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Marital Rape in India: An Undefined Crime

Despite the fact that India has celebrated its 75th year of independence, women in the country are still neglected and are not genuinely free and independent. Rape is an offense against women that violates her dignity and self-respect, and it lowers the woman to the position of an object used primarily for sexual enjoyment when it occurs within the four walls of a married house.

In India, marriage is regarded as a sacred social institution. The legal sanctions associated to a husband and wife's sexual interaction are one of the most distinctive elements of their relationship. But, marriage has now become a license to rape. How can a husband be allowed to rape his wife? Rape, is Rape. How can the institution of marriage be termed sacrosanct if women are subjected to physical, mental, and emotional abuse with no recourse?

Marital rape- An Understanding
Marriage is a legally sanctioned contract between a man and woman, which is a legally recognized relationship. Sexual intercourse between husband and wife is legal. Due to the legality of sex, husbands gain the right to force their wife's to have sex with them, which can be the reason for marital rape. Although the legal definitions vary, marital rape can be defined as any unwanted sexual intercourse or penetration by force, threat of force, or without the wife's consent.

In proper perception, when couples in a marriage cohabit, there is no rape because there is presumed matrimonial consent. Despite an increasing number of cases of marital rape in our country, marital rape is not defined in any statute or law. There is mention of the Right to Equality in Indian Constitution but women face infringement in their right in cases of marital rape.

In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes.

Different types of Marital Rape
There are three kinds of marital rape that are recognized by legal scholars. These are as follows:
  1. Battering rape:
    In battering rape, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are assaulted 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.
  2. Force-only rape:
    In this type of rape, 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 for sexual intercourse.
  3. Obsessive rape:
    In this type of rape women experience what has been considered as brutal, aggressive or compulsive rape. These assaults include cruelty and pertinacious sexual acts and are over and over again bodily violent.

Indian Legislation on Rape
Section 375 of IPC deals with rape. However Exception 2 to section 375 exempts a person that a person can have sexual activity together with his wife, without her consent, if she isn't under the age of eighteen. Originally, the age of consent was fifteen but it was raised to eighteen by the Supreme Court of India in the judgment of Independent Thought vs. Union of India in 2017. In this context, bench of justices Madan B Lokur and Deepak Gupta observed: "Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance". However, the Supreme Court refrained from dealing with marital rape aged above eighteen.

Interpretation of Section 375 of Indian Penal Code
Section 375 - Rape
A man is said to commit "rape" if he:
  1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or 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, or any of the body of such woman or makes her do so with him or any other person; or
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.

Under the circumstances falling under the description 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 interested, 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 eighteen years of age.
  7. when she is unable to communicate consent.
Explanation 1: For the purposes of this section, "vagina" shall also include labia majora.

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

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

Exception 1: A medical procedure or intervention shall not constitute rape.
Exception 2: Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.

Under section 375 of the Indian Penal Code, the definition of rape is when a man without the person's consent or will has sexual intercourse. Section 375 explains what rape is and when an act becomes rape. It also provides for 2 exceptions one of which is a medical procedure and the other one is sexual intercourse of a husband with his wife who is not 15 years or below is not considered as rape. But if the woman is above the age of 18 and the husband has sexual intercourse without her consent is not constituted as rape. Section 375 considers only the rape of a minor girl, a crime. This interpretation means that if a woman is above the age of 18 and if she is married then the husband gets a license to have sexual intercourse without her consent.

In a 2013 report, the Justice Verma Committee recommended removal of exception of marital rape. Fortunately, in the case of Independent Thought v. Union of India, a division bench of the Supreme Court of India ruled down Exception 2 to Section 375, IPC as a violation of Article 14 and 21 of the Indian Constitution.

Protection of Women from Domestic Violence Act, 2005 consist the reasonable civil remedies for the violence against women which includes marital rape too. Having sexual intercourse without consent can be stated as violation of dignity and thus can be considered as a criminal offence. The act considering this violation as a civil offence has provided with few civil remedies such as fine, protection etc.

Constitutional Validity
Rape laws in India are violative of Article 14 and 21 of Indian Constitution.

Violation of Article 14
Article 14 guarantees equality before the law and equal protection under the law. The two prerequisites of Intelligible differentia and Rational nexus must be met in order for Article 14 to apply. Exception 2 to Section 375 discriminated against married and unmarried women, infringing on her constitutional right to equality under Article 14. The legislation makes a clear distinction between married women above the age of 15 and married women under the age of 15. Married women, like men, like unmarried women, require legal protection in their personal lives. Women's freedom to choose is taken away under Section 375 IPC, which essentially deprives them of physical autonomy and personhood.

