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Legal Realities: Marital Rape in India's Justice System

Marital Rape

Despite the sanctity associated with marriage and the expectation of mutual love and respect, the issue of marital rape remains a significant and distressing concern in India. Marital rape refers to any unwanted sexual acts of violence committed by one spouse i.e. the husband against the other i.e. the wife within the confines of marriage. "Marital Rape is where the husband forces himself on his wife to have sexual intercourse without her permission, and against her will, and still now India has not criminalized Marital Rape.

It is an irony that Rape is criminalized under Section 375 of IPC but Marital Rape is not. It is just the mentality of our society that stops the development of our country. Many countries have criminalized Marital Rape, but India has not. Unfortunately, the legal framework in India has historically not recognized marital rape as a criminal offense."

The Protection of Women from Domestic Violence Act of 2005, which includes physical, emotional, sexual, and financial abuse within marriage, is one exception to this rule. Nonetheless, marital rape is not expressly made illegal by this statute.

It is difficult to accept that in today's generation, it is still acceptable for a husband to sexually abuse his wife and it is still legal. As per the mentality of our Indian societies' wives are treated as if they are property, and the husband has rights over them. "Once married the wife must satisfy their husband's needs and their will, and here consent does not matter as it is their Patni Dharam to obey the words of their husband.

Many countries have criminalized Marital Rape, but not so in India." In India, marriage itself is called consent for post-marital sex, and the most important thing that differentiates forced sex is consent itself. In a nation, where the legislation of marital rape effectively grants impunity for the crime, married women in India are deprived of the equal protection given under the provisions of the Indian constitution.

Kinds Of Marital Rape

Marital Rape is of three kinds[1]:
  1. Battering Rape: "Women who encounter this kind of marital rape are subjected to many forms of abuse like sexual and physical abuse. In certain cases, the rape may occur after a physically violent incident in which the husband attempts to make apologies and forces his wife to have sex against her will. In other cases, the wife may be beaten during the sexual abuse. The victims typically fit into this particular category."
  2. Force-only Rape: Husbands only employ that level of force in this kind of marital rape because it is required to exert pressure on their wives. In these situations, abuse may not be a defining feature, and women who decline sexual relations are typically the targets of such attacks.
  3. Obsessive Rape: The most prevalent kind of obsessive rape is a violent assault that involves illegal sexual practices and/or cruel torture. Sadistic rape is another term for this kind of offence.

Views Of Justices Regarding Marital Rape

J.B. Pardiwala, J.- Justice J.B. Pardiwala, argued, "Marital Rape" in the case Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2017 SCC OnLine Guj 1386[2].

"He described Marital Rape as a disgraceful offense that has scared the trust and institution of marriage. The majority of the women population has faced the brunt of the non-criminalization of the practice. Marital Rape refers to unwanted intercourse by a man with his wife obtained without her consent with force, threat, or physical violence. This is a nonconsensual act by a husband towards his wife where she is abused sexually and physically, and this should be an offense, it should be criminalized."

Justice Rajiv Shekhar: Justice Rajiv Shekhar argued that "not criminalizing Marital Rape violates the provision of the Indian Constitution since it causes married women to be "denied bodily autonomy and agency which must be rectified."

Justice Hari Shankar - Justice Hari Shankar argued that a "cut and dry" strategy cannot be used in a married relationship. He argued that the state has no right to intrude on a married couple's private space and that consent is frequently granted for sexual intimacy even though it may not exist.

Justice Deepak Gupta: "Justice Deepak Gupta, argued that it's the right of a wife to say No to her husband, Martial Rape exception is Patriarchal and Archaic".

Constitutionality Of Marital Rape

In the recent case brought in Chhattisgarh's High Court, the High Court declared that a lady who accused her husband of having unnatural intercourse and raping her with objects was not credible.

The High court held that "sexual intercourse or any sexual act by a husband with his wife would not constitute rape even if it was by force or against her wish"

"The exemption of Section 375 of IPC states that "Sexual Intercourse of man with his wife, the wife not being under the age of 15 will not be considered as Rape", it says that non-consensual sexual intercourse committed upon the wife by the husband is not raping if the wife is of 15 years of age."[3]

"In the case of Naz Foundation v. Government of Delhi, (2010)[4] the constitutionality of section 377 was contested. In this instance, it was claimed that Section 377 violated the fundamental rights protected in Articles 14,15,19, and 21 of the Constitution since it concealed the two adults' voluntary private sexual relations."

