Author: Sushmita Das, A student at Christ Academy Institute of Law, Bengaluru
Abstract
Marital rape, a heinous form of sexual violence, persists in India despite its alarming prevalence. This paper delves into the socio-legal landscape surrounding marital rape, highlighting the absence of specific laws criminalizing it and the societal norms that perpetuate its impunity. Recent legal amendments have failed to address this issue comprehensively, leaving countless victims without recourse. The study aims to critically examine the challenges and obstacles in implementing legal reforms to criminalize marital rape, exploring societal attitudes and advocating for necessary changes. Despite resistance rooted in cultural, religious, and legal concerns, recognizing marital rape as a crime is imperative for ensuring justice and dignity for all individuals.
Introduction
Marital Rape means sexual assault perpetrated by someone who is the spouse or long-term domestic partner of the person they assault, unfortunately in India maximum time this is an opportunity to have intercourse in the name of “haq” that it is other person right to have intercourse with the spouse as they are married it does not matter the other person have given the consent or not, still they will force the spouse to have sex with them. Shockingly there are no laws to stop this sexual assault because there are pros and cons for the same. India a very developing country who sees more than 100s of cases in every court hall, where 5-6 cases would be of marital rape where consent is not given by the other spouse but still, they go through the intercourse because the other person forces to do so.
Shockingly, despite the prevalence of such assaults, there are no specific laws in India criminalizing marital rape, though there was expectation when amendments were made in criminal manual of India, where amendments were made under CrPC, IPC, IEA, now known as Bharatiya Nyaya Sanhita, 2023(IPC) Bharatiya Nagarik Suraksha Sanhita, 2023, (CrPC) and Bharatiya Sakshya Sanhita, 2023(IEA), but even new amendments doesn’t talk about or specified in any way that Marital rape has been criminalized, the legal system has failed to address this issue as often justified by citing the potential for misuse of such laws and the complexities involved in proving the absence of consent. However, this legal gap leaves countless victims without recourse, perpetuating a cycle of abuse and trauma.
As a rapidly developing country, India grapples with a multitude of legal cases daily, with marital rape incidents alarmingly common yet vastly underreported. In numerous courtrooms across the nation, marital rape cases struggle to gain the attention they deserve. The absence of legal provisions specifically addressing this form of sexual violence not only reflects societal norms that prioritize marital unity over individual rights but also highlights the urgent need for legal reforms and hence addressing marital rape requires a multifaceted approach, including legal recognition, societal awareness, and robust support systems for survivors. The struggle to balance cultural values with individual rights continues to be a significant challenge in India, but acknowledging and confronting the issue of marital rape is a crucial step toward ensuring justice and dignity for all spouses.
Statement of problem
The lack of specific legal provisions against marital rape underscores societal norms that prioritize marital unity over individual rights, highlighting the urgent need for comprehensive legal reforms and addressing marital rape in India requires a multifaceted approach, encompassing legal recognition, societal awareness, and robust support systems for survivors. The challenge lies in balancing deeply rooted cultural values with the imperative to uphold individual rights. Confronting and acknowledging the issue of marital rape is essential for ensuring justice and dignity for all spouses, marking a crucial step towards a more equitable society.
Relevance of the study
- The study aims to provide a comprehensive understanding of the current legal deficiencies and advocate for necessary reforms.
- This study underscores the importance of protecting individual rights within a marriage, challenging societal norms that prioritize marital unity over personal freedom and how addressing marital rape is essential for ensuring justice and dignity for all individuals, regardless of their marital status.
- Societal awareness and attitudes towards marital rape are often shaped by deep-rooted cultural beliefs and misconceptions and by bringing attention to this issue, this study seeks to challenge these norms and foster a more informed and empathetic public discourse and more awareness can lead to greater societal support for victims and a shift towards more equitable gender relations.
Objective of the study
- To critically examine the current legal provisions related to marital rape in India, including recent amendments to the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Sanhita.
- To explore societal attitudes and cultural norms related to marital rape and consent within marriage.
- To promote awareness and advocacy on the issue of marital rape through dissemination of research findings.
Research question
- How do recent amendments to the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Sanhita address or fail to address marital rape?
- What are the physical and social impacts of marital rape on victims?
- What are the main challenges and obstacles in implementing legal reforms to criminalize marital rape in India?
How do recent amendments to the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Sanhita address or fail to address marital rape?
In India, marital rape is not criminalized under the Indian Penal Code, 1860 (hereinafter referred to as the Code). Section 375 of the Code defines rape, but excludes acts of sexual violence in a marriage from its scope, unless the wife is below 15 years of age, technically the age had to be 18 years old but there are still believe and faith in some religion because of which they get their daughter marry when they attain the age of 15 years or when they start to have menstruation cycle.
The Code also provides different punishments for rape depending on the age and marital status of the victim. If the victim is the husband’s own wife and is not below 12 years of age, the punishment is reduced to imprisonment for up to 2 years or a fine, or both. However, if the victim is the husband’s own wife and is below 12 years of age, or if the victim is a judicially separated wife, the punishment is the same as for rape of any other woman, i.e. imprisonment for not less than 7 years, extendable to life imprisonment, and fine. But it still lacks the law for marital rape as rape and marital rape are both different aspects in the eye of law.
