ABSTRACT
Marriage is considered a sacred institution, but it raises complex questions about rights and consent. When it comes to legal definitions of rape, which are based on the absence of consent, applying these definitions within marital contexts can be challenging. The issue of marital rape remains unaddressed by the law in India, making it one of the last 36 countries that have not criminalized this form of violence within marriage. Globally, many jurisdictions do not recognize marital rape as a criminal offence, often due to exemptions in the law for spouses. This legal gap, often referred to as the “marital rape exception clause,” leaves victims unprotected within marital unions. Similarly, India lacks laws that categorise marital rape as a crime, despite providing safeguards against other forms of abuse. The lack of legal protection highlights a deficiency in addressing the entire range of women’s rights in marriage. Unresolved cases of a husband engaging in non-consensual sexual behaviour undermine women’s autonomy and sense of dignity. When exploring the concept of marital rape and its global prevalence, it becomes evident that safeguarding women’s rights within marriage requires urgent attention.
MARITAL RAPE
Rape is a terrible act of sexual intercourse committed against any person without their consent. It is considered a form of sexual assault, which includes non-intercourse acts as well. In the past, rape was often thought to be driven by uncontrollable sexual urges, but it is now recognised as a way for an individual to assert power over a victim.
In the Indian Penal Code, Section 375 defines rape as an act committed by a man against the will and without the consent of a woman.
MEANING:
Marital rape, defined as the act of non-consensual sexual intercourse by a man with his wife, is a deplorable form of abuse wherein some husbands assert control and dominance through repeated sexual coercion. Throughout history, marriages across various cultures have often been regarded primarily as a means of procreation, sometimes overlooking the necessity of consent. Consequently, certain traditions and cultures do not recognize a lack of consent during marital relations as a form of sexual violence. This issue significantly impacts women’s rights in a given country, including the ongoing evolution of women’s rights in India compared to historical norms.
CAUSES OF MARITAL RAPE:
- Illiteracy:
Illiteracy is a significant factor leading to illegal and unjust actions. Outdated beliefs persist, suggesting that a woman’s spouse is everything, and criticizing one’s husband is akin to rejecting God’s work. Many individuals, particularly women who are victims of injustice, lack awareness of the law, including clarity on prohibited behaviour and available remedies. - Society:
A man cannot fully develop unless he is a member of society, as he is a social animal. Every community governs its members according to a unique set of social norms. Women are subject to strict constraints from society, which include being barred from leaving her husband’s home for the rest of her life, being raped, not being able to have a child, and being rejected if a woman defies social norms and standards.
- Sexual Conflict between Couples:
Menstruation, stress, physical injuries, and other factors are some of the reasons why women may have declined to engage in sexual activity. However, the husband uses his ego to justify forcing sexual relations with his wife because he does not want to lose his dominance and use of power over women.
- Male Dominance:
Men tend to try to control women because they believe they are superior to them. They can’t take any kind of backlash from women against them. They are always taking action to stifle the voices of women. They think that the best way to do this is to have sex with their wife whenever they want.
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LAWS ON MARITAL RAPE IN INDIA
Rapes frequently spark a huge commotion since, even just the word itself conjures up images of a man forcing a woman into having sex. But the patriarchal culture in our nation ignores marital rape and pretends it is not obligated to support married women who are abused by their husbands. In current Indian society, where women are viewed as his property after marriage, it is common for men to believe that they can do anything they want, regardless of whether their wives approve. Legal implications for marital rape remain unclear in India, where it is still not regarded as a crime. This is mostly because society assumes that consent automatically follows marriage when a rapist and victim get married, rendering the concept of “consent” worthless.
Section 375 of the penal code of India:
Section 375 of the IPC provides an exception for rape committed during marriage. The following consequences are possible for spouses who violate the laws against marital rape:
- If the victim (wife) is a juvenile (12 to 15 years old), the husband could receive a maximum penalty of two years in prison. In certain cases, there might also be a fine or a combination of jail time and a fine.
- The spouse may face a maximum sentence of 7 years in prison or, in certain situations, a life sentence in addition to a substantial fine if the victim is younger than 12 years old.
- In addition to a fine, the husband and wife could face up to two years in prison if they are deemed to be legally separated.
- It is not illegal and there won’t be any consequences if the wife is over fifteen.
It is unfair and discriminatory that the court does not treat all forms of rape equally because the victim must meet certain prerequisites and exclusions, like those related to age, marital status, legal separation, etc. When a woman is sexually abused by her husband, it is disgraceful for her to lose her legal protection and fundamental human rights, particularly since every rape has a major detrimental effect on the victim’s physical, emotional, and psychological well-being.
Article 14: Right to Equality
The Indian Constitution states in Article 14 that every individual has a legal right to equality. This means that everyone in India ought to get the same level of protection. Because of this, a married woman does not receive the justice she is entitled to when she files a legal claim after being denied her bodily rights. The exclusion for marital rape in Section 375 of the IPC violates Article 14 of the Indian Constitution. Married women should have the same rights and privileges as single, unmarried women.
Article 21: Right to Life and Personal Liberty
As per Article 21 of the Indian Constitution, no individual can be deprived of their life or personal liberty unless it is done so in compliance with the legal procedure. The same article also covers other laws, such as those about sexual privacy, a safe environment, and health. When a man rapes a married woman, he violates her right to a dignified existence, as guaranteed by Article 21, as it severely damages her dignity and sense of self-worth. It is the root cause of a lot of psychological problems. The wife’s right to dignity is violated by marital rape since it puts her rights at risk. The next legal provision covered by Article 21 is the right to sexual privacy. Every individual in the country is entitled to sexual liberty. In the context of sexual privacy, consent is essential. Even though she is married, she should be able to exercise her independence and fundamental human right to only participate in sexual behaviour with her consent. She cannot be made to do anything against her will, not even if it is her spouse.