There are a few judgments made by the Supreme Court concerning the violence, sexual abuse, and rape against women within their marriage:
  • Independent Thought v. Union of India[5]: In this instance, the exception has been somewhat modified, which could mark the start of many more revisions about marital rape. The Honourable Supreme Court ruled that the second exemption of section 375, which covers rape during marriage when the victim is under the age of fifteen, now includes victims who are under the age of eighteen.
  • Justice KS Puttaswamy v. Union of India[6]: In this instance, Article 218 of the Indian Constitution recognizes the right to privacy as a basic right. The Honourable Supreme Court ruled that a woman's right to privacy includes protection of her bodily integrity. As a result, forcing the wife to engage in sexual activity would be against her fundamental rights.
  • Suchita Srivastava v. Chandigarh administration[7]: In this case, the honorable Supreme Court held that the right to choose concerning sexual activity falls within the umbrella of article 21 of the constitution of India.
  • State of Karnataka v. Krishnappa[8]: In this case, the Hon'ble Supreme Court acknowledged that sexual violence violates a person's right to privacy. In addition, the court regarded non-consensual sexual relations as physical and sexual violence.
  • State of Maharashtra v. Madhukar Narayan[9]: The Honourable Supreme Court ruled in this case that a woman's sexual privacy must be protected and cannot be shared with anyone at any time.
  • Bandhua Mukti Morcha v. Union of India[10]: The theory of the exemption from marital rape contradicts the victim's right to good health, which has been interpreted as a component of Article 21. Such an exemption has detrimental effects on one's physical and mental health. It causes a woman's psychology to collapse and sends her into a severe emotional crisis.
These judgments are a hope of ray given by the judiciary that marital rape may be criminalized. There may be many other cases that were never given the light it needed related to marital rape because of the thinking of the society, it was never even registered or put in front of the court. On an urgent basis, the legislature needs to come up with an amendment that criminalizes marital rape.

In India, Marital Rape Is Not Considered As a Rape

Marital rape is a shameful offence in India. Women account for the vast majority of individuals harmed by the non-criminalization of marital rape.

The woman is physically and sexually assaulted in this brutal and heinous deed that the, as it is a lawful marriage between the husband and wife. For the wife being above the age of 15, for her marital rape is not considered a rape offence because it is a lawful marriage between both the husband and the wife. Therefore, any such forceful sexual activity by the husband with his wife and without her consent is not considered a rape offence. Unfortunately, our judicial system has determined this, based on numerous cases involving marital rape. Sadly, this is the truth of Indian society.

"My husband forcefully made me remove my clothes against my wish and committed oral sex and raped me at about half past nine in the night on 19/03/2017. He started oral sex by moving his fingers over my private part i.e. vagina. Therefore, I got frightened by his act"[11]

These are the exact words of the victim, she stated in the "Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018" case.

In India, marital rape is a delicate and complex subject that is deeply entangled with social, legal, and cultural dimensions. According to the most current update from January 2022, marital rape is not specifically recognized as a crime in India.

There are a few of the major causes of this lack of legal recognition and that are:
  1. Social and Cultural Norms: India, like many other countries, has long upheld patriarchal values and customs that give men the upper hand in marriages. Throughout history, the idealized portrayal of the "pativrata," or loyal wife, has served to reinforce the belief that a woman should submit to her husband's demands, even those that are sexual. It is challenging to disrupt the current quo because of these deeply rooted views that frequently normalize and justify sexual abuse within marriages.
  2. Legal Framework and Historical Precedents: Although India's legal system has gradually changed to handle sexual assault, it has not done a good job of addressing marital rape. Forced sexual intercourse between a man and a woman that takes place without the woman's consent or will is known as rape under the Indian Penal Code (IPC). However, there is an exception to this rule under Section 375 of the IPC, which states that sexual intercourse of a man with his wife who is over 15 years old without her agreement does not qualify as rape. This exclusion essentially shields husbands from prosecution for rape committed during marriage, regardless of the specifics.
  3. Reluctance to Get Into "Private Matters": There is a consensus among politicians and the general public that the government shouldn't get involved in issues that are deemed to be personal or family affairs, such as marriage. Because it is frequently believed that marital rape is best handled within the boundaries of the family, this mindset has contributed to the resistance to make it a crime. Furthermore, arguments against making marital rape a crime have included worries about maintaining family unity and marital peace.
  4. Obstacles in Reporting and Prosecution: Underreporting and low conviction rates pose serious obstacles, even in nations where marital rape is officially recognized as a criminal offence. Victims of marital rape may be even less likely to come out or seek justice in India, where there is a high prevalence of societal stigma, fear of reprisals, and mistrust of the legal system. In addition, the burden of proof in cases of marital rape can be especially difficult because the victim's statement may be the only available evidence.

