standing. Women are not given enough protection in the judicial system since non-consensual marital behaviours are not given special attention. Because patriarchal beliefs are socially normalised, the crime’s significance is often minimised, and it remains unseen due to cultural silence. India has violated international human rights norms by refusing to recognise marital rape in line with its constitution, which emphasises the need for legislative reform that upholds the rights and dignity of all people.
DEFINITION OF RAPE AND RELATED LEGAL PROVISIONS
The word “rape” comes from the Latin verb rapere, which means “to seize” or “take by force.” Although term was first used to describe the abduction of women, it has since come to represent something far more heinous: forced sexual acts. Nowadays, rape is not just considered a physical assault but also a grave breach of an individual’s autonomy, dignity, and right to feel safe in their own body.
Rape in India is defined in Section 375 of the Indian Penal Code (IPC). It lists a number of circumstances in which having sex is deemed rape, such as:
- When it takes place without the woman’s permission.
- When it happens without her consent.
- When coercion, threats, or deception are used to coerce it.
- If the lady is unable to comprehend what is happening, is intoxicated, or is unconscious.
- Whether or not the lady consents, statutory rape occurs if she is younger than eighteen.
Recognising the full range of what can be a violation, the law also considers other types of sexual abuse, such as oral sex and penetration with objects, to constitute acts of rape.
PUNISHMENT FOR RAPE UNDER INDIAN LAW
Rape is taken very seriously by Indian law, which enforces severe punishments to punish perpetrators and discourage others.
- Section 376 of the Indian Penal Code stipulates the basic punishment for rape, which consists of a fine and seven to ten years in prison.
- Aggravated Cases (Section 376(2)): The punishment for rape under certain aggravating conditions, such as the victim being a minor or the perpetrator being in a position of authority, can range from 20 years to life in prison, or in severe cases, the death sentence.
- Gang Rape (Section 376D): All participants in a rape may be sentenced to at least 20 years in prison, with the possibility of life in prison or death.
- Rape of a Minor (POCSO Act, 2012): • The Protection of Children from Sexual Offences (POCSO) Act takes sexual offences against minors under the age of 18 very seriously and imposes harsh penalties, such as life in prison or, in the worst situations, death.
MARITAL RAPE AND ITS LEGAL EXCEPTION
Marital rape is one of the most controversial topics in Indian law. Sexual contact within a marriage (if the woman is older than 18) is not regarded as rape under Exception 2 to Section 375 IPC, even if it takes place without the wife’s permission.
According to this clause, a husband cannot be accused of raping his wife, regardless of how strongly the wife objects or declines. This provision has drawn a lot of criticism because it denies women the ability to refuse in marriage, which many see as a basic infringement on their human rights and physical autonomy.
Though change has been gradual and marital rape is still legal in India, there is increasing pressure in legal and social circles to eliminate this exception because it is believed that a woman’s freedom of choice is equally significant in marriage as it is outside of it.
HISTORY OF MARITAL RAPE
In the 1960s and 1970s, Indian society, deeply rooted in patriarchy, upheld marriage as an institution where a wife was expected to fulfil her husband’s desires, including sexual ones, often without considering her own agency or consent. The legal framework of the time, through Section 375 of the Indian Penal Code, defined rape but excluded marital rape, asserting that a husband could not be accused of raping his wife if she was over the age of 15. This reflected a widespread belief that marriage granted husbands unconditional rights over their wives’ bodies, silencing any discourse on consent within the marital relationship.
During this period, women were frequently viewed as homemakers and caregivers who should put their families’ needs ahead of their own. They were rarely recognised for their independence, particularly in marriage. It was practically unheard of for a wife to have the ability to refuse her husband or even to control her own body. The law did not intervene to shield women from sexual assault in their own homes since marital problems, including violence, were seen as private matters.
This legal and societal approach demonstrated a wider disrespect for the rights and dignity of women. Because it was hidden beneath the layers of patriarchal ideas that outlined gender roles, marital rape was not even considered. Women lacked the legal resources to defend themselves or seek justice since their voices were muffled and their suffering disregarded. Therefore, the 1960s and 1970s were a period when a woman’s consent was not respected in marriage and when the law and society failed to recognise or accept her suffering.
JUDGMENTS OF MARITAL RAPE
In India, the topic of marital rape has remained controversial because men are typically immune from prosecution under the law. However, the idea of marital immunity has been called into question by critical debates triggered by court interpretations throughout the years. The following significant rulings illustrate the tension between women’s rights and social standards and represent the changing legal position on marital rape.
- Independent thought V. Union of India (2017)
The Delhi High Court declared in Independent Thought v. Union of India (2017) that the IPC’s Section 375 exemption, which prohibited marital rape of wives under the age of 18, was unconstitutional. The Court ruled that this exception infringed against the rights to equality (Article 14) and life and liberty (Article 21), highlighting the need of consent, irrespective of age or marital status.
- Dilip Pandey V. State of Chhattisgarh(2021)
The court held in Dilip Pandey v. State of Chhattisgarh (2021) that sexual actions between lawfully wed couples are not rape, even if they are performed under pressure or without consent. In keeping with the belief that such activities are not illegal, the ruling placed a strong emphasis on the marital bond and excluded permission as a consideration in circumstances of sexual activity within a marriage.
- Sakshi V. Union of India (2004)
Social activist Sakshi and an NGO filed a public interest petition with the Supreme Court in the Sakshi v. Union of India case (2004). They maintained that the definition of rape’s use of the term “sexual intercourse” should be expanded to encompass not only penile-vaginal penetration but also all types of penetrative sexual assault. The Supreme Court, however, refused to consider the plea, ruling that Section 375 of the Indian Penal Code clearly outlined the legislation. The Court underlined that the legislature, not the courts, should make any amendments to the legislation.