THE STATUS OF MARITAL RAPE IN INDIA:
The status of marital rape in India remains a contentious issue. Regrettably, India is one of the remaining thirty-six countries that have yet to criminalize marital rape. Exception 2 to Section 375 of the Indian Penal Code (IPC) stipulates that non-consensual sexual intercourse by a man with his wife, if she is over 15 years old, does not constitute rape. This provision effectively excludes coercive and non-consensual intercourse by a husband with his wife (above 15 years of age) from being classified as rape. This legal stance is based on the presumption that a woman, upon marriage, gives perpetual consent to her husband for sexual intercourse.
Disturbingly, according to the 2015-16 report from the National Family Health Survey, nearly 83% of married women between the ages of 15 and 49 have reported experiencing sexual violence at the hands of their husbands, with 7% categorizing their spouses as offenders. The same report indicates that 4% of women were coerced into sexual intercourse by their husbands, 2.1% were forced to perform sexual acts, and 3% were threatened when they refused to engage in sexual activity.
Further, a report by the International Center for Research on Women and the United Nations Population Fund, which surveyed 9,500 respondents in seven states of India, revealed that 17% of wives reported experiencing sexual violence from their spouses, while 31% of men admitted to perpetrating sexual violence against their wives. These distressing statistics underscore the urgent need for legal reform and societal change to address this pervasive issue.
In the case of Harvinder Kaur vs. Harmander Singh, the Delhi High Court held that the Constitution of India could not intervene in household matters as it would destroy the institution of marriage. The court further held that “in the privacy of the home and married life, neither Article 21 nor Article 14 of the Indian Constitution have any role to play.”
The Supreme Court ruled in the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar that a woman’s right to privacy cannot be infringed upon.
In Shri Bodhisattwa Gautam vs. Ms Subhra Chakraborty, the Supreme Court held that rape violates Article 21 of the Indian Constitution as it hinders fundamental human rights and breaches the victim’s right to life and dignity.
The Justice Verma Committee suggested criminalizing marital rape after the Nirbhaya rape case in 2012, stating that marriage didn’t mean irrevocable consent to sexual activities. However, the Government of India neglected the suggestion.
The RIT Foundation filed a Public Interest Litigation in the Delhi High Court in 2015 calling for the criminalization of marital rape in section 375 of the IPC on the grounds of violation of fundamental rights under Articles 14, 15, 19, and 21 of the Indian Constitution.
In 2016, Maneka Gandhi, then Minister for Women and Child Development, stated that due to illiteracy and poverty in India, the concept of marital rape could not be applied here even if it is accepted and understood globally.
In the case of Independent Thought vs. Union of India, the supreme court reconsidered the theoretical basis of the marital rape exception as it violates the constitutional rights of girls aged 15 to 18 who are married. The court examined section 375 of the Indian Penal Code, the Protection of Children from Sexual Offences Act, 2012, the Prohibition of Child Marriage Act, 2006, and other related laws. The court ruled that sexual intercourse with a wife below 18 years of age is not considered rape, but if the husband is already married and aware of the first marriage, then intercourse with such a wife is considered rape. The Gujarat High Court also stated that the concept of marital rape and the notion of ‘implied consent’ in marriage should be abolished to ensure the protection of every woman’s bodily autonomy. Additionally, in the case of Anuja Kapur vs. Union of India Through Secretary, a public interest litigation was filed to urge the government to establish guidelines and laws on marital rape. However, the Supreme Court bench led by Justice SA Bobde and Justice BR Gavai refused the petition, stating that the responsibility for formulating laws lies with the legislature, not the judiciary.
CRIMINALISATION OF MARITAL RAPE
- The absence of criminalization of marital rape infringes upon the fundamental rights guaranteed by Article 14 (right to equality and equal protection of law) and Article 21 (right to life and personal liberty) of the Indian Constitution.
- Not criminalizing marital rape contradicts other laws in India that define outraging the modesty of a woman or any act against her will or consent as crimes. Marital rape, similarly, occurs without the woman’s consent but is not classified as a crime.
- When a woman is coerced into sexual intercourse against her will, it not only affects her physical health but also has a significant impact on her emotional well-being, which violates her fundamental right to lead a healthy life.
- Due to the lack of recognition of marital rape as a crime, the reported cases are scarce. Once it is recognized as a crime, the true extent of its occurrence can be known.
CONCLUSION
The issue of marital rape or spousal rape must be regarded as a criminal offence, as a husband does not have any right to coerce or intimidate his wife into any form of sexual activity. Exception 2 to Section 375 of the Indian Penal Code goes against the fundamental rights guaranteed by the Constitution of India, specifically Article 14 and Article 21. There should be no differentiation between the rights of married and unmarried women, and marital status should not determine whether a rape has occurred. Marital rape deprives women of a healthy life with human dignity and unjustly grants husbands the authority to act autocratically, knowing that they can escape punishment for marital rape. The legislature must act and remove this provision, as the State must protect all individuals, regardless of their marital status, from such heinous acts. Hence, new laws should be enacted and enforced more effectively, taking into account a woman’s fundamental rights and her right to be recognized as an independent legal entity, irrespective of her marital status.
FAQs
- Has the Supreme Court of India made any rulings regarding marital rape?
The Supreme Court of India has not issued any specific rulings on the criminalization of marital rape. The legal framework and discussions concerning marital rape are still developing.
- What obstacles exist in India’s efforts to make marital rape a crime?
The challenges in criminalizing marital rape in India include societal attitudes, traditional beliefs, concerns about the misuse of laws, and the perception that marital relations are private, making legal intervention challenging.
