Marital Rape: The Imperative for Criminalization of Sexual Assault within Marriage 

AUTHOR: MUSKAN PARASHAR, A STUDENT AT MODY      UNIVERSITY                                      

ABSTRACT:

Rape is the most serious crime against women. It is defined in section 375 of the IPC, which states that rape occurs “without the consent” and against the victim’s will. However, marital rape is a taboo subject in Indian households, as it is not specifically mentioned in any statutes or criminalized. The IPC only refers to a man’s having sexual relations with his wife when the wife is under the age of fifteen. What about other married women? Does this violate someone’s fundamental rights? and why is it still considered upon to rape a spouse? The idea that a husband cannot be held responsible for raping his lawful wife because the woman gave herself up in the marriage contract and cannot take it back (the Sir Matthew Hale consent theory) is the reason given by scholars. They also frequently point to norms of society, cultural and traditional beliefs, and the sanctity of marriage as justifications for keeping marital rape legal. They argue that making marital rape illegal might potentially undermine the institution of marriage, violate people’s right to privacy, and lead to a legal maze within the family unit. The article indicates the international viewpoint on marital rape by using comparative examples from nations that have criminalized marital rape. It also focuses on the history of criminalizing marital rape and how India has been moving towards criminalizing it. It examines the experiences of many countries, looking at how legal changes affect cultural perceptions, the judicial system’s ability to assist survivors, and the prevalence of marital rape in general.

KEYWORDS: Consent, Criminalization, Marital rape, Marriage, rape

                                       INTRODUCTION 

A report provided by the NCRB in 2021 claims that, on average, 86 incidents of rape are reported per day. Rape is one of the most horrible crimes against women, and its seriousness cannot be emphasized. Section 375 of the Indian Penal Code (IPC) defines rape in the Indian legal system as having sexual relations with a woman without her consent. Marital rape, however, is an important problem that is noticeably excluded from this law’s jurisdiction. Non-consensual sexual actions performed by a spouse against their partner inside the boundaries of marriage are referred to as marital rape. Marital rape is classified as a type of sexual abuse and domestic violence. Although having intercourse within marriage was always thought to be a right of the couple, doing so without the consent of the other is now frequently considered rape in many parts of the world and is becoming more and more illegal. However, some more conservative communities repudiate it.

Rape that occurs when the offender is the victim’s husband is referred to as marital rape. The definition of rape, which is defined as sexual contact or penetration without consent, does not change. Therefore, demonstrating the absence of consent is a necessary component of proving rape as a crime. It is frequently the victim’s responsibility to demonstrate the absence of consent. In certain situations, such as when a minor is involved, it is assumed that no consent has been given because the law assumes that minors are incapable of giving consent for such acts of sexual misconduct. However, there are also situations in which consent is taken for granted. This assumption frequently arises when there is a marriage between the offender and the victim. The concept of marital rape becomes incompatible in such circumstances.

Only fifty-two countries have adopted laws that legally recognize marital rape as a crime. Legislation and society do not consider marital rape to be a crime in many parts of the world, including India. Even in countries where rape has been legally recognized as a criminal offence with prescribed punishments, the application of the law is suspended in cases where the victim and the perpetrator are married. It’s commonly referred to as the “marital rape exception clause.”

                                              HISTORY

Rape was traditionally viewed as more of a property crime than a crime against an individual. In the past, rape was not seen as an infringement of a woman’s consent or physical autonomy, but rather as an offence against the property rights of a husband or parents. According to this concept, the husband will not be prosecuted for the crime of rape because the woman is his property. A seventeenth-century English jurist and former Chief Justice of the Court of King’s Bench in England, Sir Matthew Hale is acknowledged for establishing the doctrine of marital exemption to rape. According to this theory, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, because by their mutual matrimonial consent and contract the wife has given up herself in this kind to her husband, which she can never take back.” It was implied that a husband would no longer be held responsible for raping his wife once they were married.

