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Matrimonial Rape

Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces. - F. H. Batacan

Rape in marriage is a serious and prevalent form of violence against women. Marital rape can be defined as unwanted intercourse, penetration obtained by force, threat of force when the wife is unable to give consent. According to the patriarchy believes and the laws which are prevailing in India marriage is considered to be as the pious thing where two person's came together from their different life to live together to form a happy life, family and with a thought to create a healthy and happy sexual relationship between them where the wife expects respect, love, good health and wealth from her husband along with trust, faith and believe in their relationship.

But today this sacrament just revolves around only lust and sex as our society is not upgraded to have sexual relationship before marriage so youngsters found marriage as an option to meet up their demands and also according to the Hindu marriage act , marriage is a sacrament between two individual who came together for the procreation of the child. Also marriage between two individual not only creates biological relationship but the emotional relationship also. 'Consent' being the essential element for demonstrating the gravity of sexual relationship between husband and wife. Taking this into consideration if there is no consent from either of the person who is in a sexual commitment can leads too RAPE.

Legal Framework:
Rape is thus, is an unlawful sex without the consent of the person due to physical torture which leads to endangers life of the person.

In India Rape is an offense under section-375 of Indian Penal Code- 1860.

Accordingly, the non-consensual relationship between non spouses is a crime but the non-consensual relationship between matrimonial spouses is a crime to, but In India it is not considered so or is it still debatable. According to the law which is prevailing in India i.e. Hindu Marriage Act once the marriage is performed husband gets the liberty/license over the wife to any extent.

It is because of the patriarchy that husband gets to do violence and sexual assault on his wife and it is exceptional and excusable. The patriarchy believes that wives are the most unimportant asset in men's life so if they will talk about forced sexual relation between them it will be regarded as theft of ladies and will be against their husband.

Matrimonial rape is excusable it was stated by the statement of Sir Mathew Gale, Chief justice in England during the period of 1600's: "the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent, matrimonial consent and contract, the wife have given her consent by performing all the ceremonies and that consent cannot be taken back".

According to the exception stated in section-375 of Indian Penal Code, 1860 that sexual intercourse by a man to his own wife not under the age of 15 years, is not a rape. This would eventually impact the dignity and respect of the wife and thus leads to the violation of her right to equality her life and personal liberty i.e. Article 14& 21 of the Indian constitution. The exception clause under secrion-375 of Indian Penal Code gives power to the husband to disrespect the wife up to any extent this exception is ridiculous and absurd.

Is Marriage A License To Rape?

Rape in marriage is a serious and prevalent form of violence against women. Few truly believe that the relationship between two spouses is confidential and generally women in India doesn't really know or have information regarding the unnatural sexual abuse which they have been facing since long and this is not it even the educated women does not wants to raise voice if they are facing such abuses from their husband's and if out of 100% women population 10% wants to raise voice against the rape in the marriage there is no law to protect her rights in India to describe the non-consensual rape which has been committed in the matrimonial relationship as Matrimonial Rape.

The court believes that they have created a law namely Protection Of Women From Domestic Violence Act, 2005 but that does not indents to give relief to such wives who have been facing matrimonial rape or this act is for the protection of women and it is civil wrong which believes in giving punishment extended to the extent of one year imprisonment. Is that enough the women are facing hell lot of problems to maintain the life of her husband her children her family and when the husband came home upset he decides to reduce his stress by having non-consensual relationship? Is it justified why women have to face all of the problems on their own?

The supreme court of India describes Rape as deathless shame and the gravest crime against human dignity and it is just so same as the matrimonial rape the difference is this that it done by the person from whom the lady expects trust, faith and is having emotional relationship (husband), but patriarchy believes are still prevailing husband is treated as god and raising voice against him is a curse. Any sexual assault or physical abuse is excusable during marriage.

In India, everyone believes that unless the thing which they are doing is punishable or is a crime everyone keeps on doing it. Similarly, matrimonial rape is not punishable under any code in India so it is an exception. Moreover it is to be considered as the violence under domestic violence act women because it provides civil remedy to the victim like the concept of judicial separation under Hindu Marriage Act and also the crime which the husband is doing over his wife like sexual assault or physical violence considered to be as inclusive in nature.

Further it punishes the respondent (not even stated as criminal who committed the sexual assault on her wife) only in the case of breach of protection order by the respondent (includes the husband and the relatives of husband) and to the extent of cruelty under 498 A of IPC , this section was introduced mainly to protect the women from the demand of dowry and this offence is considered to be as cognizable in nature only when the aggrieved person or her relative makes complaint to the officer in charge.

Also cruelty under section-498 A of IPC is considered to be a ground for divorce as per section-13 of the Hindu marriage Act,1955. The only safe guard to the married women against the sexual act of her husband is on when the couple were separated by judicial separation ,by the court under section 376-B of IPC . This safeguard is not to the woman who is in matrimonial relationship.

And the statement given by the wife against women is inadmissible according to INDIAN EVIDENCE ACT 1872. Section 122; this section prevents the women from disclosing any communication made by her partner in the course of marriage with an exception that unless a suit between the married person means a proceeding between the married person in family court proceeding (in assault like divorce).