Violation of Article 21
Exception 2 of section 375 violates Article 21 of the Indian constitution. Article 21 of the constitution provides for the right to life and personal liberty. It also includes the right to privacy, dignity, health, safe environment, etc.

Right to live in Human Dignity
In Bodhisathwa Gautam v. Shubhra Chakraborthy, Supreme Court held that rape is a crime against basic human rights and is violative of victim's most cherished, fundamental right. A married women too has a right to live in human dignity, right to privacy and rights over her own body. Marriage in no way can take away these rights.

Right to Sexual Privacy
In Justice K.S Puttaswamy v. Union of India , Supreme court held the right to privacy as a fundamental right and includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations.

Right to make choice in Sexual activity
In Suchita Srivastava V. Chandigarh Administration, the court held that the right to make choices in sexual activity is also included under the right to personal liberty which is a part of Article 21.

Hence exception 2 not only violates the right to privacy but also the right to live a healthy and dignified life. The forced sexual intercourse by their husband spoils the wife's physical and mental health. The law thus violates Articles 14 and 21 of the constitution.

Is the wife a property to be used without consent?
Rape is the only crime where the victim turns to be accused. As defined under the Indian Penal Code, a man is said to commit rape if he has any sexual intercourse with a woman against her consent or with a consent obtained by fraud, misrepresentation, or coercion. There rises a question that whether a person who is married has sexual intercourse with his wife falls under the definition of rape?

There are two options: one is "No," which everyone knows, and the other is "Yes," if it is done without her permission. When compared to the possibility "No," the possibility "Yes" has more grounds against it. The marriage ceremony, as everyone is aware, has its roots in all eras of history. In fact, the world has gone through a period of such upheaval, with marriage as its foundation. Women have always been deemed the weaker sex and have been denied full rights.

Women were finally considered equal to men in all respects after many fights, but the culture that originated in the past still places women in a disadvantaged position. Women used to be considered exclusively for childbearing and family maintenance in the past, but now they have the right to participate in all fields. No woman can be denied any benifits only because she is a woman, and no man can be given complete control over all he gains solely because he is a male. So how can having sexual relations with your wife without her consent not be considered rape?

As well said, "My rapist doesn't even know he raped me, because the system told him he didn't". Women's personal sentiments are ignored by a society that still believes in the system. Despite the fact that marriage is a contractual relationship, the parties to the contract are obliged by specific regulations. That specific regulation has no authority to disobey or contradict other legal laws. The Indian constitution extends its hand to all people of India, regardless of gender, caste, race, or other factors.

It guarantees the fundamental rights to all its citizens by birth. Every citizen has the right to life and personal liberty, as well as human dignity, as stated in Article 21 of the constitution. Personal liberty refers to any lawful desire, therefore any decision to engage in sexual activity is made not just by the husband, but also by the wife. The exception to section 375 of IPC deals with acts that do not invite the term rape. Under such an exception, it is stated that any medical test or any sexual intercourse by the husband does not constitute to be rape unless the wife is under the age of 15.

But it failed to mention the consent of parties. Despite the fact that the consent for medical tests is not directly specified in the IPC, any act performed by medical practitioners without the consent of the patient is criminal. The consent of a guardian (husband for married women, parents for unmarried daughters) is only valid if the patient is unconscious or unable to provide consent. However, there is no legislation or statute that requires women's permission. The only difference between rape and marital rape is who is engaged in the act of rape.

But both concepts have the common root "consent" If the woman's permission is refused, no one has the authority to compel another gender or person to fulfill their own want by infringing on other people's rights. It does not imply that a woman has complete authority over all decisions; rather, it clarifies that a woman's opinions and wants must be treated in the same light as a man's, and valid permission is required to engage in contact with a woman.

Because marriage is a contractual relationship for the goal of forming a family and procreating a child, each act performed jointly requires the assent of both parties in order for the contract to be legitimate. A wife, like a man, has the right to say "no" to sexual activity equivalent to that of a male. Thus it clearly explains that a woman is another equal half of a man and does not come under the term of property acquired by men through the religious ceremony so-called marriage.

The Indian government passed an Act called the Protection of Women from Domestic Violence Act, 2005. This Act is passed for the reason to protect any women who are affected in their domestic life. As discussed above, having sexual intercourse without permission is considered as a violation of dignity and can be considered as a criminal offense.

