Marital rape: sexual act by husband on his wife which is not a crime in India!

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One rape every 16 minutes was the rape statistics in the year 2020! What is rape? A man is said to commit rape on a woman without her consent or against her will, forcefully having sexual intercourse. Every day looking into the newspaper we find at least one or two girls or women being raped. Are there legislations for these? “Section 375 of the Indian penal code 1860 says, Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine”. Rape is being discussed every day via news, social media platforms, general debates in schools and educational institutions. But why is that still “marital rape” has not come out to the light? When I spoke to my mom about marital rape, the first question she asked me was, “what was that?”. This question here arose because it is not yet been spoken around the country and the awareness about marital rape is very low. Is marital rape here a common thing because we all consider the institution of marriage as a free license to unlimited and non-consensual sexual acts?

Marital rape is the sexual act committed by a husband without his wife’s consent and/or against her will. He may use physical force or threaten, causing the woman to fear that physical force will be used if she resists. Some researchers said that, “husband rapists conclude that they rape to express fear, anger, to reinforce power, dominance, and control over their wives and families. 

The types of marital rape include:

  1. Force only rape – it describes a husband who uses threats and violence only to the degree necessary to coerce sex. This usually happens in relationships where violence is verbal and usually where violence occurs in sexual interactions.
  2. Battering rape – when beatings and rape are combined, it is known as battering rape. Rape occurs as a continuation of the physical assault and in some cases, physical violence continues during sex and the sexual act is very violent.

   3. Obsessive rape – this is the sadistic form of rape. Here the abuser seems to be obsessed with sex and the act itself is violent.

 India is one of the 36 countries which still haven’t criminalized marital rape leaving many women trapped in toxic marriages. But there were many petitions before the courts in India to declare marital rape as a criminal offense. Unfortunately, they all have been rejected. A petition was filed by a woman regarding marital rape, but the apex court dismissed it on the ground that law can’t be changed for one woman. And in  “Arnesh Kumar vs the State of Bihar”, it was held that criminalizing marital rape will collapse marriage and faith in this institution.

The constitution provides article 14 and 21 which provides equal rights and protection of rights to all of its citizens and protection of personal liberty and life of all. But the exception in section 375 of IPC is violative of fundamental rights of equality and protection of women. The exception being: ” sexual intercourse by a man with his wife, the wife not being under fifteen years of age is not rape”. This exception is solely based on her marital status and section 375 violates the rights of the married women who are victims of rape and refrain them from getting justice and being treated equally with their husbands. If we look into the precedent cases such as Puttaswamy v Union of India” or the State of Maharashtra v Madhukar Narayan”, it was ruled that sexual privacy is a fundamental right and a forced sexual act is a clear violation of this right. From this, we could say that the supreme court recognizes the sexual right of all women regardless of whether married or unmarried but which is being violated through the non-legislation or not criminalizing marital rape!

Back in 1860, when the British colonial rulers were in India, they mentioned several exemptions- situations in which sex is not considered as rape and one such exemption is “by a man with his wife who is not a minor”. It is implied in the law that consent is implied in marriage and the wife should accept it whenever needed. But this has been challenged by many people and therefore Britain outlawed the law. But the irony here is, India which was a colony of the British still follows the same law and hasn’t yet criminalized marital rape.

Contradicting judgments of courts

Recently, justice NK Chandravanshi of Chhattisgarh high court has said that forced sexual intercourse between a legally wedded man and woman is not rape, even if it was against her consent or wishes. So in this case, the woman accused her husband of unnatural sex and raping her with objects. The judge said that the man could be tried for unnatural sex but cleared the allegations of a much serious offense of rape since our law doesn’t recognize marital rape. The Kerala high court on the contrary observed that marital rape is a valid ground for seeking a divorce. But why this contradiction? Many netizens have been outraged after the judgment by Chhattisgarh high court and have shared their opinion. Is it because our countrywomen still live at the mercy of men? Many netizens criticized that woman by tweeting such as what kind of wife would complain of marital rape? and there must be something wrong with her character. Well, victim-blaming is not new in India or around the world, but no one deserves to be raped and rape is never a victim’s fault. So, marital rape occurs when the husband believes that he owns his wife and her body. Well, the law is a clear violation of women’s rights, and the advantage it provides to men is unfair.

What could be done

India has always spoken of being modern but if we go underneath, you can see the real face. Women remain as the property of her husband. Marital rape is not criminalized in India not because a women’s right is violated, but because she’s the property of another man.

 In a country like India where a woman gets raped every 16 minutes and a married woman being raped is 17 times more, there is a need for bringing legislation against marital rape. Justice Verma committee in the 42nd law commission report urged criminalization of marital rape but in the present only civil remedies under the domestic violence act of 2005 are available.

Even if the perpetrator is married or unmarried, aged or young, the fact that he raped will not change. And irrespective of the victims’ age, rape is always a rape if married or unmarried. The trauma caused by rape or harassment can never be explained in words. A woman who is raped by her husband, sleeping and spending the rest of her life with him is horrific.

Friends and family can be great sources of help and support. Speaking it to your close ones can be a relief and you could even find a solution for the issue. Support groups can be very helpful, by allowing victims to talk with other people dealing with abuse. Hotlines, should offer immediate support and provide reference to any social service agencies. Free or low-cost legal services for an emergency can be of great help.

Educating and spreading more awareness about marital rape is very essential even in modern India. Many women don’t even know they are being raped. Education about consensual sex must be given to all people. This may reduce this offense. And our judicial system should provide faith and trust to all women who come up with this issue. Even if it is one woman or many, it doesn’t matter. What matters is that no victim in our country should be avoided from getting proper justice. The judiciary should recognize marital rape as an offense and this is the time where Indian women raise their voices against marital rape and break the stereotype against marriage.

Author: SUBA NAKSHATRA.V, SASTRA DEEMED UNIVERSITY

Editor: Kanishka VaishSenior Editor, LexLife India.

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