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Marital Rape-A Crime Committed By Our Own

An act committed without the consent of another person is an offence (sec 40 of IPC) . Similarly a sexual intercourse with any girl is considered “RAPE” (Sec 375 , 376,376 A-E” of IPC for which our Legal system has harsh punishments ranging from 20 years to L.I and rarest but not the least is death penalty ( Case Law:- Mukesh Kumar & Delhi N.C.T.

But there is another type of RAPE Which the society does not considers as a crime but is of grave nature and resembles the criteria which are used to considered an act as rape.

This Offence Is Marital Rape. Which is not a crime both in the eyes of the society and family of the victim as well as the culprit. The law does not treat marital rape as a crime a bit but has given it some place under IPC section 375

Exception 2. A rape is considered as a marital rape when it is a forceful sexual intercourse without the consent of the wife by his own husband. Honourable Supreme Court of India has given some grounds and types of marital rape in its judgements from time to time.

The legal system must be forced to accept rape within marriage as a crime. Further, women themselves must break free of societal shackles and fight for justice. They must refuse to comply with the standards applied to them as the weaker sex. This paper is an attempt to attract the attention of the world towards the fallacies of the legal world and legal world towards the concept of marital rape and the suggestions regarding the complete termination of marital rape from India.

Social Stigma

A marital rape is not a crime in the eyes of the society because according them it is their personal matter and should be solved by them and it should not be intervened by the society and neither of administration’s.

Types of Marital Rape

The following are the kinds of marital rape are identified by legal scholars as generally prevalent in the society. These are of mainly 3 types
  1. Battering rape:

    In a battering rape a women experiences both physical and sexual violence in the relationship with her spouse and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the spouse wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

  2. Force-only rape:

    In what is called Force only rape use only the amount of force necessary to coerce their wives; battering rape may not be characteristic of these relationships. The assaults are typically when the woman has refused sexual intercourse with her spouse.

  3. Obsessive rape:

    Other women experience what has been labelled as obsessive rape. This type of marital rape involves violence an d aggression from her own husband only.

Position of Marital Rape In Other Countries:
  1. U.S.A:

    In United States of America researchers estimated that 11 to 15 % of married women undergoes the trauma of rape in marriage. When researchers examined the commonness of different types of rape, .Even after continuous happening of this crime this crime was not considered as a crime Until 1970 but after that this crime was being started considered as a crime .The general rule was that a husband could not be convicted of the offence of raping his wife as he is entitled to have sexual intercourse with his wife, which is implied under the contract of marriage. But in 1993, marital rape became a crime in all fifty States.

  2. England:

    In England before it was considered as a man could not have been held to be guilty as a principal of rape upon his own wife, for the wife is in general unable to withdraw the consent to sexual intercourse, which is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in the year 1991When The House of Lords held in R. v. R. Ruled out that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse against her will was bygone and offensive common-law fiction.

  3. India:

    A matter between a husband and wife. This is what a society’s interpretation or we can say perception regarding marital rape in India. In the absence of a law, there is no data on the number of marital rapes cases being reported. “Authorities don’t have a documentation because police don’t record the complaints and the data will only be recorded when it will become a Law.

    In Saretha V. T. Venkata Subbaih case, judiciary held that, rights and duties in a marriage, is like a creation and dissolution and unlike the term of private contract between two sound individuals. The right to privacy is not lost by mere marital Association. Thus is no punishment for marital rape despite of existence of a strong judicial system there is no remedy available to her despite of existence of such strong institution

Role of Judiciary:

The judiciary plays a vital role in all the matter be it a minute act of theft or dacoity so it is of no difference in the matter concerned with the marital rape. The judiciary has played a vital role in the matter of marital rape by giving some judgements which have cleared the meaning of marital rape.

Sakshi v. Union of India

The honourable Supreme court of India has recognised the inadequacies regarding the law relating to rape and had suggested that the legislature should bring about changes in the law.

The Judicial decision of Queen Empress v. Haree Mythee, it was held that, the wife over the age is of 15, then the rape law does not apply in that situation. In this case the husband was punished because wife was of 15 years only.

Kerala High Court in the matter of Sree Kumar v. Pearly Karun, held that, the wife does not live separately with the husband under the Judicial separation and being subject to sexual intercourse without her will the act does not amount to a rape. Hence, it was held that, the husband was not found to be guilty of raping his wife though he was de facto guilty of doing or committing the act.

Suggestions for criminalizing the marital rape cases and to completely eliminate this heinous crime from our society:
  1. Proper penal sanctions should be made regarding marital rape ranging from 7 years to 10 years or Life imprisonment in the rarest cases (such as an act leading to a vegetative state of the victim or the death of the victim.)
  2. An awareness campaign should be launched by the both central as well state legislature that marital rape is a crime and should be reported.
  3. Strong yet efficient method should be introduced while dealing with the cases of marital rape.
  4. Cases should be tried in a fast track court so that justice should be served as soon as possible.
  5. The woman should be liable for the compensation when the husband has been proved guilty until and unless she remarries.
  6. Wife shall be provided justice at no additional cost.
Marital rape is a crime and should be criminalised as soon as possible because a rape is rape because a women is not an object to be used for own personal enjoyment .If we really want to develop and encourage equality of gender so crimes like these should be stopped because when a woman is not safe at her own home then then how can she be safe at outside of her home in the so called dramatic et developing society?. Thus laws should be made and criminalised as soon as possible. 

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