CONSTITUTION ANALYSIS
The fundamental rights of women guaranteed by the Constitution are directly undermined by marital rape, which is currently exempt under Section 375 of the Indian Penal Code (IPC). This exemption is against Article 21, which protects the right to life and personal liberty, and Article 14, which guarantees the right to equality. By promoting injustice and damaging gender stereotypes, it deprives women of the respect and independence they are entitled to in their marriages.
- Article-14 (violation of equality)
Equal rights and protection under the law are guaranteed by Article 14. Women suffer because the marital rape exemption protects husbands from prosecution for sexual assault against their wives and draws a line between married and unmarried women. Married women are not afforded the same legal safeguards against sexual violence on account of their perceived inferiority to other women. Not making marital rape a crime perpetuates the antiquated idea that a husband’s power over his wife supersedes her independence and consent. The equality principle states that all people should have the same legal protections regardless of marital status, and this unfair method blatantly breaches that ideal.
- Article-21 (violation of personal liberty)
Everyone’s right to life and personal liberty, including the right to live in dignity and free from compulsion and violence, is guaranteed by Article 21. This right is obviously violated by marital rape, which exposes women to emotional, psychological, and physical abuse in the ostensibly secure environment of their own homes. It keeps women trapped in a cycle of pain, dread, and silence in addition to denying them agency over their bodies. Women are unable to live free, honourable lives as they are unable to pursue justice for such a crime. By shielding spouses from legal action, the law reinforces a culture of abuse and control by sending the message that a husband’s claimed right to sex is more significant than a wife’s dignity. The Constitution promotes equality and respect, however a woman’s right to personal freedom is infringed and she is treated cruelly.
SOCIETAL IMPLICATIONS
India’s marital rape problem is more than just a legal one; it has a profound impact on society as a whole, particularly when we take into account the actual lives and feelings of people involved. There are innumerable women whose voices are muffled and whose suffering is disregarded due to deeply embedded cultural norms and expectations within marriage, and it is not only about a legislation that does not provide protection.
- Denial of women’s autonomy and bodily rights
Fundamentally, marital rape deprives women of their most basic right: the ability to refuse. Marriage is still seen in many Indian communities as a contract in which a woman’s body is considered to belong to her husband. Many women are forced to remain silent by this mindset, which makes them feel as though they have no control over their bodies, even in the most private settings. These women experience more than simply physical abuse; they are repeatedly reminded that their needs, desires, and permission are irrelevant.
- The ripple Effect on children and families
The entire family is affected by marital rape; it doesn’t just affect the wife. Children who are raised in households where abuse is either ignored or permitted frequently suffer from severe emotional trauma. They start to adopt the notion that this type of behaviour is typical after seeing the harmful relationships between their parents. As these kids get older, they frequently take with them the same beliefs about power dynamics in relationships and gender roles that they seen in their households, perpetuating the cycle.
- The crumbling of Marriage’s true meaning
Mutual respect, love, and trust are the cornerstones of a successful marriage. However, the foundation of this sacred tie is destroyed when consent is ignored inside it. The idea that a wife should blindly follow her husband’s wishes distorts what a partnership is really all about. Marriage turns into a setting for power dynamics and control rather than respect and understanding. This causes difficult-to-heal emotional scars and frequently starts a pattern of abuse that impacts the whole family, not just the marriage.
- Reinforcing gender inequality
A sad reminder of the widespread gender inequality that still persists is marital rape. It upholds the notion that a woman’s function in a marriage is to serve her husband; her wants, emotions, and general well-being are subordinate. The idea that men possess women is reinforced when a wife is expected to satisfy her husband’s sexual desires regardless of how she feels. Women are prevented from reaching their full potential in marriage and in society at large by this antiquated and damaging belief system.
FAQ ( FREQUENTLY ASKED QUESTIONS)
- What is marital rape exactly, and why isn’t it currently illegal in India?
The term “marital rape” describes a circumstance in which a husband coerces his wife into having sex against her will. However, in India, if the wife is older than 18, this act is not considered a crime because of an exemption provided by Section 375 of the Indian Penal Code (IPC).
- Has the court lately rendered any significant rulings on this matter?
Yes, the Delhi High Court rendered a divided decision in 2022. The Supreme Court is now considering the case, and its ruling might have a profound impact.
- Is marital rape a crime in other nations?
Most nations, including the United States, United Kingdom, and Australia, consider marital rape to be a criminal offence. One of the few countries where it is not yet prohibited, though, is India.
- How does this issue connect to women’s reproductive rights?
Marital rape can lead to unwanted pregnancies and serious health problems, leaving women with no control over their own bodies.
- Does the fact that marital rape is not illegal have anything to do with patriarchy?
Of course. Marital rape is normalised in patriarchal settings because it is frequently assumed that men have a “right” over their wives’ bodies.
CONCLUSION
Decriminalising marital rape is not only a legal change; it is also an essential step in upholding the equality, autonomy, and dignity of every Indian person. The antiquated notion that getting married gives one absolute consent to have sex diminishes the humanity of those involved and has no place in a contemporary, equitable society.
Creating a culture that views marriage as a partnership based on respect and consent, rather than a license for abuse or control, is the goal of this shift, which goes beyond simply penalising offenders. It sends a strong message that every person, regardless of marital status, has the right to be heard and to say no, challenging long-standing social norms.
However, a reform in the legislation alone is not enough to achieve real development. It requires everyone to work together to help survivors, educate communities, and make sure the legal system is just and humane. India has the opportunity to fulfil its promise of justice and equality for all by combating marital rape and promoting a culture in which each person’s humanity is respected and safeguarded.
Beyond merely changing the law, this is a step toward a time when respect will be the foundation of relationships and no one’s voice will be stifled out of custom.