                                    RAPE LAW IN INDIA 

The first case that had been bought in Tukuram V State Of Maharashtra (the Mathura rape case) involved a girl who was raped by police officers. The supreme court ruled that since the girl did not seek help, the rape was carried out with her “consent,” and the court further added that since the girl is accustomed to having sexual activity, she must have initiated the act. This case changed the laws regarding rape, Due to criticism of the handling of rape victims, this case led to the addition of 376(a) to (d), a shift in the burden of proof from the victim to the accused, and the addition of 114(A) to the Indian Evidence Act. Despite this, the Nirbhaya rape case, a vulnerable occurrence that occurred in Delhi, was The 2013 Justice VS. Verma the Committee passed the Criminal Amendment Act, which expanded the definition of rape and proposed making marital rape a capital crime that violates a person’s right to life.

                                  ERROR IN INDIAN LAW 

Marital rape is not consider as a criminal offense in India. To more effectively protect the rights of women granted by the Constitution who are victims of abuse of any type occurring within the family and other connected situations, the Indian Parliament passed the Protection of Women from Domestic Abuse Act, 2005.However, it was unable to include marital rape in its scope. According to data from the United Nations Population Fund, approximately 376 million women worldwide—nearly one in three—have experienced physical and/or sexual intimate partner violence, non-partner sexual violence, or both at least once in their lives (30% of women aged 15 and older); the 172nd law commission report recommended that the exception provided in section 375 of the IPC be invalidated. It is suggested that the fact that he is the victim’s spouse not be considered a legally recognized extenuating circumstance.

 and Justice VS Verma committee, which brought about a substantial modification to the Criminal Act of 2013, additionally suggested that marital rape be made a crime and that marriage should not be a mitigating circumstance. The concept of marital rape is not entirely ignored by the IPC; it does, however, refer to it by implying that if the wife is older than 15, it will not be regarded as rape. likewise, there is discrimination against married and single girls who are younger than 15 or 18 years old, and every statute—the Juvenile Justice Act of 2015, the Protection of Children from Sexual Offence Act of 2012, the Prohibition of Child Marriage Act of 2006, etc.—considers a “child” as any individual who is younger than 18 years old. This raises the age from 15 to 18 in the Independent Thought V Union of India. In the case of Hrishikesh Sahoo v. State of Karnataka, Justice M Nagaprasanna ruled that the husband could not rely on the protection of exception listed under Section 375 of the Indian Penal Code (IPC) in cases where there were “particular facts and circumstances” because the exemption was not “absolute.” 

                   JUDICIAL STAND ON MARITAL RAPE

Following a major shift in the legal age of consent, certain rulings have strengthened the case for making marital rape a crime.

• In RIT Foundation v. Union of India, Justice Rajiv Shakdher declared that the marital rape exception violates articles 14, 15, 19,(1)(a), and 21; however, Justice Hari Shankar disagreed, saying that the exclusion is lawful.
• The phrase “sexual assault” or “rape” was added to rule 3B(a) for the MTP Act behavior This included when a husband raped or sexually assaulted his spouse. As a result of these two rulings, there is now optimism that marital rape may be criminalized. 
• In Nimeshbhai Bharatbhai Desai v. State of Gujarat, the court rules that a married woman cannot file a rape lawsuit against her lawful husband. Nevertheless, the court emphasised that regardless of a woman’s marital status, the law must protect her right to bodily autonomy and integrity. It is imperative that we incorporate the concept of “implied consent” into the definition of marriage.
• Madhukar Narayan Mardika v. State Of Maharashtra And Another. The court ruled that nobody has the right to intrude on a woman’s privacy, even if she is a woman of easy virtue. Additionally, no one has the right to violate another person whenever they see fit. If someone tries to take her person against her will, she has the right to defend herself. She has an equal right to legal protection. Consequently, her evidence cannot be discounted just because she is a woman of simple virtue.

