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Marital Rape: Necessity Or Threat

Rape, the headline of each newspaper, is an important context in the present world. Rape is defined as forced sexual intercourse committed by a man against a woman without her consent. The definition and pre-requisites and punishment have been defined clearly in Section 375 of IPC.

The definition of rape has been written in the IPC1 but there was another term which has been rising out of it and not been the headline of any newspaper and has been ignored successfully is Marital Rape. Marital Rape has been defined as," The Sexual intercourse between husband and wife without the consent of the wife". Marital rape has been defined in the IPC but as exception 2 of IPC where it was written that " Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age is not rape."

Marital Rape has been the most controversial topic in the present context of India as no law has been yet made on it. And various stands of the Union government and Supreme Court were clearly said that " Marriage is an institution and if any law is made then the sanctity of marriage will be destroyed".

History of Marital Rape in India

Marital Rape has been a matter of importance from the very old times but it has got recognition for the first time in India through the 42nd Law commission report2 where it was stated that the sexual intercourse by a husband with his wife who is separated can not be under the exception of Marital rape exception. In 84th law, the commission3 report recommends that the consensual age of marriage should increase to 18 years.

However in 1999, in Sakshi vs UOI case 4, the petitioner sought and directed the Law commission to certain changes in IPC sections related to sexual abuse and marital relationship. Therefore the Law commission has requested the petitioner regarding the changes which she sought in IPC. After the recommendation, the Law commission in its 172nd repor5t had stated," Refusal for the criminalisation of marital rape, as it believed that there shall be unnecessary excessive intervention in a marital relationship."

The parliamentary committee on 167th report6 also states that in the present time people live in a nuclear family and therefore the marital relationship may get worse if the legislation is sought." The honourable Supreme court in 2004 also stated that treating marital rape as a crime will not benefit the country. However, in 2013, Justice Verma committee7 comes back and stated that it" recommended removing the marital rape exception and criminalisation of Marital rape as it leaves the women devoid of their fundamental rights."

 However, it has been denied by the the parliamentary committee for 3 reasons:
  1. Marriage is a holy institute.
  2. If a woman is aggrieved by the acts of the husband it may reach the courts under different acts.
  3. If marital rape is under the crime, then the whole family system would be destroyed.

Present Judicial stand
Marital rape has been a great matter of concern for the Supreme court as well. However, the Supreme court has faced several challenges in solving it by true acumen and legal knowledge and giving us landmark precedents. Marital rape has been questioned since the starting of the 21st century when Sakshi vs UOI case was heard where the petitioner recommends various changes to Law commission of India regarding sexual abuse.

However in the old times as well the case important case has been heard, emperor vs Shahu Mehrab 8 where the husband has been convicted under section 304A9 for having rash and negligently sexual intercourse with the minor wife.

In Sabetha v. T. Venkata Subbaih, the Andhra Pradesh10 High Court held: 'There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person.

In another case, Jaideep Bhanushankar Verma v. Union of India 11 where the Gujarat High Court opined that there is high time that a writ court undertakes the exercise of MRE to be termed as arbitrary and a woman's fundamental right to sexual autonomy subject to the whims of her husband.

In another landmark case of Nimeshbhai vs the state of Gujarat 12, it was held that Wives are not the personal property of the husband and the wives also have their own dignity, integrity and privacy. Marriage is an important institution however the marital rape has been disgraceful for the country and it has been a matter of great concern.

In the case of State of Maharashtra vs Madhukar Narayan13, it was held that every woman is having their privacy and no one can violate it without her permission.

In another famous case of Suchita Shrivastava vs Chandigarh Administration 14, it was held that "Marital rape exceptions violate the right to dignity, liberty and personal and sexual autonomy under Article 21; A woman's right to make reproductive choices is a dimension of personal liberty and her physical integrity flows from her right to life, dignity & bodily privacy under Art. 21.

However, the landmark judgement has come in 2017 which has been more related to the child marriage I.e.
Independent Thought vs Union of India 15. In the following case, the Supreme court was having questioned the age of consent for sexual intercourse between the age of 15 and 18. However in IPC, it was written that:
Anyone who is fifteen years of age".

However the Supreme court has given a landmark judgement in this case while giving the judgement the age of consent for sexual intercourse should be 18 years and as obiter dicta, it stated that the exception has been narrowed and arbitrary which lowers the dignity, privacy and integrity of women. However, it has been violated under articles 14 and 15 of the Constitution of India also violated basic human dignity under Article 21.

Legislative acts indirectly related

  1. Domestic Violence Act, 2005 16

    The Domestic violence act has been made in 2005 to save the women from any kind of violence, cruelty, harassment by the husband, parents of the husband and the relatives of the husband. Section 3 of this Act protects a girl child from any act of her husband that may harm or injure or endanger her health, safety, limb, life or well being, whether mental or physical, including protection from physical and sexual abuse by the husband.
  2. IPC ,1860 17

    In section 375, however, marital rape has been defined as an exception but in Section 498(a) of IPC, it was written that whoever is the husband or his relatives do anything cruel, inhuman against the women, then they are being imprisoned for three years or fine. However in 304A of IPC as well, where it is written that if any burns or under normal circumstances, if it has been found under cruelty or harassment within 7 years of marriage then it is dowry death and punishment is prescribed in IPC.
  3. Constitution of India, 1950 18

    In COI as well, there is a violation of articles 14 and 15 of the COI which are basic human rights and the most importantly Article 21 where there is a violation of Life and liberty which includes a huge scope of interpretation.
  4. POCSO Act, 201319

    The Act recognizes sexual exploitation and sexual abuse of children as "heinous crimes" and defines a "child" as any person below the age of 18 years. A combined reading of Sections 3, 5 and 6 establishes that if a husband of a girl child commits penetrative sexual assault on his wife, he would be penalized for "aggravated" penetrative sexual assault, which is punishable with rigorous imprisonment for not less.

