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Marital Rape: The Licensed Rape

It's been 77 years of Independence but still the women of our country is not safe and are not truly free and independent. Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind, privacy, dignity and self-respect of the woman. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female and breaks her morality.

When it occurs in her matrimonial home it makes women just an object which is used for sexual enjoyment. Relation between husband and wife is known as the most safe and strong relationship in the world. Therefore marriage in Hindus is treated as a sacrament. So that husband and wife make each other lives better. But marriage has now become a license to rape.

How can the institution of marriage be called sacred if women suffer physically, mentally and emotionally torcher after the marriage? This article has discussed the concept of marital rape, the existing law in India for rape, some judicial cases regarding marital rape and how women face problems due to the non-criminalisation of marital rape.

Indian Legislation on Rape:

Section 375 of IPC (Indian Penal Code) deals with the rape. However, exception 2 of section 375 exempts a person can have sexual activity with his wife, without her consent, if the wife isn't under the age of eighteen. The age of consent was 15 before the judgement of Independent Thought vs. Union of India in 2017. After this case, the Supreme Court of India extended it to the age of 18 years.

Section 375: Rape 1
A Man Is Said To Commit "Rape" If He:
  1. Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of any other person; or
  2. Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or
  3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus of a woman or makes her do so with him or any other person; or
  4. Applies his mouth to the vagina, anus, and urethra of a woman or makes her do so with him or any other person.

Under The Circumstances Falling Under Any Of The Following Seven Descriptions:

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is inserted in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.
  7. When she is unable to communicate consent.

Explanation 1. For the purposes of this section, "vagina" shall also include the labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity.

  1. A medical procedure or intervention shall not constitute rape.
  2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
As per exception 2 of section 375 of IPC sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape. But if the woman is above the age of eighteen and the husband has sexual intercourse forcefully or without her consent will be not considered a rape. It means that if the woman is above the age of eighteen and she is married then her husband can have sexual intercourse anytime without her consent and it will not be considered a rape.

Types Of Marital Rape: 3
  1. Battering rape: In this type of marital rape, women face both physical and sexual violence in a married relationship. Some instances are those where the wife is battered during the sexual violence, or the rape follows physical violence where the husband wants his wife to have sex against her will. Most victims face this type of violence.
  2. Force only rape: In this type of marital rape, the husband uses only that amount of force necessary to oblige their wives. Women who refuse to have sexual intercourse usually face such assaults.
  3. Obsessive rape: In this type of marital rape, assaults involve brutal torture and perverse sexual acts and are most commonly violent in form.

How rape law in India violates articles 14 and 21 of the Indian constitution 4.

Article 14:

Article 14 declares that the state shall not deny to any person equality before the law and the right to equality of opportunity to every person. Marital rape violates the right to equality. If the woman is married and is more than eighteen years of age, it will not be rape. If the woman is not married then it will be rape. So, how will it be an equality?

Article 21:

Article 21 of the Indian Constitution declares protection of life and personal liberty.
  • Right to sexual privacy: In Justice K.S. In Puttaswamy (Retd.) v. Union of India 2017, the Supreme Court held the right to privacy to be a fundamental right and to include conclusive privacy primarily reflected by the ability to make intimate decisions relating to one's sexual or reproductive nature and decisions regarding intimate relationships.
  • Right to refuse to participate in sexual act: In Suchita Srivastava v. Chandigarh Administration 6, the Supreme Court held that a woman has the right of choice to have personal liberty as understood under Article 21 of the Constitution. There should be no restriction on the exercise of reproductive choice. She can refuse to participate in a sexual act or alternatively insist on the use of a contraceptive method.
  • Right to live with human dignity: In Bodhisattwa Gautam v. Subhra Chakraborty 7, the court held that the crime of rape is a violation of the right to life as guaranteed by Article 21 of the Constitution, which means the right to live with dignity. The crime of rape is not just against the person but it's a violation in rem and is against basic human rights.
As we know that our Indian constitution is lengthiest written constitution in the world and majority of provisions of the Indian Constitution were taken from other nations' constitutions. Among them many countries have already criminalized marital rape. But still, it is non-criminalized in India. Marital rape has been criminalized in more than 150 countries and it is still non-criminalized in 36 countries including India.
  • Nearly 1 in 3 women have suffered spousal sexual, physical violence: Family health survey8. (Times of India)
  • As per the survey, 32% of married women have suffered spousal physical, sexual, or emotional violence9. (Times of India)
  • A national survey found that 10% of all sexual assault cases reported by women involved their husband or ex-husband10. (National Victim Centre)

Arguments for Criminalization

  • Marital rape violates Article 14 (Right to equality) and Article 21 (Right to privacy, Right to refuse to participate in a sexual act, Right to live with human dignity) of the Indian constitution.
  • The main reason for not criminalizing marital rape is the lack of evidence. If it is difficult to prove something, how is it right not to consider it an offense?
  • There should be a decree of divorce if the husband is found guilty of marital rape.

Most of the country like USA, UK, SA, and Canada have already criminalized marital rape. But in India, there are no legal aspects to marital rape. The non-criminalization of marital rape is the main lacuna in the Indian legal system. Therefore, this is the time for the Indian legislature to take a step toward the criminalization of marital rape and bring it within the area of rape laws by removing "sexual intercourse or sexual acts by a man with his own wife, the wife is not being under the age of fifteen, is not rape." 11 Exception - 2 of section 375 of the Indian Penal Code 1860.

As we know, there is a delay in criminalizing marital rape is because of the rate of high number of fake rape cases registered in India. But just because of this non-criminalizing a crime like marital rape and giving all the rights to the husband to have sexual intercourse with his wife without her consent.

Hence, as per my opinion, there is an immediate need to criminalize marital rape because one in every third women experiences violation by their husband.

  1. Definition of Rape, IPC 1860, LexisNexis, Universal Publication
  2. Explanation 1 & 2, Section 375, IPC 1860, LexisNexis, Universal Publication
  3. Types of Marital Rape,
  4. Article 14 & 21, Dr.J.N. Pandey, Central Law Agency
  5. Justice K.S. Puttaswamy (Retd.) v. Union of India & Ors, Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1
  6. Suchita Srivastava & Anr. v. Chandigarh Administration, (2009) 9 SCC 1, CIVIL APPEAL NO.5845 OF 2009
  7. Bodhisattwa Gautam v. Subhra Chakraborty, 1996 AIR 922, SCC (1) 490
  8. Survey by Family Health Survey
  10. Survey by National Victim Centre
  11. Exception 2, Section 375 Indian penal code, LexisNexis, Universal Publication

Written By: Priyanshu Yadav, 3rd year B. COM. LL. B. student of School of law, Guru Ghasidas Central University Bilaspur.

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