Marital Rape - A Sacred Crime
it's not just the title of an article, it's a
whole mindset and ideology of our Indian Society which treats women not as
humans but as objects of sex. A woman after marriage is considered a man's
property and he is the sole possessor of that woman and believes under the
curtains of marriage he can exercise his every power.
Though marital rape is the
most common and repugnant form of masochism in the Indian society, it is well
hidden behind the iron curtain of marriage, and with leaders like Swaraj Kaushal
(husband of former union minister Sushma Swaraj) supports this mindset and
ideology of our Indian society.
I quote, There will be more husbands in the jail, than in the house
this was his tweet on 29 August 2017 followed up by
another tweet stating, There is nothing like marital rape. Our homes should
not become police stations
. Marital rape is a matter of grave concern and our
leaders instead of bringing it into the limelight are making a mockery of it.
The legal definition says marital rape can be defined as any unwanted
intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of
force, or when the wife is unable to consent. Despite the prevalence of marital
rape, this problem has received relatively little attention from social
scientists, practitioners, the criminal justice system, and the larger society
as a whole. The word rape' has been derived from the term rapio
means to seize
Rape is therefore, forcible seizure, or the ravishment of a woman
without her consent, by force, fear, or fraud. It involves coercive,
nonconsensual sexual intercourse with a woman. Rape can be viewed as an act of
violence of the private person of a woman, an outrage by all means. It is the
ultimate violation of the self of a woman. The Supreme Court of India has aptly
described it as deathless shame and the gravest crime against human dignity'.
Rape is not merely a physical assault, but is destructive of the whole persona
of the victim. It leaves the victim tormented for the rest of her years.
Traces of marital rape in the history and its promotion
Sexual violence in marriage has a history as long as the institution of marriage
itself. But for millennia, marital rape - like other forms of sexual assault -
was considered a private trouble, not a public issue.
Early rape laws defined the assault as a property crime against the husband or
father whose wife or daughter was defiled.
Under this framework marital rape was an oxymoron since
a wife was legally a husband's sexual property or a mere object of sex. When
17th-century rape laws - from British common law to the Qing dynasty in China
(Ng, 1987) - sanctioned rape, it was considered a violation of a woman's
chastity; again, not possible in the context of marriage.
For 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 up herself in
this kind unto her husband which she cannot retract these were the words of
blameworthy chief justice hale written in his book History of the Pleas of the
Crown in 1736. This rule can be traced back beyond hale to St Augustine and
possibly before him.
His publication faced a substantive challenge years later
in R vs. Clarke (1949) and on October 23, 1991 the law lords unanimously swept
away blatantly illegitimate law that states a women agree on sexual intercourse
for marriage and cannot retract that consent. In India, the Supreme Court ruled
in February 2015 that marital rape was not a criminal offense. A government
minister then told the Parliament that marital rape could not be criminalized in
India as marriages are sacred in our country.
This ideology has global
resonance, not because people on many continents were influenced by Lord Hale,
but because control of women's bodies through marriage is foundational to
patriarchy. It's high time we end this patriarchy now. It is quite shameful for
a nation with a population of 1.3 billion people with a glorious history of
achievements and is on the roads of becoming a superpower by 2030 and yet it is
among the 36 countries who have still have not criminalized marital rape.
the recent trends, The Supreme Court of India and various High Courts are
currently flooded with writ petitions challenging the constitutionality of this
exception, and in a recent landmark judgment, The Supreme Court criminalized
unwilling sexual contact with a wife between fifteen and eighteen years of age.
But still rape has no fixed age it's a crime against the dignity of a woman and
having said, now is the time to ring bells to our judiciary system and
criminalize this so called sacred crime
The world eye on marital rape
Today there are many countries that have either enacted marital rape laws,
repealed marital rape exceptions, or have laws that do not distinguish between
marital rape and ordinary rape.
These countries include: Albania, Algeria,
Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland,
Italy, Japan, Mauritania, New Zealand, Norway, the Philippines, Scotland, South
Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States, and
Studies suggest that women are more prone to danger and
violence in their marital home rather than on streets, cases of dowry violence
and domestic violence are ripping hearts of women across the globe Turkey
criminalized marital rape in 2005, Mauritius and Thailand did so in 2007.
criminalization of marital rape in these countries both in Asia and around the
world indicates that marital rape is now recognized as a violation of human
rights. In 2006, it was estimated that marital rape is an offense punished under
the criminal law in at least 100 countries and India is not one of them. Even
though marital rape is prevalent in India, it is hidden behind the sacred
curtains of marriage. Today even the United Nations also recommends India to
criminalize marital rape.
The crucial 3 trends that can be game changer
Regardless of traditional context, however, attitudes are shifting in all
cultures. At this point in the 21st century, there are three significant trends
that are changing attitudes toward marital rape.
First, the idea that women's rights are human rights is no longer a radical or
fringe perspective. International human rights organizations are now recognizing
abuse in the private sphere as a rights violation. In fact, sexual violence in
marriage has been successfully used as grounds for seeking asylum in the US and
The second current trend that brings marital rape to the forefront is the global
HIV/AIDS pandemic. Especially at this point of time when the entire world is
battling COVID-19, there is a sense of fear of death from other global
Research documents suggest that large numbers of women, particularly
in sub-Saharan Africa, have been infected by their husbands. The lack of ability
to deny sex - or even ask for sex with a condom - can be life threatening for
women and their children. Public health policy and practice are increasingly
cognizant of the damage marital rape does. Marital rape has been tormenting
females all around the globe and it demands attention.
