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Marital Rape: A Harsh Reality Behind Closed Doors

In India Marriage Institution is given a paramount importance in every individual's life . India is the only country which is known for its variety of culture, tradition , custom , belief and most of all sanskara . Marriage is considered as a holy union or an eternal bond which cannot be easily broken up.

Indian society believe that relationship arising out of legal wedlock is a purest form of relationship which is socially, morally and legally accepted by the majority of population but see the irony such a purest relation is also getting polluted when a married women becomes the victim of rape under marriage which is also known as spousal rape or Marital rape where her own husband forcefully and without her free consent commits sexual intercourse.

One of the most heinous crimes that may be committed in India is marital rape. The crime of marital rape is not less serious than that of rape; rather, it is a form of rape. Marital rape typically affects married women. It poses one of the largest risks to India's gender justice system. It is one of those social ills that has been in India from antiquity and still causes havoc today. Marital rape has never been viewed negatively by Indian society. Due to a number of factors, it is rarely opposed by anyone in Indian society.

The Indian judiciary offers some optimism in this area, but it is constrained by the fact that the legislature, not the judiciary, is responsible for making legislation. In India, there are no effective laws against marital rape. Whatever rules are in place in India, they are not sufficient to prevent a crime as heinous as marital rape. To stop marital rape in India, some tough regulations must be introduced.

Introduction:
Justice Arjit Pasayat said, correctly:
"A rapist lowers and defiles the soul of a vulnerable female whereas a murderer destroys the physical frame of the victim."

"Marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized."

Since the beginning of time, India has experienced numerous social ills. Some of these societal problems include Sati Pratha, Child Marriage, Forced Marriage, Devdasi System, Purdah System, etc. While many of these social ills have vanished from India through time, some are still very much present and continue to cause problems for the country.

One of such social evil is marital rape which has existed in India since ancient times and prevalent in modern India as well. It is one such tough social evil which has not disappeared from the map of India with the passage of time and still a ubiquitous phenomenon in India. The attitude of Indian society as well as the Indian legislature is also somewhat indifferent towards the menace of marital rape.

However, the attitude of Indian judiciary is not so indifferent towards the evil of marital rape rather the Indian judiciary in general is in favour of elimination of devil of marital rape from the country as is evident from its various landmark judgments. In most of the countries of the world marital rape is prohibited and a punishable offence but that is not the case as far as India is concerned.3 In India, there are no effective laws to tackle the menace of marital rape.[1]

The English judge and lawyer Sir Matthew Hale stated, in 1736, in his leading treatise: '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.'[2]

Even as India marks 78 years of independence, women in the country continue to face discrimination and lack true independence. Rape in and of itself is a crime against women, a violation of their dignity and self-respect, and when it takes place inside the confines of a married house, it reduces the woman to the status of a sexual object. In India, marriage is a revered social institution .

The legal restrictions placed on a husband and wife's sexual interaction are one of their partnership's most distinctive features. But nowadays, getting married is a licence to rape. Therefore such kind of mentality of Indian males that getting married is getting a green signal for creating sexual relations with a wife should be changed its not true even after marriage also a female holds a right to sexual autonomy .

"Rape is Rape" it's not a M'c Donalds burger which can be customized as per customer's want .

Meaning of Marital Rape:
First, we'll talk about the term "rape" here.

The Latin term "rapio," which meaning "to seize," is where the English word "rape" originates. Rape is defined as the forced or coerced performance of sexual acts with a woman without her consent. The word "rape" literally means "forced seizure."

It refers to the ravishment of women against their will, without their consent, with their consent obtained through coercion, fear, or fraud, or the forced carnal knowledge of a woman . The legal definition of Rape has been defined under section 375 of IPC,1860 which is provided as follows :

Rape: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de�scriptions:
  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 law�fully 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 stupe�fying 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. Explanation:Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception:
  1. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape; and
  2. in the Exception, for the word "fifteen" substitute the word "thirteen".