UN Treaties

  1. Beijing Declaration
    The Beijing declaration20 which has been adopted in 1995 states that any physical, mental, sexual and physiological violence against women includes in the International laws which contain marital rape as well.

  2. UN Declaration on the elimination of violence against women 21
    This declaration is very important, It states that the marital rape against women has been violative of her dignity. And told that every country should incorporate in their legislation the marital rape as well though, it is not binding on all countries.
  3. International Court

    The ICJ states that Rape is a form of aggression and violates personal dignity. It is very harmful to victims as it suffers both physically and mentally.

Constitutional violation

Every person is entitled to live with personal dignity, good health and privacy which has been incorporated in our constitution of India. Though marital rape has been a problem of great concern marital rape does not give a woman its privacy, and dignity and also deteriorates her health.

Right to Dignity

The right to live with dignity has been considered the most important object of our constitution of India. In Frances Corale vs Union territory of Delhi22, it was held that The right to live with dignity has been enshrined under article 21 of COI and it includes all the adequate things like shelter, food etc. The marital rape has taken away the dignity which has been entertained by the wives as it is their body and it has the right to use it in whatever manner they want In another landmark case of the chairman of Railway board vs Chandrima das23, it was held that Rape is not only an offence but also it has been a crime against the society at large. In another case of Bodhisattwa Gautam vs Subhra Chakraborty24, it was held that Rape is an act which degrades, humiliates, and mortifies the women.

Right to health

Health has been one of the most important parts which have been interpreted through article 21 of the COI. Marital rape affects the women mentally and physically as it is a trespass to the body which I think has been considered murder of the women inside it. Child marital rape has been a matter of great concern before the Independent though vs UOI case, as the child is not ready both physically and mentally to bear a child which affects it health-wise and sometimes leads to death as well.

Right to equality

Equality has been defined in article 14 of the COI. The marital rape has violated the equality as it gives an edge to the patriarchal society which is at large and all the legislation has also been looking through the eyes of patriarchal society and forgets that everyone has their own life and own body and they have a right to use it.

Right to Sexual Privacy

Privacy, which is the most important object of Article 21, which describes the Right to life and liberty, has also been interpreted through the famous landmark judgement KS Puttaswamy vs UOI25 that the Right to privacy is a Fundamental Right and everyone has the right to their privacy. Through this, we can easily interpret that Marital Rape is taboo in the country. As the woman also has the privacy of their body and she may have sexual intercourse when she wishes to.

In another case, Anuj Garg v. Hotel Assn. of India26 stated that � "No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases".

Marital rape has been a great concern of privacy which should be corrected and the privacy of the women should not be violated.

Problems and Solutions

Marital rape is one of the most important concerns in whole country as well as in 36 countries where the legislation has not been yet made. Marital rape has been a problem in more than 50% of the house. 27

The main causes of this problem can be two folded - First geographically and politically.

Geographical problems

The main causes of these problems are forceful marriage due to poverty, fewer resources, less income etc. The people which have no food to eat have sometimes lessened their burden has married their girl child to avoid the responsibilities. The person due to illiteracy and not being aware of the legislation of 18 years has been the main cause of child marriage and marital rape. Another problem is the customs and traditions of the caste which if interfered with have become a problem for the country. Like in one village in the country, it was a culture of child marriage and even a powerful person can not stop it. Another problem is inter-caste marriage which has been prohibited in most areas.28

Another problem is emotional. The main problem is relationships. The problem is after the breakup, the person gets so depressed that she settles with the one which she avoid to. Another problem lies in the live-in relationship which has been broken after years due to cheating or fraud, the girl gets emotionally attached and for the sake of reputation the girl gets married which she does not want to.

Political problem

Another fold of the problem of not legislating on the marital rape is that the Marriage is an old institution which has been based on trust and love which has been the irony as it is stereotyped in our country. If the marital rape law is made , then the harassment cases against the husband may have been increased like the False rape cases. Many families are living as nuclear families and if the law has been made then the whole marriage will be broken down.

What is the solution to this problem? Going to court and listening daily about the exception is not the solution. Instead, the very good solutions are the counsellor and parents. They will have the person in29 emotionally problems and if the student talks to them, their depression may have gone. Another solution is awareness problem and I think with the change of time the parents also should get change and ready to do inter- caste marriage.

The last solution I think is the policies for the poor and illiterate should be implemented effectively. Another and the most important problem which should be known is the health of marital rape which should be treated as soon as possible. And I think instead of courts the husband should talk to their wives and gives them respect which she wants.

Marital rape has been a great matter of concern in the present time. There are some important legislation and case laws have been enacted and heard respectively but the problem has been still existing. The courts are less to do with it. Instead, it has been the relation between the husband and wife and they are the ones who should sort and instead of a crime, it should be a family matter which may be solved outside the court.

  4. 1999 (6) SCC 591
  8. AIR 1917 Sind 42
  9. 304A. Causing death by negligence.
  10. AIR 1983 AP 356
  11. (PIL) NO. 146 of 2021
  12. 2018 SCC OnLineGuj 732
  13. AIR 1991 SC 207
  14. 2009 (9) SCC 1
  15. (2017) 10 SCC 800
  22. AIR 1981 SC 802
  23. AIR 2000 SC 988
  24. AIR 1196 SC 922
  25. AIR 1196 SC 922
  26. (2008) 3 SCC 1

Award Winning Article Is Written By: Mr.Shyam Saxena
Awarded certificate of Excellence
Authentication No: JL41396723897-22-0722

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