The BNS, which replaces the IPC, has retained much of the language from the IPC regarding sexual offenses. However, there is no specific provision explicitly criminalizing marital rape as in the new amendments as well. Section 375 of the IPC, which defines rape, includes an exception that states sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape. This exception has been a point of contention and is retained in the BNS. Though the amendment maintains the same age criterion where marital rape is only recognized if the wife is under 18 years old. This aligns with the POCSO Act, but adult marital rape remains excluded. The recent amendments still do not address the criminalization of marital rape for adult women, continuing the legal stance that has been widely criticized by women’s rights groups and legal reform advocates.
Talking about the difference between rape and marital rape is necessary as there are still people who are not aware about the termologies used to describe the act
Basis
Rape
Marital rape
Definition
Rape is defined under Section 375 of the Indian Penal Code (IPC). It involves sexual intercourse with a woman against her will or without her consent. The key elements include:
- Against her will.
- Without her consent.
- Consent obtained under fear or threat.
- Consent given under a misconception of fact.
- With a woman who is incapable of giving consent.
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. Under current Indian law, Section 375 of the IPC provides an exception for marital rape, stating that sexual intercourse by a man with his wife is not rape if she is over 18 years of age.
Punishment
Section 376 of the IPC prescribes the punishment for rape, which includes:
Rigorous imprisonment for a term not less than seven years but which may extend to life imprisonment and shall also be liable to fine.
In certain aggravated circumstances, the punishment can be more severe, extending to rigorous imprisonment for not less than ten years or life imprisonment, with fines.
Exception:
Section 375, Exception 2: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
Consent
Lack of consent is the central element that defines the act as rape.
Under the current Indian law, if the wife is above 18 years, the lack of consent is not recognized as rape.
Legal Recognition
Fully recognized and punishable under the IPC.
Not recognized as a criminal offense for adult women under the IPC, leading to significant advocacy for legal reform.
Protection and Rights
The victim has the right to legal recourse, protection, and support from the state.
The victim (if an adult) does not have the same legal recourse under current law, although the Protection of Women from Domestic Violence Act, 2005, can provide some relief.
Judicial Reform
Ongoing reforms and judicial pronouncements aim to strengthen the law and provide better protection to victims.
There is significant advocacy for reform to recognize marital rape as a crime, reflecting changing societal values and human rights perspectives.
Case laws
Mukesh & Anr. v. State for NCT of Delhi & Ors. (2017) (Nirbhaya Case) The case highlighted the brutal nature of the crime and led to significant amendments in laws related to sexual offenses, including the Criminal Law (Amendment) Act, 2013.
Independent Thought v. Union of India (2017) the Supreme Court ruled that sexual intercourse with a wife below 18 years of age is considered rape, making an exception to the marital rape immunity for minor wives.
What are the physical and social impacts of marital rape on victims?
It is not so to mention that what happens when a woman goes through such an act, and not only that but she also must hide the fact, that such an act has been committed by her husband otherwise ‘what will society say.’ The society is big reason what happens and why it does not come to the light of action. No matter what the reasons made by the female family or man’s family, friends, counsellor they all somehow supports the fact that ‘what will society say’, ‘how you will face society’, ‘what will you say to society that why you left your husband’, all these roam around the society no matter what, the actual reason for not let anyone fly in the world of different field is the society, what is not understandable tis same society does not show there face when you are at your lowest but when something good happens they all come to support, where was this same society when Nirbhaya was naked on the side of the road asking for help everyone was seeing her but no one helped her, is that how society should behave when everything needed or wanted by people needs this so called society approval. Who are they to judge that how a married couple must live or how they must stay together no matter what happens between them, they cheat, they torture, they ignore all the efforts, it should be always the matter of couple and their family not whole society who only know how put everyone in difficult situation.
No one understand that how a woman must hide all her physical pain from this same so-called society so that she can live happily with her torturous husband. In marital rape a woman must go through various physical injuries, including bruises, lacerations, and fractures and these injuries can occur due to forceful intercourse and physical assault accompanying the rape, they may experience chronic pelvic pain, genital injuries, sexually transmitted infections (STIs), and complications in their reproductive health, marital rape can also lead to severe gynecological problems such as vaginal tearing, infections, unwanted pregnancies, miscarriages, and infertility.
In many cultures, marital rape carries a significant stigma, leading to victim-blaming and shaming and this cultural stigma can discourage victims from speaking out and seeking help. In societies where marital rape is not legally recognized, victims face significant challenges in seeking justice and protection and this lack of legal recourse can perpetuate the cycle of abuse and victimization. They also may withdraw from social interactions, leading to isolation from friends, family, and social networks, the stigma associated with marital rape can exacerbate this isolation.
In today’s time it is not wrong to say that woman uses laws as their weapon to get their wish fulfilled by their husbands and in laws. But what about those few percentages of woman who actually go through the pain every day, and they have no one to support them.