Conviction is made under section 375 I.P.C. proper[3];
Along with this rape punishment is provided under section 376 of IP, 1860

"Rape means unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the victim."[4]

Marital rape is in existence in India which is one of the disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.

Marital rape in layman language means when a husband have sexual intercourse with her legally wedded wife without her free consent.

As per the legal definition , 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 give her consent.

" It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.

Marital rape is also called as spousal rape where with in a legal Marriage husband is the perpetrator either he try to make sexual relations by using force upon her wife or obtain the consent by fraud for doing such an act is said to commit marital Rape. Under Marital Rape both parties are known to each other they both are legally married husband and wife . It is so hard to accept the reality that a female's own husband can commit such a shameful act .

Rape is an outrageous act of violence against a woman's private person and might be seen as such. It is the ultimate assault on a woman's self-worth. It is appropriately referred to as "deathless disgrace and the gravest offence against human dignity" as said by the Supreme Court of India. Rape is not just a physical assault but it also ruins the victim's entire identity.[5]

Effects Of Marital Rape

Marital Rape causes physical, psychological and mental health issues to the female victim which hurt the emotional as well as the physical wellbeing of the women in the long run. This section is widely bifurcated into psychological and health issues that a woman may encounter during or after rape.
  1. Psychological Effects
    women who have experienced marital rape have experienced sadness, ptsd, fear, low self-esteem, rape trauma syndrome, as well as sexual instability, inaccessibility, or malfunction. a woman is expected to satisfy her husband's sexual needs as soon as they get married. for any female experiencing this for the first time, the idea that something like this can be necessary without her consent must be shocking. any subsequent events must appear horrifying yet unimportant to her, but she is aware that there is no point in resisting or disobeying her companion. the woman fears that her family's reputation will be damaged. she thus feels pressure to support the members of her family.
     
  2. Health Issues
    Most women have chronic pain as a result of being raped frequently. This ultimately results in black eyes, fractured ribs, knife wounds, and body marks from the assault. These are just a few instances of the things that women could go through. The majority of victims have described experiencing pain and vaginal bleeding. Intense vaginal rupture is the cause of bleeding. Anal sex prisoners may experience bleeding, pain, and anger.

If the abuse occurrence is somehow brought back to mind, they might feel sick. Unwanted pregnancies are also possible at this time, which adds to the victim's mental and emotional stress . Those forced to have anal sex can report bleeding, pain and irritability. They may feel nausea if are somehow reminded of the incident of abuse. Amidst this unwanted pregnancy can also be caused and this further causes mental and psychological pressure on the victim[6].

especially if the victim is a teenager or young adult. This may necessitate preterm delivery and have a negative effect on the baby in question. Vaginal rupture can also result in infertility, which may prevent the person from ever having children. In the event that the victim ever wants to begin family planning, this might drastically harm their future.

They can have permanent scars. The victims may be motivated by this to commit suicide. The victim may believe that suicide is the only alternative because of the victim's beliefs about marital rape and the victim's inability to report the abuse.

Types Of Marital Rape

The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society:

Battering Rape:
Women who have been raped or battered face both physical and sexual abuse in the relationship in a variety of ways. Some women experience physical abuse before or after the sexual assault, or the rape could occur after a physically abusive incident in which the husband forces his wife to have sex against her will in an effort to mend fences. This group includes the vast majority of victims of marital rape.

Force-only Rape:
In force-only rape, husbands simply employ the minimum amount of physical pressure necessary to persuade their wives; physical abuse may not be prevalent in these marriages. Usually, assaults happen after a woman declines to engage in sexual activity.

Obsessive Rape:
Other women undergo what has been described as sadistic or obsessive rape; these assaults often involve physical violence and involve torture and/or bizarre sexual behaviours. The most prevalent type of marital rape is beating rape. The term "battering rape" was used to describe 48% of all occurrences of marital rape.

