Author: Shivalika New Law College, BVDU, Pune
Editor: Priyal Sepaha Symbiosis Law School, Pune
“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of the helpless and vulnerable female.” ~ Arijit Pasayat (Judge of Supreme Court of India)
Rape- a detestable crime against women, is existing in our society for centuries. The word ‘Rape’ is derived from a generic term ‘Raptus’ which refers to the violent theft, applied both to person and property. Rape is the gravest sin. It is also considered as a crime against reputation. In Article 27 of the Fourth Geneva Convention, it is mentioned that “Women shall be especially safeguarded against any attack on their honour, in particular against rape, forced prostitution or any form of indecent assault.” There are many laws laid down by different countries’ judicial systems to eliminate this evil, but still, its roots have not been wholly eluded. In India also, we have laws criminalizing rape in our society, but it does not recognize marital rape as an offence.
The sexual intercourse historically was regarded as the right of spouses. There was also the custom of “bride capture” prevalent among the English, in which a man claims a woman through rape. Even there is a theory by Jonathan Herring that “a husband cannot rape his wife”. Today many countries have recognized Marital Rape as the most humiliating and debilitating crime and have penalized the same. Nevertheless, in India, it remains outside the purview of criminal law.
Marital Rape in India:
Marital rape or spousal rape is the performance of sexual intercourse with one spouse against the spouse’s consent.
The Indian legislation and judiciary declares rape as a criminal offence and provides punishment for the same. The definition of rape is codified under Section 375 of the Indian Penal Code (IPC) which comprises of all forms of sexual assault that is non-consensual. Whenever a man penetrates his penis or does sexual intercourse with a woman without her consent, it amounts to rape. Penetration in this context means that only the slightest touch of the penis to vagina amounts to the heinous crime of rape. Under the current law, ‘rape’ is not limited to vaginal penetration. It includes any forced oral or anal sex. The law states that a woman’s consent must be unequivocally communicated to the other person for not amounting it as rape.
Moreover, Section 376 of IPC prescribes the punishment for rape. The abusers get at least seven years of imprisonment as punishment by the law; this can be increased to life imprisonment according to the degree of crime done by the abuser and injury occurred to the victim. It also has provisions for monetary compensations to the victims and her family members.
In India, marital rape exists as an offence, de facto but not de jure. The exception 2 of Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age.
The consent has always been treated as a predominant element in determining the nature of sexual intercourse. The marital rape need not involve physical violence. It can be included under the ambit of sexual abuse and domestic abuse. In a recent judgement, the Supreme Court penalized non-consensual sexual contact with the wife between 15 to 18 years of age. Gujarat High Court also held that non-consensual marital rape breaks the institution of marriage plus breaks the trust and confidence between the parties. Additionally, Article 2 of the Declaration of the Elimination of Violence Against women includes marital rape as a form of violence against women.
Types of Marital Rape:
Battering rape: In this type, the women experience both physical and sexual violence in the relationship. The majority of victims of marital rape fall under this category.
Force-only rape: In this type of rape, battering is not the characteristic of the spousal relationship. Husbands use the amount of force necessary to coerce their wives.
Obsessive rape: This involves torture or sexual acts which are often physically violent.
Violation of certain Rights enshrined in the Constitution of India:
Violation of Article 14:
The concept of the right to equality embodied in our Constitution will remain as a dead letter if women of our country will not have any right over her own body and will not have any option of exercising their own choices as far as the sexual relationship in marriage is concerned. The Supreme Court held that the classification under Article 14 of the Indian Constitution must be reasonable and has some rational nexus to the aim that the act wants to achieve.Nevertheless, the exception present in section 375 contradicts this statement. Even though India as a nation is based on the theory of equity, but it has still not recognized the right of women.
Violation of Article 21:
The exception departs from the idea of “Right to Life and Personal Liberty”.
It further includes:
Right to dignity
Right to health
Right to privacy
Right to safe living conditions
Right to a safe environment
Right to bodily integrity
In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court held that the right to make choices concerning sexual activity relates to the dignity, privacy, liberty and bodily integrity of a person. The Supreme Court also upheld the view that forced sexual cohabitation is regarded as an infringement of fundamental rights. Every woman is entitled to sexual privacy. The law must uphold the bodily integrity of all the women irrespective of their marital status.
Reasons why women are hesitant to report Marital Rape:
Fear of their abuser
Deep dependency upon the abuser
Safeguarding the future of their children
Reasons for not criminalizing Marital Rape:
We live around the pool of different opinions. It is, hence of paramount importance to understand different opinions regarding this matter. There are specific arguments given in favour of not criminalizing the Marital Rape; some of them are:
Conventional views of marriage
Views of various religious doctrines
The preposition about male and female sexuality
The societal belief of inferiority of a wife to her husband
It will load the justice delivery system with more cases
False allegations against husband may increase
Existing laws related to Marital Rape:
The victims of marital rape can file a complaint under the Protection of Women from Domestic Violence Act 2005 under Indian law. However, the only civil remedy is offered to the victims by our judicial system, and the abuser is not considered to be guilty of rape.
A Victorian norm- “Doctrine of Coverture” regarded that men and women were unequal. In the Victorian period, the married women had no right to own a property. Women have always been treated as a tool for procreation. They constitute about one half of the global population, but still, they are placed at various disadvantageous positions. In this 21st century, where the technologies and digitization surround us, still, women are treated as a chattel transferred by her parents to their husbands. Their whole life starts and ends in pursuit of making everyone satisfied around them. Women are still expected to live according to the whims, wishes and fancies of the male members.
India is one of the thirty-six countries that still have not criminalized marital rape. Rape is a disgraceful crime, whether a woman is married or not. The married woman faces more difficulty as she resides with her abuser; furthermore, she is legally and financially dependent upon him.
The consent to marriage and the consent to sexual intercourse must be treated as two separate matters. One cannot claim marriage as a sacrament and remain ambivalent about such a crime perpetrated against a married woman in India. It is conceded that amending the law of rape is a tactful task, and in a country like India, where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws it might come into conflict with the statutory criminal system. Mere declaration of marital rape as an offence is not enough, something more is required to be done in order to sensitize the public as a whole because the real aim of criminalizing marital rape can only be achieved if the society acknowledges the myths and challenges prevailing in the society. We have to understand this – “If man is a God, wife is also a Goddess. She is not a slave of the family, but a friend and companion with equal rights and equal respect. Each is a Guru, a teacher for the other” ~ M.K. Gandhi.
 Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922
 Treaties, State parties and Commentaries- Geneva Convention IV on Civilians 1949
 Jonathan Herring,‘Theory “Family Law: A very short Introduction”’
 Indian Penal Code Section 375, No. 45 of 1860, India Code.
 Independent Thought v. Union of India, 382 SCC 2017
 Nimeshbhai Bharatbhai Desai v. State of Gujarat 2018
 Budhan Choudhary v. State of Bihar AIR (19559 SC 191; State of West Bengal v. Anwar Ali AIR 1952 SC 75
 2008 14 SCR 989
 Govind v. State of Madhya Pradesh AIR 1975 SC 1378; Kharak Singh v. State of U.P. (1963) AIR SC 1295
 State of Maharashtra v. Madhkar Narayan AIR 1991 SC 207
 Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.