The Act (Domestic Violation Act) , considers this violation to be a civil offense, provides for a limited number of civil remedies, such as fines, protection, etc. Sexual intercourse without the willful permission of men or women is rape, whether it occurs before or after marriage. Any tree with a poisoned root provides a poisoned fruit similarly, a rape either before or after marriage is termed to be rape. A poisoned fruit disguised as appealing cannot be compared to a healthy fruit; similarly, any activity that rises to be offensive for either party cannot be covered by a blanket called marriage

Causes of marital rape
  • Domination:
    Men feel themselves to be in charge and have a history of attempting to dominate women. They are unable to endure any form of female retaliation against them. They are always taking steps to silence women's voices. They believe that having sexual intercourse with their wife whenever they want is the best way to achieve this.
  • Illiteracy:
    Illiteracy is the primary cause of many illegal and wrongful acts. People still believe in old clich�s that suggest a women's spouse is everything and anyone that criticizes his husband is rejecting GOD's work. People, even women who are the victims of unjust acts, are unaware of the law, including whether the behavior in question is prohibited by statute and what remedies are available to her.
  • Society:
    Because a man is a social animal, he must be a part of society in order to develop fully. Every society has its own set of social standards by which its citizens are ruled. Society imposes stringent regulations on women, stating that if she leaves her husband's house, she is a bachelor for the rest of her life; if she is raped; if she is unable to give birth to a baby boy; and if she works against society's standards and norms, she would be rejected by society.
  • Sexual Dissonance between couples:
    Women might have refused sexual intercourse for a variety of reasons, including menstruation, stress, or a physical injury. But the husband takes it on his ego that he does not want to lose his superiority and use of power on the women so he forcefully cause intercourse with his wife.

Criminalization of marital rape
Arguments against criminalization
  1. There is an implied consent to have sexual intercourse when a woman marries a man.
  2. There is no need to give any legality to marital rape as it is an uncommon issue and only countable people suffer out of this.
  3. Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape.
  4. Marital rape laws would destroy many marriages by preventing any possible reconciliation.
  5. Due to near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.

Arguments for Criminalization
  1. Violates the fundamental right of Article 14 which is right to equality and equal protection of law and Article 21 Right to life and personal liberty.
  2. Not criminalizing marital rape becomes contrary to the other laws of India. Outraging the modesty of a woman or doing any act against her will or consent are crimes in India. In the same way, marital rape is also something without her consent but is not a crime.
  3. When a woman does not want to have sexual intercourse but goes through it, it has an impact on both her physical and emotional health, that again violates her fundamental right to live a healthier life.
  4. There are only countable cases of marital rape that are recorded because it is not recognized as a crime. Once it is recognized as a crime, we will be able to know the exact occurrence of it.
Suggestions for Reform:
  • Marital Rape should be recognized by Parliament as an offence under the Indian Penal Code
  • The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
  • The fact that the parties are married should not make the sentence lighter.
  • It should not be a defense to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
  • The wife should have an option of decree of divorce if the charge of marital rape is proved against her husband.
  • Corresponding charges in the matrimonial laws should be made.

The continuous exemption of marital rape from the purview of criminal law sustains the assumption of the wife as exclusive property of the husband. It is acknowledged that amending the legislation on sexual offenses is a difficult and delicate process, especially in a nation like India, where there is a diverse and distinct system of personal and religious laws that may clash with the new statutory criminal law revisions.

Is it possible for the government to infiltrate the private sphere? Yes, the answer is "yes." Why keep the most horrific and horrible crime beyond the jurisdiction of the State and laws, as it already does in situations of cruelty, divorce, and dowry demands? Why does the subject of marital rape continue to be taboo?

The immediate requirement is for the Indian Penal Code to make marital rape a crime. However, merely declaring action to be illegal is insufficient. More has to be done for sensitizing the courts and the police. There is also a need to educate the general public about this crime, because the true goal of criminalizing marital rape can only be realized if society recognizes and opposes the prevalent misconception that rape by one's husband is inconsequential.
Also Read:
  1. The Reality And Existence Of Martial Rape In India
  2. Marital Rape
  3. Marital Rape versus Conjugal Right
  4. Does Section 375 of IPC Include Marital Rape
  5. Marital Rape: Is marriage equal to Consent?
  6. Make Marital Rape An Offence: Delhi Court
  7. Marital Rape And Its Current Legal Status
  8. Marital Rape Situational Analysis
  9. Why Marital Rape Must Be Criminalised
  10. Marital Rape - A Justified Crime In India
  11. Rape an Offence, Marital Rape an Exception: Marital Rape in India and Right to Privacy

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