Marital Rape Law In India

Despite the fact that we have advanced in every imaginable way, marital rape is not a crime in India. Despite modifications, law commissions, and new legislation, one of the most humiliating and devastating acts is not a crime in India. When considering the options available to a woman in a marriage, it becomes clear that the laws have either been nonexistent or ambiguous, and everything has hinged largely on how the courts have interpreted them.

After deliberations in the Select Committee, Clause 359 of Macaulay's Draft Penal Code was refined into its final form, which is now Section 375 of the Indian Penal Code. The Indian Penal Code (IPC) has a section on rape under Section 375. Rape is punishable under Section 376 of the IPC. The rapist should be punished by imprisonment of either sort for a term that shall not be less than 10 years, per the section .

The exception is that when a man engages in sexual activity with his own wife and she is over the age of fifteen, it is not rape. Unless the woman raped is his own wife and she is not under the age of 12, in which case he shall be punished with imprisonment of either description for a term that may extend to 2 years with fine or with both. The term may also extend to life or for a term extending up to 10 years, and he shall also be liable to fine.

This clause, which deals with sexual assault, specifies that rape inside marital bonds is only considered an offence if the wife is under 12 years old, or if she is between12 to 15 years, an offence is committed, however, less serious, attracting milder punishment.

In clear violation of laws protecting human rights, the wife has no legal protection after the age of consent exceeds 15, which is illegal. How can one law protect individuals under the age of 15 from sexual abuse while requiring that the legal age of consent for marriage be 18? The woman has no recourse after the age of 15. The Indian Penal Code was changed in 1983 to make spousal rape committed during a time of judicial separation a crime.

According to the Indian Penal Code, the following situations qualify as marital rape offences for which the husband may face criminal charges:
  1. If the wife is between the ages of 12 and 15, the offence carries a maximum 2-year prison sentence, a fine, or both;
  2. When the wife is under the age of 12, the offence is punishable by either type of imprisonment for a time that must not be less than 7 years but may extend to life or for a term extending up to 10 years, as well as being subject to a fine.
  3. Rape of a legally separated wife, a crime punishable by up to two years in prison and a fine;
  4. Wife rape committed after the age of 15 is not a crime.[7]
The Law Commission of India examined the subject of marital rape in its 172nd Report but ignored calls to repeal Exception 2 to Section 375 IPC because it "may lead to excessive interference with marital connection" and threaten the institution of marriage .[8]

The Verma Committee Report has suggested eliminating the act's provision for marital rape. The study confirmed that having a spouse does not constitute giving your consent to having sex. Therefore, the relationship between the accused and the victim should not be relevant in determining whether to charge the accused for the offence .

The Indian government was advised to make marital rapes a crime by the UN Committee on Elimination of Discrimination Against Women .[9]

Marital Rape Is A Violation Of Constitutional Rights:

Discriminating against women solely on the basis of their marital status is incredibly unfair and clearly in violation of the fundamental rights guaranteed by Part III of the Indian Constitution. One of the fundamental rights that make up the foundation of fundamental rights is the right to equality.

All citizens have equal protection against the law and equality before the law under Article 14 of the Constitution, which prohibits discrimination against any person based on caste, class, creed, age, sex, religion, or place of birth. The right to equality is violated by an exception under Article 375 of the Indian Penal Code. If a citizen has experienced discrimination based on their class, caste, or creed, they have the right to file a lawsuit in court.

This Fundamental Right protects residents against discrimination, aims to eradicate all forms of inequity, and maintains peace among the populace. However, married women above the age of 15 do not have the legal authority to report a sexual assault that their husband has perpetrated against them, violating their right to be free from sex-based discrimination as well as age and marital status.

The fundamental right guaranteed to all persons, regardless of country, is the right to life under Article 21 of the Constitution. Married women above the age of 15 who are subjected to marital rape are significantly deprived of their right to life, personal liberty, and security. The United Nations has often stated that violence against women, whether it takes place in public or private, affects or nullifies the exercise of their fundamental rights.