The third trend that is changing the way people think about marital rape is the
global transformation of marriage as an institution. Marriage which is
considered sacred and serves as a shield to this crime entitles husbands as ,The Legal Rapists
The traditional model of marriage as a contract between
families for the purpose of reproduction is giving way to companionate marriage
based on intimacy - albeit unevenly and despite resistance. The idea that
marriage is a relationship between two people based on romantic love validates
the conceptualization of the wife as a distinct, autonomous being - an
individual with bodily integrity. This change from reproduction to intimacy as
the central purpose of marriage represents a tectonic shift in heterosexual
Types of marital rape
The following three kinds of marital rape are identified by legal scholars as
generally prevalent in the society:
Battering rape: In which women experience both physical and sexual violence in
the relationship 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 husband wants to make up and coerces his wife to have sex
against her will. The majority of marital rape victims fall under this category.
Force-only rape: A rape in which husbands use only the amount of force necessary
to coerce their wives; battering may not be characteristic of these
relationships. The assaults are typically after the woman has refused sexual
Obsessive rape: A rape that involves assaults and is the most brutal. These
assaults involve torture and sexual acts and are often physically violent.
Legal status on marital rape
Legal position in countries like United States researchers estimate that 10% to
14% of married women experience rape in marriage. When researchers examined the
prevalence of different types of rape, they found that marital rape accounts for
approximately 25% of all rapes. Despite the prevalence of marital rape, this
problem has received relatively little attention from social scientists,
practitioners, the criminal justice system, and the larger society as a whole.
In fact, it was not until the 1970s that the society began to acknowledge that
rape in marriage could even occur. As it is believed that the sacred marriage
itself gives right to husband having sexual intercourse with his wife without
her consent. Importantly, the existence of any spousal exemption indicates an
acceptance of the archaic understanding that wives are the property of their
husbands and the marriage contract is entitlement to sex.
In England, earlier as a general rule, a man could not have been held to be
guilty as a principal of rape upon his wife, for the wife is in general unable
to retract 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
Legal perspective from Indian scenarioRape
as a clearly defined offense was first introduced in the Indian
Penal Code in 1860. Before this, there were often diverse and conflicting laws
prevailing across India. The codification of Indian laws began with the
enactment of the Charter Act, 1833 by the British Parliament which led to the
establishment of the first Law Commission under the chairmanship of Lord
According to Section 375 of the IPC the act of sex by a man with a woman, if it
was done against her will or without her consent, makes him punishable. The
definition of rape also included sex when her consent has been obtained by
putting her or any person in whom she is interested, in fear of death or of
Also, sex with or without her consent, when she is under 18 years is considered
rape. However, under the exception, sexual intercourse or sexual acts by a man
with his wife, the wife not being under 15 years of age, is not rape. This is
not just a loophole in our judiciary system, this indicates our complete failure
in giving women their much deserving right to stand for their dignity and say it
with pride that, Marriage is not an excuse.Section 376 provided for seven
years of jail term to life imprisonment to whoever commits the offense of rape.
But no law grants any punishment for marital rape. Some devastating events from
the past led to many amendments. On March 2013, the rape law in the country was
amended .the new tougher anti-rape law Criminal Law (Amendment) Act,2013- to
punish sex crimes redefined rape and made punishments more stringent- including
death for repeat rape offenders.
Events that followed was the recommendation of The Justice Verma committee of
removing the exception to section 375. This recommendation was rejected later.
Argument given by most of the people and even by the centre in court that
criminalizing marital rape can be an easy tool for harassing husbands and is
prone to misuse.
And counterpart of this argument is every law in our constitution can be misused
and this is an implausible claim for not introducing new laws. History is
evident of the fact that people are falsely accused of crimes that they have not
committed but that doesn't suggest that those crimes should not be criminalized.
A sheer audacity was reflected by an initiative taken by Dr. Shashi Tharoor back
in 2019 when he moved a private members' Bill in Parliament, seeking the
criminalization of marital rape. The government refused to consider it. The
Centre has previously opposed the criminalization of marital rape, saying to
Delhi HC that it would destabilize the institution of marriage
There is no harm in being optimistic and there is always a light at the end of
the tunnel, therefore this marital law should look upon the various aspects of
violation of fundamental rights such as Article 21 and should look upon making
matrimonial amendments. Marital law should seek in providing grounds of filing
divorce against husbands and must have stricter punishments to give the spark of
fear in the hearts of husbands who are treating their wives as a mere object not
realizing the motto of My body and My rights
Remarkable words by Justice Verma should reverberate in the ears of every
Indian, True achievement of empowerment and equality of women has to be
necessarily a conjoint effort of the individual and the state
. India is a
land enriched with cultural values and morals, a country known for worshipping
women in forms of the goddess, as proud Indians, as humans it becomes our sole
duty to introduce a much required marital law and realize it's an exigency.
A law that criminalizes marital rape and save guards dignity of our women, the
pride of our motherland, a law which scrapes off the license given to husbands
by the sacred institution of marriage to rape their wives. It's time we realize
no institution is above an individual's dignity and a woman has every right to
and that No
has to be respected.Written By: Devansh Dixit
Authentication No: JL021023227360-30-702