MARITAL RAPE: PRACTICE OR IGNORANCE?

Reading time : 8 minutes

(Mother called her daughter after a month of her marriage)

Mother: Hello!

Priya: Hey! mom

Mother: How are you, my lovely daughter?  How’s everything at your place? Are you happy? Oh my god! I’m so excited to know everything. Ok ok, you can speak now. I’m quiet. Tell me. Priya: (remained silent)

Mother: Why are you not responding? Is everything all right?

Priya: Mom, (she paused for a moment)

Mother: Yes, what happened?

Priya (drew in a long breath and spoke), “I’m just not sure what to do anymore.”

Mother: What to do anymore? What are you saying?

Priya: Jatin has raped me, mom, (she started crying)

Mother: Have you lost your mind? He is your husband,” she huffed

Priya: Yes mom, I know he is my husband but my consent was not taken. He forced me to have sexual intercourse with him, against my will and it’s rape.

Mother: (Flabbergastingly), What are you talking about? Are you going to file an FIR? It happens in a relationship. Please try to understand

Priya: Mom, I have not lost my mind and I don’t care about anything. I’ll file an FIR against him. Yes, I’m his wife but he has no right to touch me without my consent.

Mother: I’m just worried about what will happen next and how that will impact the whole family.”

Priya: Do you still care about his family? Mom, I’m your child and you have to support me. I’m coming back home tomorrow.

Mother: Daughter, I’m there for you. I’ll support you. We will file an FIR against him, Don’t worry, and please stop crying.

( Call got disconnected after a while)

ABSTRACT: Pati (husband) is regarded as ‘Parmeshwara’ (God) in Indian civilizations, with ultimate authority over his wife. When her husband returns home from a day’s work, it is her responsibility to delight him. As a result, consent plays no part during sexual intercourse. Being raised in a patriarchal environment, girls are taught to revere males, follow them, that they are stronger than you, you should not compare yourself, you are inferior, and so on, who begin to assert their autonomy over females, oppress her, mistreat him, molest her, etcetera. Flabbergastingly, As per the National Crime Records Bureau’s Crimes, 2019 report[1], every 19 minutes, a woman is raped in India. According to the World Health Organization, over 30% of women have been subjected to physical or sexual abuse by their spouses. However, statistics related to marital rape are not available because 95% of cases go unreported. The objective of adding a conversation with an article was to understand the plight of a woman, who has been raped by her husband and, her family members denied the fact with some ridiculous logic or did not support her. This research work is aimed at the different aspects of marital rape in India, as well as the legislation in other nations that address marital rape as a heinous offence. Even though marital rape is not a crime in India, intense debates are taking place in the Delhi High Court to criminalize it. ,

Concept of ‘Rape’ and ‘Marital Rape’:-  Rape is expounded under Section 375 of Indian Penal Code, 1860[2] which states that a man is said to commit rape if he penetrates his penis, any object, or any part of a body other than the penis into the vagina, urethra, or anus of a woman, or puts his mouth into the vagina, urethra, or anus of a woman, or makes her do so with him or any other person, under the circumstances described below:

  • Against her will.
  • In the lack of her consent.
  • With her consent when it has been obtained by placing her or any other person linked to her in fear of death or injury.
  • With consent acquired under the mistaken belief that the guy was the person to whom she was legally married.
  • When consent is provided due to insanity or intoxication with any stupefying or unwholesome drug.
  • When the female is a minor, whether or not consent is provided.
  • When she is unable to give her permission.

Marital rape is specified in Exception 2 of Section 375, which provides that sexual intercourse or sexual acts between a husband and wife is not rape unless the wife is under the age of 15. It shields the husband from rape charges.“Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape.” [3]After entering into marital relations, a wife is believed to provide unwavering consent to have intercourse with her husband. Recently, a bench of Justices A. Muhamed Mustaque and Kauser Edappagath, Kerela High Court passed an order recognizing Marital Rape as a form of cruelty and a ground for divorce[4]. Marital rape is a violation of Articles 14 and 21 of the Indian Constitution. Article 14 provides equal rights to men and women whereas Exception 2 of Section 375 IPC, 1860, creates two classes of women depending on their marital status and safeguards men from actions committed against their wifes. In accordance with the Article 21 of the Indian Constitution, every person has a right to live his life with dignity and also ensures liberty, bodily integrity, privacy of a person, marital rape is the infringment of artcle 21[5]. Supreme Court held that sexual harassment of a woman at work would be a violation of her fundamental rights to gender equality as well as the right to life and liberty guaranteed by Articles 14, 15, 19, and 21 of the Indian Constitution[6]. In the case of State of Karnataka v. Krishnappa[7] Supreme Court held that apart from being a demeaning act, sexual assault violates a female’s right to privacy and sanctity and also non-consensual sexual intercourse constitutes physical and sexual violence. Section 498A of the Indian Penal Code, 1860, prohibits sexual harassment against wives. This section specifies cruelty to married women by her husband and his family, as well as the 2005 Protection of Women from Domestic Violence Act (PWDV). It covers different types of abuse against women, including physical, sexual, mental, and emotional assault, but these clauses does not make marital rape an offence. In thr case of Independent Thought v. Union of India, 2017 SCC 1222, The Supreme Court partially overturned Exception 2 of Section 375 of the Indian Penal Code, 1860, which prohibited marital rape for minor under the age of 18.