Gender violence has been particularly mentioned by the CEDAW Committee as impairing or completely eliminating certain rights. The fundamental human rights agreements that the majority of nations have ratified safeguard these rights. The ICCPR, ICESCR, Convention against Torture (or "Torture Convention"), and CEDAW are the main international treaties defending human rights. Human rights conventions obligate states to control private actors' behaviour. Marital rape is not specifically addressed in the instruments, as it is with all other specific human rights crimes .

As was mentioned before, the CEDAW Committee and other treaty authorities have construed these rights to ban marital rape. States that ratify these treaties acknowledge that the treaty bodies have the authority to monitor state compliance with them and to give broad comments and recommendations that constitute the substantive content of the rights and types of obligations. The focus of the analysis then shifts to the particular and most fundamental human rights that marital rape violates.

In India, although it is not legal, marital rape does occur. The judiciary in India, however, appears to be working against itself, whereas in other nations either the law-makers have criminalised marital rape or the judiciary has played a significant role in recognising it as an offence.

In Bodhisattwa Gautam v. Subhra Chakraborty 2015 SCC 490
The right to life, which is protected by Article 21 of the Constitution, was cited by the Supreme Court as evidence that rape is a crime against fundamental human rights. However, by ignoring marital rape, it undermines this same assertion. Because of the broad marriage rape exemption in Section 375 of the Indian Penal Code, 1860, women who encounter and need to report sexual assault from their spouses are currently denied state protection .

Marital Rape Outside Of India And Punishment

Since 1979, some nations have criminalised marital infidelity by enacting laws to protect married women, abolishing exemptions from the law, or adding new punishments to the offence.

Brazil, Austria, Belgium, Finland, Canada, the Dominican Republic, Ireland, and Israel, among others, have contributed significantly over time by amending the law governing codes of conduct or by making them permissible before the 1980s or afterward.
  • In Austria, the maximum sentence for a rape that took place in a marriage in 1979 is 15 years in jail.
  • Crimes committed in Finland in 1994 had sentences of up to four years in jail, and violent acts against married women carried harsher penalties.
  • In Jordan, a man who sexually assaults his married wife faces a harsh sentence of at least 10 years in prison.
  • Ireland: Irish criminal law no longer allows exceptions for marital rape.
  • Germany: Liberation was ended in 1947.

In the Dominican Republic, husband rape was made a crime in 1997.
  • Marital rape has occurred in the US.
  • Israel: The Israeli Supreme Court ruled in favour of marital rape in 1980.
It was regarded as a serious offence that might result in up to 16 or 20 years in prison. India: Although there is an exception to the IPC's section 375, which states that a man who has intercourse with his wife over the age of 15 is not regarded to have been raped by her husband, the country does not consider rape to be a crime. While engaging in sexual activity with a divorced woman is illegal and punishable by a 7-year prison term, it is considered rape.

The Present Legal Position Of Marital Rape:

According to Indian law, the IPC's exception to section 375 states that when a woman is married and at least fifteen years old, her husband's sexual intercourse with her is not considered rape. Prior to the 2013 revision to the IPC, the punishment was considerably lowered and may have reached two years in prison or a fine if the wife was between the ages of 12 and 15. Only when the wife was under 12 years old did it qualify as rape.

The 2013 amendment removed this provision but did not acknowledge the concept of marital rape and instead chose to maintain the previous legal framework. It is important to note that the Justice Verma Committee Report has made recommendations.

The uniqueness of Indian law is that it upholds the idea that the husband's rights come first and take precedence over those of the woman, even when the latter is far younger than the required age for marriage. The legal implication of not recognising forcible sex with a minor wife (between the ages of 15 and 18) as rape would undoubtedly be to not treat forcible sex with an adult wife as rape at all. The majority of marital rape is still not covered by the law, and the only circumstance in which it does apply is when legally separated couples are not living together in accordance with section 376-B of the IPC.