In India, attempts to address the problem of marital rape have encountered both success and opposition. Legislators, activists, and advocacy groups have been pressing for changes to the legislation to make marital rape a crime and to better assist victims. Substantial change is still hampered, though, by resistance from orthodox social groups and worries about the sanctity of marriage and family.

In conclusion, a complex interaction of sociological, legal, and cultural elements is reflected in India's refusal to recognize marital rape as a crime. A multifaceted strategy is needed to address this issue, including legal changes, public awareness initiatives, and cultural transformations about gender equality and women's rights in marriage.

Many Indian women would suffer in silence up to that point because they are not getting justice or protection from a type of violence that has no place in any culture.

Impact Of Marital Rape On Physical And Psychological Areas:

"Despite the historical misconception that being raped by one's spouse is a minor incident with little trauma, research shows that married women are frequently left with serious and enduring effects from rape. Miscarriages, stillbirths, bladder infections, infertility, and the possible acquisition of sexually transmitted illnesses, such as HIV, are among the specific gynecological effects of marital rape."[12]

Women who are sexually assaulted by their spouses experience severe psychological effects, such as extreme anxiety, thoughts of suicide, and long-lasting, post-traumatic stress disorder. The psychological effects may last for a very long period.

Legal Position In Other Countries:

U.S.A: According to a study, between 10% and 14% of married women in the US report having been raped during their marriage. After looking at the frequency of various forms of rape,[13] researchers discovered that about 25% of all rapes are marital rapes. "Even though marital rape is common, social scientists, practitioners, the criminal justice system, and the general public have paid very little attention to this issue. In actuality, society did not start to accept that rape could even happen in a marriage until the 1970s."[14]

England: "In 1991, the exemption for marital rape was eliminated. The House of Lords ruled that the rule that a husband could not be found guilty of raping his wife if he coerced her into having sex against her will was an offensive and antiquated common-law fiction that no longer accurately reflected the status of a wife in modern society and should be abandoned. The Criminal Justice and Public Order Act of 1994's Section 147 made the corresponding amendment to the statute law."[15]

New Zealand: "When the current Section 128 of the Crimes Act, 1961 was passed in New Zealand in 1985, the marital rape exemption was eliminated. According to subsection (4)[16], an individual may be found guilty of sexual violence for engaging in a sexual relationship with another person even if they were married at the time of the relationship."[17]

Legal Position in India:

Marital Rape occurs in India by facts and not by law. However, the Indian courts appear to be working against their interests, but in other countries, the legislative has either made marital rape recognized as a crime or the judiciary has interpreted the law, and actively participated in recognizing it as an infraction.

Supreme Court of India held in Bodhisattwa Gautam v. Subhra Chakraborty[18] case that, Rape is a crime against basic human rights and the right to life guaranteed under article 21 of the constitution. Yet it negates the very existence of marital rape by not recognizing it.

Although Indian law on domestic violence has undergone substantial changes, these changes have primarily addressed physical abuse rather than sexual assault. Under Indian law, women who experience and wish to report sexual assault from their spouses are not granted state protection because of the wide exception to marital rape found in Section 375 of the Penal Code, 1860.

The following declaration by Sir Mathew Hale, written in the 17th century, served as the basis for this exemption:

  1. The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract. [19]
  2. This concept established the mentality of Indian society, that once married, the woman does not have any right to refuse sex with her husband. This gives the husbands the right to have sexual intercourse with their wives even if it is without her consent which is in direct contravention of the principles of human rights and provides the husbands the license to rape their wives.[20]
  3. The most unfortunate part is living in the 21st century, where we call this generation more advanced, where we call ourselves a developing nation still we are following the old phrase written in the 17th century, which in today's date should be regarded as a invalid statement.