 History of Marital Rape in India

Forceful and non-consensual sexual intercourse was not always considered as marital rape because relationsip between a husband and wife was pious and the interference of third party into it was discouraged. Also, women were considered as property of their husband with which they could do as they pleased under common law. It was contemplated that marriage gives autonomy to a husband to have sexual intercouse with her either consensual or non-consensual. The implied-consent hypothesis holds that a married couple has consented to sexual intercourse with each other and it prohibited prosecution of spouse for rape. Rape laws were enacted in accordance with the Indian Penal Code, 1860, which came into effect during the early British Raj period. However, amendments are made in rape laws with the passage of time. The exception of Section 375 was derived, in part, from the ‘Doctrine of Coverture,’ which asserted that a woman’s legal rights and obligations transfer to her husband at marriage, since husband and wife are considered one person in the eyes of the law.  husband acts as her wingman and protector, and her decisions are also influenced by her husband. Sir Mathew Hale addressed in his book “History of the Pleas of the Crown” that the husband cannot be held accountable for rape committed by himself against his legitimate wife since the woman has surrendered herself up to her husband in this manner by mutual consent and contract, which she cannot renounce. These views were eventually questioned by the general public, and it was discovered that a man cannot be an absolute master over his wife; these ideologies were incompatible with contemporary and civilised culture. The doctrine of coverture was repealed in the late nineteenth century. In 2013, The UN Committee on the Elimination of Discrimination Against Women (CEDAW) proposed that marital rape be criminalized in India.[8] The Justice Verma Committee was formed to suggest changes to the Criminal Law that would allow for faster trials and harsher punishment for people accused of sexual assault against women. On January 23, 2013, the Committee submitted its report. It was suggested that the exception of Section 375, Indian Penal Code, 1860 should be deleted. It was suggested that any non-consensual sexual penetration should be included in the definition of rape. It is also immaterial what the relationship between the accused and the victim is.[9]  The 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill, 2012 (“Parliamentary Standing Committee’s Report”) It was established that aggrieved women might seek redress in court for cruelty and sexual assault under any legislation other than marital rape. If the marital rape is prosecuted, it would stress the entire family system, and the Committee may wind up doing more harm than good.”

Causes and Consequences of Marital Rape in India

Dowry, dominance, dissonance between partners, illiteracy, and other factors are key causes of marital rape. Men consider their autonomy over their spouses and compel them to engage in sexual intercourse. A man’s ego suffers when a woman retaliates. When animosity between the couples intensifies, the husband may attempt to assert himself by forcing himself on the wife. Marital rape is also a consequence of domestic violence. When a man’s wife does something wrong, he would use rape and sexual assault as a weapon to punish her. Nowadays, drug-facilitated sexual assault is more common in household settings, when a spouse becomes comatose after consuming alcoholic beverages or other narcotics and forces his wife to indulge in sexual activities. Sexual violence has been linked to childhood environment that are physically confrontational, emotionally rude and dismissive, and marked by conflict for inadequate resources. For example, sexually aggressive conduct in young males has been connected to witnessing familial violence as well as having emotionally distant and callous fathers.[10] Men raised in households with strong patriarchal systems are also more susceptible to become violent, rape and use sexual coercion against women, and harass their intimate relationships than men raised in more egalitarian environments.They have extreme self-hatred in addition to low self-esteem. They perceive themselves as failures, so when their wives reject them in bed, it reminds them of their own shortcomings, which irritates them. Marital rapes may become more prevalent in societies that embrace toxic masculinity or individuals who are hypermasculine. A 1990 researcher revealed that “macho” males were more inclined to believe in “wifely obligations” and that deploying force in such situations is permissible.

Marital rape occurs regularly, causing abused women health issues, agony, and grief. Children in families where marital rape occurs frequently endure from the psychological impacts of witnessing violence, which can damage their mothers’ capacity to care for them. Depression, anxiety, emotional discomfort, and suicidal thoughts are among mental health consequences of marital rape and other types of abuse by spouses. Because it is socially acceptable, marital rape is one of the most under-reported violent crimes. Some battered women are scared to disclose the abuse because they rely financially on their husbands for their sustenance and the maintenance of their children. Others are reluctant to stand up for fear of being humiliated. Women who have been raped by their spouses go through a lot of agony, embarrassment, and anguish. Marital rape causes public health issues such as poor mother and infant health, re-infections with Sexually Transmitted Infections (STIs), and long-term HIV infection risk. Individuals are unable to take control of their own sexual and reproductive health as a consequence of marital rape. When men refuse to use contraception, forced sex and the accompanying sexually transmitted illnesses can cause mother and child medical problems.