Constitutional Framework:
According to Article 14 and Article 21 of the Indian constitution which guarantees fundamental rights which is mentioned under part-III of the Indian Constitution which talks about Equality before Law and Right to life and Personal liberty.

According to Article-14 of Indian Constitution which talks about Equality before Law and equal protection of law which ensures in providing equal opportunity to the citizens of India but herein in the case of matrimonial rape the wife is deprived of this right i.e. Equal Protection of Law because the exceptional clause under section-375 of Indian Penal Code states that sexual Intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

This provision violates equal protection of law between the victims- the married and unmarried women and equality before law on penalizing the rapist -stranger and the husband who committed the similar crime. The equals to be treated equally.

The exception of section-375 is violating Article-21 of the Indian Constitution which talks about right to life and personal liberty herein constitution of India empowers to protect the rights of married women too. The exception in section-375 of Indian Penal Code is violating the free will and consent of the married women with her husband with whom her emotional strings are attached.
  1. Right to live with human dignity Supreme Court has rightly pointed out that rape of women violates Human dignity. The provision which affects the dignity of a married women is violating the article-21 of the Indian Constitution.
  2. Right to sexual privacy, any form of forceful and unwanted sexual intercourse violates the right of privacy. And every women is entitled to her sexual privacy This clause violates her sexual privacy, in the matrimonial relationship.

Role Of Judiciary:

Judiciary is silent in making laws for punishing the offender of the marital rape. Many petitions have been filed but women are getting no response out of them. The Delhi High Court on February 2015 and The Kerala High Court on October 2015 refused to entertain a PIL challenging a provision section 375 exceptional clause as unconstitutional. Further the judgment came from Additional Sessions Judge, Virender Bhat, in October last year stated a controversial statement that "girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying that it was a rape".

These cases shows rape in marriage is not an offence , and to be notable- even rape outside marriage will not a rape if the rapist marries the victim ,this subject is came arise from Justice Devadass judgment in madras high court bench, he granted bail to the rapist to' mediate' with the victim. Later Supreme Court Judgment ruled that out, "as under no circumstances rape case can be compromised". If not the marriage after rape will the remedy to the victim of rape.

Justice Chandrachud noted:
"Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one's actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values.

Proving Non-Consent

Proving rape by a spouse can often be more difficult, because it can be more difficult to prove that the victim did not give her consent. While this can be fairly straightforward to prove in the case of stranger rape, married couples usually have consensual sex, so it can take evidence of marital discord or separation to show that the sexual activity was not non-consensual.

Current Situation
According to the Ministry of Home Affairs, a crime is committed against a woman in India every three minutes. The National Crime Records Bureau reports 1,85,312 crimes committed against women in 2007-75,930 of which were considered to be of domestic violence (Cruelty by husband or relatives).

Torture and molestation were the most widespread felonies. The actual figure could be ten times higher as many cases go unreported with victims unwilling to speak out, fearing the shame and stigma associated with being a divorced or separated woman in traditional Indian society.

While attitudes towards women in educated, urbanized areas have improved, those of rural India remain unenlightened. Both men and women see violence as a part of gender relations. And even with the implementation of Protection of Women from Domestic Violence Act, 2005, marital rape continues to go largely unreported and women have, at some point of married life, undergone some form of sexual abuse- including marital rape.

Hale's Notion

The most common rationale for the marital rape exemption is Hale's notion that a marriage constitutes a contract. The terms of this contract include a wife's irrevocable consent to have sexual intercourse with her husband, whenever he wishes. This has fostered the notion that a husband has a "marital right" to sexual intercourse. According to the theory of implied consent, marital rape can never occur because all sexual contact within a marriage is assumed to be consensual.

The contract theory, also based on Hale's statement, is intertwined with the implied consent theory. Under the contract theory, Hale stated that when a woman marries, she gives up her rights to her body because she has formed a contract with her husband that cannot be retracted. And this 'contract' justifies any forceful demand of sex from the husband

Despite the fact that matrimonial rape receives less public and judiciary attention it is considered to be one of the most serious forms of violence between the spouses. The women who are raped by their husbands are subjected to assault, violence and severe emotional consequences. Rape in considered to be a heinous crime either it is rape or matrimonial rape. It is not important to see whether the woman is married or unmarried and who committed is a stranger or the husband.

The exception clause in section-375 of ipc is absurd and is violating the provisions of Article-21 of the Indian Constitution. A new provision for marital rape has to be constituted it should not be deal with the protection of women from domestic violence act, 2005. This goal will be successful only if the crime against women -marital rape is held criminalized. Marital rape should not be still decriminalized just because he is her legally wedded husband. The marital rape is a rape.

Written By:
  1. Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates, Advocates and Legal Consultants,
    Website: /.in, Email: [email protected], Ph No:+91 8750002000
  2. Ms. Priya Chawla
  3. Adv.Vidushi Jain
  4. Adv. Hritwik
  5. Adv. Aman Sharma
  6. Sh.Aman Karamvir,
  7. Adv. Tripty Rajput,
  8. Ms. Divya Kaushal,
  9. Adv. Alpana Yadav

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