Author : Anjali Sharma, a student at SGT University
Introduction
‘Rape’ in its most basic sense means sexual relations without the consent of any one or more of the partners, which is ideally a matter of consent however it is made a matter of relationship between the victim and the rapist. The biggest example is ‘Marital Rape’ where the husband wrongfully justifies it for conducting such abuse to his wife.
Marital rape, a term that refers to the non-consensual sexual act between married partners, remains one of the most contentious legal and social issues in India. Despite significant advancements in women’s rights and protections globally, marital rape is still not criminalized in India, making it a point of contention in the ongoing battle for gender equality and justice. While many countries have criminalized marital rape, India continues to grapple with this issue, with societal, cultural, and legal barriers to addressing it effectively. The problem is compounded by the fact that in India, marital rape is not considered a crime due to an exception in the Indian Penal Code (IPC) under Section 375, which excludes marital rape from its definition of rape.
This article delves into the legal, societal, and statistical perspectives on marital rape in India, analyzing its controversial status, available data, and significant cases that have brought the issue to the forefront.
Categories of Marital Rape
Experts categorize marital rape into three primary types that are commonly recognized in society:
1. Battering Rape: This type involves both physical and sexual violence within the relationship. Women may experience physical abuse during sexual assaults, or the act of rape may take place after an episode of violence where the husband attempts to reconcile by coercing his wife into sex against her consent. Most marital rape victims are found in this category.
2. Force-Only Rape: In “force-only” rape, husbands apply just enough physical pressure to compel their wives into sexual activity. Relationships characterized by this type of rape typically do not involve ongoing physical abuse, and these incidents generally occur after the woman has declined sexual advances.
3. Obsessive Rape: This category includes what some refer to as “sadistic” or “obsessive” rape, which features assaults that may involve torture and/or abnormal sexual practices, frequently accompanied by physical violence.
Legal Landscape: The Indian Penal Code and Marital Rape
India’s legal framework, as outlined in the Indian Penal Code (IPC), does not criminalize marital rape. Section 375 of the IPC defines rape but includes an exemption for sexual acts between a married couple unless the wife is under the age of 15. This exception is one of the key reasons marital rape is not recognized as a criminal offense in India.
Justice Verma Committee Report (2013)
In response to the 2012 Delhi gang rape incident, the Justice Verma Committee was established to propose changes to criminal law that would facilitate faster trials and impose stricter penalties for individuals accused of sexual assault against women. On January 23, 2013, the Committee presented its findings, which included significant observations regarding marital rape.
The Indian Penal Code (IPC) currently makes a distinction between rape committed within marriage and that occurring outside it. While the IPC prohibits sexual intercourse without consent, there is a provision that exempts husbands from being prosecuted for non-consensual sexual relations with their wives. The Committee recommended eliminating this exemption, arguing that marriage should not imply a blanket consent to sexual activity. Therefore, in examining whether consent was given for a sexual act, the nature of the relationship between the victim and the accused should not be relevant.
The Committee’s stance was largely influenced by rulings from various international courts. It referenced the European Commission of Human Rights case, C.R. v. UK, which affirmed that a rapist’s identity as an offender does not change based on his relationship with the victim. The comprehensive 630-page report strongly condemned existing attitudes on this matter.
In 2017, a petition was filed in the Delhi High Court by a social worker, seeking the criminalization of marital rape. The petitioner argued that the current provision violates a woman’s right to equality and to live with dignity. However, the court declined to interfere, stating that the issue should be debated in Parliament, as it is a matter of legislative policy. This decision highlighted the reluctance of India’s legal system to address the issue directly.
Further, in 2022, a bench of the Supreme Court of India upheld the exception in Section 375, arguing that marital rape is not an offense as long as the wife is above 15 years old. The ruling drew intense criticism from women’s rights activists, who argued that such a stance perpetuates violence and abuse against women within marriage. The Court suggested that such matters be handled through changes in the law, emphasizing the need for parliamentary intervention.
Societal and Cultural Attitudes Toward Marital Rape
In India, the notion of marital rape clashes with deep-rooted cultural and traditional views on marriage, gender roles, and sexual autonomy. In many communities, marriage is seen as a sacred institution, where the rights of women are often subordinated to those of men. Women are often expected to submit to their husband’s demands, and sexual violence in marriage is not widely acknowledged as a violation of a woman’s rights. These traditional beliefs contribute to the reluctance to recognize marital rape as a crime.
Additionally, marriage in India is often viewed as a contract that provides men with unrestricted sexual access to their wives. Many people, especially in rural areas, do not perceive sexual violence within marriage as a form of abuse. This misconception is further reinforced by the stigma attached to divorce and the pressure on women to preserve the sanctity of marriage at all costs.
These include the fear of social ostracism, pressure to continue doing so to maintain the family’s honor, and lack of infrastructure to lend support. This deters most women from reporting their experiences of marital rape. For those in the orthodox sections of India, legal recourse is something discouraged altogether from being pursued.