Marital rape laws in other countries:-

As of 2019, marital rape had been criminalized in 150 nations, either as a result of a court ruling or as a result of anti-rape initiatives. The rationale for the non-criminalization of marital rape in other nations was a derivation of the Latin term ‘rapere’, which meant ‘to steal’ or ‘carry off’. It was further construed that it is impossible to steal anything which belongs to you. Likewise, a husband, cannot rape his wife since he ‘owns’ her. Lord Matthew Hale, a British jurist, observed in 1736 that “the husband cannot be guilty of a rape perpetrated by himself against his legitimate wife, for by their joint consent and contract the wife has surrendered up herself in this manner to her husband, which she cannot withdraw.”[11] India including China, Afghanistan, Algeria are such 36 countries that have not yet been recognized and criminalised. In a landmark case in the United Kingdom, R v. R, a husband defended his ‘conviction for attempted rape’ on the grounds that marriage conferred irreversible permission. His argument was rejected, and the court found him guilty because the exemption to marital rape is a “legal fiction under common law.” The court ruled that a person’s connection to the other party is immaterial in determining whether or not he or she should be penalised for rape. Countries’ attitudes about marital rape have shifted due to a variety of factors, including the recognition of women’s human rights and the global development of the institution of marriage, in which women today have more autonomy and respect than ever before.

History and Recent argumentation concerning marital rape:-

Previously, in the case of Sakshi v Union of India [1999 (6) SCC 591], petitioner Shakshi filed a petition to alter the different provisions of the Indian Penal Code, 1860 concerning’sexual abuse’ against women and suggested that the exemption of marital rape be removed. His petition was denied on the grounds that removing the exemption for marital rape would be an undesirable intrusion into the marital relationship. Various other petitions were filed by the NGOs, All India Democratic Women’s Association (AIDWA) as well as individual petitioners. The Central Government argued in an affidavit filed in 2016 that criminalizing “marital rape” would “destabilize the institution of marriage and become a weapon for husband harassment.” Dr. Shashi Tharoor also introduced a private bill in the Lok Sabha Bill No. 255/2018 titled ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018, it was suggested in a bill to amend Exception 2 of Section 375 of IPC, 1860 and to criminalize marital rape and broaden the ambit of a woman’s permission to participate in sexual intercourse or sexual actions, even within the context of a marriage. The Delhi High Court has been evaluating petitions challenging Exception 2 of Section 375 of the Indian Penal Code, 1860. The petitioner NGOs contended that the exemption for marital rape violated Articles 14 and 21 of the Indian constitution. Rebecca John, Amicus Curiae, submitted that expectations of sexual relations in marriage do not constitute irreversible consent by the woman to have sexual intercourse and that no other legislation, including Section 498A of the Indian Penal Code, 1860, can be invoked as a remedy for marital rape.

Senior Advocate Colin Gonsalves, representing the petitioner, appeared before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar stated that marital rape is one of the most heinous forms of domestic violence which are neither reported nor analyzed. Men Welfare Trust, on the other hand, contended that the exemption for marital rape is predicated on the intelligible differentia of marriage and that reviewing it would place an undue burden on the judiciary. Wives would seize the opportunity, and fraudulent complaints would be publicised.

Conclusion

Marital rape has persisted in culture for as long as marriage has been. However, it has not been recognised, and if it has been acknowledged, it was rejected by people. Not only perpetrators, but even victims, were reticent on the issue. The exception of marital rape has caused a lot of controversy these days. Laws must be modified with the passage of time in order for society to function properly and to ensure absolute justice to its citizens. The causes of marital rape are complicated and must be investigated. People are concerned that false cases of marital rape will be reported and innocent men would be imprisoned, but the facts and evidence of the case can be properly scrutinised and justice will prevail. The removal of the exclusion would have a number of consequences, including what would be considered’marital rape.’ What actions would be considered an attempt to constitute marital rape? It is high time for the Indian criminal justice system to be changed, and new laws to be enacted.


[1] https://ncrb.gov.in/en  You visited this page on 2/2/22.

[2] https://indiacode.nic.in/handle/123456789/2263?sam_handle=123456789/1362, IPC, 160 Section 375.

[3]https://www.thenewsminute.com/Landmark-judgment-kerala-hc-recognises-marital-rape-ground-divorce

[4] https://www.hindustantimes.com/cities/delhi-news/marital-rape

[5] Suchita Srivastava & Anr vs Chandigarh Administration on 28 August, 2009

[6] VISHAKA & ORS. V STATE OF RAJASTHAN & ORS (1997) 6 SCC 241

[7] State Of Karnataka vs Krishnappa on 23 November, 1993, ILR 1994 KAR 89, 1993 (4) KarLJ 680

[8] https://www.refworld.org/publisher,CEDAW,,PER,,,0.html, Last Updated: Monday, 14 February 2022, 19:35 GMT

[9] https://www.mha.gov.in/MHA1/Par2017/pdfs/par2020-pdfs/rs-11032020/1959.pdf

[10] Types of Sexual Violence”. Rape, Abuse & Incest National Network.

[11]  https://blog.oup.com/2017/11/marital-rape-global-context/

Author: Roshni Agarwal, Amity Law School, Noida

Editor: Kanishka VaishSenior Editor, LexLife India

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