The woman who goes through marital rape often experience PTSD, characterized by flashbacks, nightmares, severe anxiety, and uncontrollable thoughts about the assault, they may also may suffer from depression, marked by persistent sadness, loss of interest in daily activities, hopelessness, and suicidal thoughts.
What are the main challenges and obstacles in implementing legal reforms to criminalize marital rape in India?
- They believe that marriage implies a permanent and irrevocable consent to sexual intercourse, and that the state should not interfere in the private affairs of married couples.
- They fear that criminalizing marital rape would destabilize the institution of marriage and the family, and that it would encourage false accusations and blackmail by disgruntled wives.
- They argue that marital rape is already covered under the existing laws on domestic violence and cruelty, and that creating a separate offence of marital rape would be redundant and unnecessary.
- They contend that marital rape is a cultural and religious issue, and that imposing a western concept of consent and autonomy on Indian society would be inappropriate and insensitive.
- In 2019, a woman in Delhi accused her husband of raping her after he refused to give her money for shopping. The police found out that the woman had filed several false cases against her husband and his family in the past, and that she had been living separately from him for two years. The court dismissed the case and observed that the woman was misusing the law to settle personal scores.
- In 2020, a woman in Mumbai accused her husband of raping her after he filed for divorce. The police found out that the woman had been having an extramarital affair and that she had fabricated the rape charge to stop the divorce proceedings. The court granted bail to the husband and noted that the woman had no evidence to support her claim.
- In 2021, a woman in Uttar Pradesh accused her husband of raping her after he married another woman. The police found out that the woman had eloped with the man when she was already married to someone else, and that she had filed the rape case to take revenge on him. The court quashed the case and remarked that the woman was trying to misuse the law for her personal gains.
Criminalizing marital rape would destabilize the institution of marriage and the family, which are considered as the foundation of the society and the culture. Marriage implies a permanent and irrevocable consent to sexual intercourse, and the state should not interfere in the private affairs of married couples. Criminalizing marital rape would also encourage false accusations and blackmail by disgruntled wives, who may use the law to settle personal scores or to extort money from their husbands.
Criminalizing marital rape would be redundant and unnecessary, as there are already existing laws that cover marital rape under the clout of domestic violence and cruelty. For instance, section 498A of the Indian Penal Code, 1860 provides for punishment for cruelty by husband or his relatives, which includes any willful conduct which is of such a nature as is likely to drive woman to commit suicide or to cause serious injury or danger to life, limb, or health (whether mental or physical) of the woman. The Domestic Violence Act, 2005 also provides for protection orders, residence orders, monetary relief, custody orders, compensation orders and interim orders for the victims of domestic violence, which includes any act, omission or commission or conduct of the respondent which harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.
Criminalizing marital rape would be inappropriate and insensitive, as it would impose a western concept of consent and autonomy on the Indian society, which has a different culture and religion. Marital rape is a cultural and religious issue, and the law should respect the customs and traditions of the people. Criminalizing marital rape would also create a conflict between the personal laws and the criminal law, as different communities have different norms and practices regarding marriage and sexuality.
BNS omits provisions on unnatural sex, adultery, but fails to include marital rape: The Bharatiya Nyaya Sanhita (BNS) Bill which is proposed to replace the British-era Indian Penal Code (IPC) does away with two contentious provisions on unnatural sex and adultery that were diluted and struck down respectively by the Supreme Court in 2018. However, the bill fails to include marital rape as a criminal offence, despite the recommendations of a Parliamentary Standing Committee.
Section 377 Out, BNS Raises Questions Over Protection of Men Against Rape: The amended Bharatiya Nyaya Sanhita, 2023, tabled and passed in the Lok Sabha on Wednesday, 20 December, does not include the Indian Penal Code (IPC) Section 377, which was read down by the Supreme Court in 2018. The absence of this section in the bill could leave adult male victims of sexual assault without much recourse in the law, some experts pointed out.
BNS 2023: Amid Provisions for Women’s Safety, Gender Equality Finds No Mention: Indian laws till today date as do not consider marital rape as rape due to various social, cultural and legal concerns that have been contested for in courts. Criminalizing marital rape was rejected by Justice C. Hari Shanka, who was part of the Delhi High Court bench that delivered a split verdict on the same last year.
Conclusion
Marital rape remains a grave violation of human rights in India, exacerbated by the absence of specific legal provisions criminalizing it. Despite recent legal amendments, the reluctance to address this issue comprehensively reflects deeply ingrained societal norms and cultural beliefs. The challenges in implementing legal reforms include concerns about destabilizing marriage institutions, potential misuse of the law, and conflicting personal and criminal laws. However, the failure to recognize marital rape as a crime perpetuates a cycle of abuse and victimization, leaving survivors without recourse and perpetuating a culture of impunity. Efforts to address this issue must prioritize legal recognition, societal awareness, and robust support systems for survivors, marking a crucial step towards a more equitable society where individual rights are upheld and protected.
FAQ
Q. Is there any specific law for marital rape in India?
A, No, there is no law specifically mentioning marital rape laws not even in recent amendments.
Q. Is there is any difference between rape and marital rape?
A. Yes, there is big difference and same has been mentioned in the article.