Statistics and Evidence of Marital Rape in India
Although the exact statistic on marital rape is not quite easy to know, various reports and surveys illustrate the extent to which sexual violence is perpetrated on married women within India. From the National Family Health Survey-5, conducted between 2020 and 2021, approximately 12% of those women aged between 15 to 49 experienced sexual violence committed by their spouses. However, it is important to note that these figures are likely an underrepresentation, as many women may not report marital rape due to fear of social stigma, legal hurdles, or a lack of understanding about their rights.
The National Crime Records Bureau (NCRB) also publishes annual data on crimes against women. While the NCRB does not have a specific category for marital rape, it reports on cases of “cruelty by husband or his relatives” and “dowry death”, both of which often involve forms of sexual violence or coercion within marriages. These categories, however, fail to capture the full scope of sexual violence within marriage.
A 2019 report by the United Nations estimated that one in three women globally had experienced physical or sexual violence by an intimate partner. In India, this statistic is likely to be even higher, considering the societal stigma surrounding reporting marital rape.
One of the most important studies on sexual violence in India was conducted by the Rajasthan State Commission for Women in 2013, which found that 42% of women in Rajasthan had faced some form of sexual violence by their husbands. This statistic reflects the widespread nature of the problem in certain regions of the country, further underscoring the need for a legal framework that criminalizes marital rape.
High-Profile Cases and Legal Precedents
Several high-profile cases have highlighted the urgency of addressing marital rape in India. In 2013, the case of R v. State of Haryana brought attention to the issue of sexual violence in marriage. The case involved a woman who was subjected to repeated sexual assault by her husband. The court ruled in favor of the woman, acknowledging the abuse and emphasizing that marital status should not be used as a shield for sexual violence. Although the ruling was significant, it did not lead to any legal reforms on marital rape.
In 2016, the Delhi High Court heard the case of a woman who had been subjected to repeated sexual violence by her husband. The court observed that consent is crucial in any sexual relationship and that the notion of consent should not be discarded merely because the couple is married. The court’s remarks were seen as a step forward in recognizing marital rape as a serious crime, but the legal framework remained unchanged.
Another significant case was in 2021 when a woman from Kerala complained against her husband for marital rape. The woman alleged that the husband had made her perform sexual acts against her will for an extended period. The Kerala High Court ruled in her favor and asked the police to register a case of rape. This was one of the rare instances where marital rape was explicitly recognized as a crime by the judiciary, though it remains an exception rather than the rule.
The Global Debate: Why India Lags Behind
The global debate surrounding marital rape has evolved over the years, with many countries criminalizing it in the late 20th and early 21st centuries. Nations like the United States, Canada, Australia, and several European countries have enacted laws that explicitly criminalize marital rape, reflecting a broader understanding of sexual consent and autonomy in marriage.
India’s legal system, however, remains entrenched in patriarchal norms, and reforming the law on marital rape is a contentious issue. Opponents of criminalizing marital rape in India often argue that it would disrupt the sanctity of marriage and could lead to the misuse of legal provisions by women seeking divorce or financial gains. They also argue that criminalizing marital rape would be difficult to implement due to the complexity of marital relationships and the lack of reliable evidence in many cases.
On the other hand, advocates for the criminalization of marital rape argue that it is essential to recognize and address the issue of consent within marriage. They emphasize that marriage should not be seen as a license for sexual violence and that the legal system must provide a framework for protecting the dignity and autonomy of women within marriage. Women’s rights activists argue that the current legal exception in India perpetuates gender inequality and enables abuse within intimate relationships.
The Path Forward: Legal and Social Reforms
Significant legal and social reforms have to be implemented for India to further develop in the realm of marital rape. The reforms must consist of:
1. Criminalization of Marital Rape: The Indian Penal Code must be thoroughly reviewed and sex crimes exceptions involving marital rape must be eliminated. The government should table legislation that would explicitly criminalize marital rape as a commitment of India towards women’s rights.
2. Public Awareness Campaigns: The most prominent part of addressing marital rape is public awareness regarding the importance of consent in marriage. Campaigns should be made to break cultural myths surrounding sexual violence in marriage and promote gender equality.
3. Support Systems for Survivors: Survivors of marital rape need legal support, counseling, and shelter. The government needs to invest in creating safe spaces for victims of domestic violence and marital rape.
4. Training for Law Enforcement and Judiciary: Policemen and judges need specialized training to handle cases of marital rape sensitively and effectively. This would ensure that victims are not re-traumatized during legal proceedings and that the justice system is equipped to handle such sensitive cases.
5. Public Discourse and Gender Norms: A shift in the discourse surrounding marriage and gender roles is necessary. By challenging deeply ingrained stereotypes about women’s roles in marriage and society, India can create a more egalitarian and just society for all individuals.
Conclusion
Marital rape in India remains a deeply controversial and unresolved issue, with societal, cultural, and legal barriers impeding progress. While statistics and cases show the widespread prevalence of sexual violence in marriage, the lack of legal recognition of marital rape perpetuates an environment of impunity for abusers. The legal framework must evolve to address this grave issue, and the societal mindset must shift to recognize the fundamental right of women to live free from sexual violence within marriage. Only through comprehensive legal reforms, public education, and support for victims can India make significant strides toward ending marital rape and ensuring justice for women.