Recommendations For Change/Reform:
  • Parliament ought to declare marital rape to be a crime punishable by the Penal Code of 1860
  • The Penal Code, 1860's Section 376 should apply to marital rape punishment, just like it does to other rapes.
  • The parties' marital status should not be a factor in the sentencing decision.
  • The wife's failure to resist and retaliate with force or by screaming and shouting should not be used as a defence against the accusation.
  • If the wife's husband is found guilty of marital rape, she should be able to obtain a divorce judgment. Even while "cruelty" or "rape" may be grounds for divorce in a case involving marital rape, it is wise to have the legal situation clarified.
  • The wife should be entitled to a divorce decree if her husband is found guilty of rape committed during their marriage. It is advisable to have the legal issue addressed, even though "cruelty" or "rape" may be grounds for divorce in a case involving marital rape. It is necessary to make corresponding modifications to the marriage laws.
It is without a doubt a violation of human rights and ought to be made illegal. Any sexual activity that is forced upon a partner without their consent within the marriage is referred to as marital rape. It is a form of violence that can seriously harm a person's mental, emotional, and physical well-being.

The idea that a spouse has the right to see their partner sexually without their consent is antiquated and at odds with contemporary ideas of autonomy and equality. Regardless of marital status, consent must be freely provided by both partners in each sexual interaction.

Numerous nations have realized how critical it is to handle marital rape and have moved to make it a crime or bolster already-existing legislation to better protect victims. To guarantee that marital rape is universally denounced and criminalized, however, there is still considerable work to be done on a global scale.

There have been ongoing discussions and debates about the need to criminalize marital rape in India. Advocates argue that such recognition is essential to ensure the protection and dignity of married individuals, particularly women, who are vulnerable to sexual violence within the confines of marriage. They stress the importance of recognizing that consent must be freely given in all sexual encounters, regardless of marital status.

Efforts by activists, policymakers, and civil society organizations continue to push for legal reforms to address this issue comprehensively. However, progress has been slow, and various social, cultural, and legal challenges need to be overcome to bring about meaningful change in this regard.

Ultimately, addressing the issue of marital rape requires a multifaceted approach involving legal reform, education, awareness-raising, and societal change to ensure that every individual's rights and dignity are respected within the institution of marriage.

In summary, to establish a culture of respect, consent, and equality in intimate relationships, legal changes, educational initiatives, and social transformation are necessary to address Marital rape, which in itself is a gross violation of human rights.

  1. Gosselin, D.K., Heavy Hands � An Introduction to the Crimes of Domestic Violence, (1st Edn., Prentice-Hall Inc., New Jersey, 2000).
  2. Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2017) SCC OnLine Guj 1386(India)
  3. Pen.Cod. � 375.
  4. Naz Foundation v. Government of Delhi, (2010), CRI. L. J. 94(India)
  5. Independent Thought v. Union of India, (2017) Writ Petition (Civil) No. 382/2013(India)
  6. Justice K.S. Puttaswamy v. Union of India (2017) Writ Petition (Criminal) No./2012(India)
  7. Suchita Srivastav v. Chandigarh Administration (2009) Civil Appeal No. 5845/2009(India)
  8. State of Karnataka v. Krishnappa, (1993) SCC OnLine Kar 255(India)
  9. State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57(India)
  10. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161(India)
  11. Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2018) SCC OnLine Guj 732(India)
  12. Thornhill, R. & Palmer, CT., A Natural History of Rape- Biological Bases of sexual coercion (1st Edn,. MIT press Cambridge mass, 2000)
  13. National Violence Against Women Survey, NCJ 172837, Washington, DC: US Department of Justice.
  14. Marital Rape � Myth, Reality and Need for Criminalization, 2003 PL WebJour 12
  15. Marital Rape � Myth, Reality and Need for Criminalization, 2003 PL WebJour 12
  16. Simester, A.P. & Brookbanks, J., Principles of Criminal Law (1st Edn., Brookers Ltd., Wellington, 1998), p. 552.
  17. Marital Rape � Myth, Reality and Need for Criminalization, 2003 PL WebJour 12
  18. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490(India)
  19. Hale, History of the pleas of the crown 629, 1778
  20. Marital Rape � Myth, Reality and Need for Criminalization, 2003 PL WebJour 12

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