Hence In India In this article, sexual autonomy refers to the role of women in decisions related to when, with whom, and how sexual relations were practised and includes the idea that women must have freedom to decide on their sexual relationships. Marital rape is not recognised as a crime under criminal law, and society believes that after marriage, the wife is the sole property of the husband .[10]

Conclusion
Marital rape is a reality in our society, and many victims endure their suffering in silence because there are no legal protections for this horrible crime and a severe lack of public support. To help the victims receive justice, Section 375 needs to be changed in order to remove the exception and make marital rape a crime.

These women's fundamental human rights are being infringed in the name of marriage and marital responsibilities. The belief and idea that a woman is the husband's property is fatal to the status of women in India. Due to a lack of the required legal protections, they are unable to do anything and are compelled to endure the suffering in quiet. Taking into account how Indian society is burdened with discriminatory social norms and customs, the major change needed is in the outlook and perspective of citizens.

Apart from judicial initiation, raising awareness is what we need most. According to the UN, "protecting women's human rights through legal means is just as vital as educating boys and men to consider women as valuable participants in life, in the development of society, and in the accomplishment of peace."

Marriage preservation and institutional trust-building are two of the key goals of matrimonial legislation, however this goal cannot be advanced at the expense of women's fundamental and human rights. Women must be granted the freedom to choose and safeguard their physical integrity.

Thus, denying justice and protection for maintaining the sanctity of marriages is a total failure of the law to protect its citizens. The law should not encourage forced cohabitation and should not protect a raping husband.

As a result, it can be concluded that the solution does not lay in refusing to make the urgently needed amendment out of concern that society will misuse it instead it calls for a more effective application of the law. The law must be put into effect in order to protect victims of abuse in marriage and not just to be used as a tool for harassment because its implementation is the most significant issue in our society. The police must conduct a proper and in-depth investigation in order to distinguish between the legitimate cases and the frivolous ones.

References:
  1. Prof. S.N Misra, The Indian Penal Code, Central Law Publications,20th edition, reprint 2017
  2. Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016
  3. https://indiankanoon.org/doc/185050052/
  4. https://en.wikipedia.org/wiki/Marital_rape
  5. https://www.jstor.org/stable/26636357
  6. https://www.lawctopus.com/academike/marital-rape-a-crime-undefined
  7. https://www.researchgate.net/publication/223831051_A_review_of_marital_rape
  8. Marital Rape in India: A Critical Study, Dr. Raj Kumar Yadav Central University of Punjab
  9. http://ijlljs.in/wp-content/uploads/2015/06/MARITAL-RAPE-final-draft.pdf
End-Notes:
  1. Makkar, Sarthak. (2019). Marital rape: a non-criminalized crime in India. Retrieved January 19, 2020 from https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
  2. The IPC (n 2) Section 375 Exception 2; Independent Thought vs Union of India (n 28) [71]�[73]; Sir Matthew Hale, The History of The Pleas of The Crown (1st ed, E and R Nutt and R Gosling 1736) 629; The Justice Verma Committee Report (n 25) 113 [72]; P K Chaturvendi, 'A Legal History of Marital Rape: The Erosion of Anachronism' [2010] Indian Journal of Law and Justice 122, 122�23; Kim
  3. Sec 375 Indian Penal Code ,1860
  4. The Indian Penal Code,1860 (45 of 1860), s. 375
  5. Galgotias Journal of Legal Studies, 2013 GJLS Vol. 1, No. 1, ISSN. 2321-1997
  6. Sarkar J. Mental health assessment of rape offenders, 55(3) Indian J Psychiatry235‐243 (2013).
  7. Indian Penal Code (45 of 1860), Exception to Section 375.
  8. Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at http://www.lawcommissionofindia.nic.in/rapelaws.htm (last visited on February 6, 2016
  9. https://theleaflet.in/only-36-countries-have-not-criminalised-marital-rape-india-is-one-of-them/
  10. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5574684/

Written By: Shikha Bhatnagar (Research Scholar)

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