BILL-In addition to the fact that court cases have supported the idea of making marital rape illegal, Shashi Tharoor introduced a bill to criminalize marital rape. Titled the Women’s Sexual, Reproductive and Menstrual Rights Bill 2018, the bill suggests eliminating section 375’s exception 2 and adding a proviso to the explanation. “Provided that the woman’s ethnicity, religion, caste, education, profession, clothing preference, entertainment preference, social circle, personal opinion, past sexual conduct, or any other related grounds shall not be a reason to presume her consent to the sexual activity.”

                                       CHALLENGES 

No matter the nature of the relationship, rape should always be treated as rape. The institution of marriage is the primary justification for not making marital rape illegal in India because the country views it as a tradition, custom, sacrament, etc. Former Chief Justice Depak Mishra stated, “I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.” However, this institution has changed over time, and many aspects of society are changing now (live-in relationships, the unconstitutionality of 377, same-sex marriage, the irreversible dissolution of the marriage bond, etc.). Since the Supreme Court has consented to consider appeals about marital rape, there would be consequences if this is carried out and marital rape becomes illegal. 

Consent Evidence- The Indian Evidence Act, Section 122, grants the privilege that no married person does not have to present evidence that was discussed during the marriage. Another concern with the evidence is “the ambit of consent” from the wife; there is a gap as to how the court will decide whether this is consensual or not. Generally, in cases involving violence against women, the court has presumptions. For example, the court generally presumes that if a woman dies unnaturally within seven years of marriage, it is presumed to be a dowry death. Thus, if marital rape is presumed to occur, the wife will likely make numerous false complaints.

False cases against the in-laws and husband- Due to gender biased laws and a lack of gender-neutral laws, women frequently file false lawsuits against their husbands and in-laws. The court noted that “currently, there are a package of five cases filed against the husband and the in-laws in the family and criminal courts under the Hindu Marriage Act and the protection of women from the domestic violence act”.

      RECENT CRIMINAL LAW BILL ON MARITAL RAPE 

Although the age of eighteen was extended in Independent Thought v. Union of India, the IPC remained unchanged. The new Bharatiya Nyaya Sanhita bill, which aims to replace the IPC, changed the age from fifteen to eighteen, but it said nothing about the exception for marital rape. Another change that the new bill focused on was if found guilty of engaging in sexual intercourse with a woman after making a false marriage commitment or pledging to marry her without meaning to do so, but not of rape, the offender faces a fine and a possibly ten-year prison sentence.

                                          CONCLUSION

Marital rape is still a contentious issue in India and around the world. India is lagging behind other nations in tackling this grave human rights violation, even as the international community has made significant progress in decriminalizing marital rape crimes. Decriminalizing marital rape requires a complicated balancing act between customs, religious convictions, and evolving ideas about personal freedom. Numerous nations that have decriminalized marital rape have witnessed the fact that legislative reform may influence public opinion and provide survivors with more power. Moreover, they highlight the significance of a comprehensive strategy incorporating education, awareness-raising initiatives, survivor support networks, and legal modifications. In India, the decriminalization of marital rape has faced numerous challenges. The procedure has been delayed by several things, including the notion that marriage is a holy institution, concerns about fake cases, and difficulties around the meaning and proof of consent. But the old structures of patriarchy are giving way to a growing understanding of personal liberty, equality, and decency. Even if the change is slow and frequently acknowledged with opposition, legalizing marital rape is a necessary first step towards providing survivors with justice and tearing down damaging systems of patriarchy.

The prohibition of marital rape is a reflection of society’s ongoing evolution and its commitment to upholding the autonomy, dignity, and well-being of every individual. It serves to reaffirm that consent is a basic human right that ought to be respected everywhere, even within the limits of marriage. In the end, criminalizing marital rape is a social statement about the value placed on equality, human rights, and the goal of creating a society that is more just and equitable than it is a legal one.