This article is written by Solanki Shaw. The article will talk about Marital Rape and the laws which govern Marital Rape.
According to article 375 of the Indian Penal Code, rape is “non-sexual intercourse with a woman.” But, it exempts husbands from any legal punishment if he forces intercourse on his wife without her consent. Considering the wife is above 15 years of age.
What is marital rape?
Spouse rape or marital rape is forceful sexual intercourse without the consent of the spouse. Noticeably, the lack of consent or permission is an essential element that might not involve physical or domestic abuse.
Marital rape is seen as a form of domestic and sexual abuse.
Before we try to understand what is marital rape the role of consent, let us first try to understand the concept of rape.
History of Marital Rape
Historically, rape was considered a crime against the honour of the husband or the father. The damage was not recognized as damage against the victim but rather to her father’s or husband’s property. Thus, by definition of rape, a husband could not rape his wife. Rape was an external attack on the dignity of a woman by other men. So, rape laws were created to protect the property interest men had in their women. It was never about protecting the honour and the dignity of the women themselves.
Therefore, until recent decades, rape was understood as a crime against honour and reputation. It was only in the 1990s that the ICC statute recognized sexual violence as a crime against individuals.
Why is marital rape, not a crime?
A lawful marriage allows the conjugal act itself, thus marital rape is a contradiction of its terms.
How was the concept of marital rape challenged?
It was during the 19th century, during the feminist movement, activists challenged the presumed notion of the right of men to force sexual intercourse on their wives. The demands of the feminists were based on the rights of the women to control their bodies and fertility. Having control over sexual intercourse was a right to equality in marriages. It was since the 1960s that marital rape began to be criminalized in some parts of the globe. To date, some countries have criminalized it while some have not.
Some of the countries which initially criminalized marital rape are the Soviet Union in 1922, Poland in 1932, followed by a few others. The countries that were early to criminalize spouse rape are mostly developed countries.
Position of Marital Rape in India
If we talk about the Indian Penal Code (IPC), it only considers forced sex as a crime if the age of the wife is below 15 years of age. Thus, we can see that marital rape is not a criminal offence under the IPC.So, a victim of marital rape has to seek the Protection of Women from Domestic Violence Act 2005 (PWDVA). The law came into effect in 2006. Although the law outlaws marital rape it offers only a small civil remedy for the offence.
Here are two case studies to explain the role played by the judiciary in India.
The Chhattisgarh Model
The Chhattisgarh High Court passed a verdict saying sexual intercourse between husband and wife is not rape even if it is done by force or without consent. While the hearing of the case involved marital rape, the Chhattisgarh high court held out the fact that sexual intercourse between man and wife is not rape. Until or unless the wife is below 18 years of age. The complainant is the legally wedded wife of the husband. Therefore, any sexual act be it forced or not is not rape. The official order by the high court stated.
So, the man has been discharged from the offence of marital rape, the court has held the charges of unnatural sex under Section 377 of the Indian Penal Code.
In a similar case study, a Mumbai Additional Sessions judge said that any accusation of forcing sexual intercourse with a wife does not stand legal scrutiny.
The Kerala Model
The Kerala High Court rejected the appeal of a husband against divorce. The division bench of Kerala High Court observed that treating a wife’s body as something which is owned by the husband is marital rape. The court emphasized that marital rape is a good and valid ground to claim divorce. Although, the law does not recognize marital rape under the penal law. But that does not stop the court from recognizing the same as a form of cruelty and granting the divorce.
The Court further stated that the right to respect for one’s physical and mental integrity encompasses bodily integrity. And, any kind of disrespect or violation of bodily integrity is a violation of individual autonomy.
According to the court, the need of the hour is that marriages should come under secular law. There should be a common code of conduct of law for all communities at least for marriages and divorce.
We have reached a stage, where we should revamp the marriage law in our country. Also, the law should be equipped to deal with marital damages and compensation. Moreover, the law states that a spouse has a choice not to suffer. Also, the law cannot force or compel a spouse to suffer against his or her wish. The verdict states that the framework of divorce law must be to help people deal with their affairs.
In the year 2018, the Gujarat High Court ruled out that non-consensual intercourse by her husband was not rape. The same year, the Delhi High Court observed that both men and women had a right to say no, and marriage did not mean consent or permission.
Role of the Supreme Court related to Marital rape
The best thing the Supreme Court of India could do is to rule out in 2017 that sex with a minor wife will be rape. All that the Indian judiciary has done so far is to raise the age from 15 years to 18 years of age. That simply means that if your wife is above 18, you will have a hall pass for marital or spouse rape.
- To date, more than 100 countries have criminalized marital rape. However, India still stands among the 32 countries where the concept of marital rape is not criminalized.
- True, that our laws have been influenced by the British’s. While they have criminalized marital rape in 1991, we stand where we were.
Involvement of the United Nations for Marital Rape
In 2013, a committee represented by the UN recommended that the Indian Government should criminalize the concept of marital rape. The government has taken no or little interest to make any amendments.
The final conduct remains the same, and that is such a shame.
Damage brought by marital rape
Rape by a stranger is highly traumatic and can break a person emotionally and mentally. Whereas rape by a spouse or sexual partner over a long time can be devastating. It could result in an abusive relationship. Which could lead to domestic violence, breaking down emotionally or mentally. It can also be responsible for spreading sexually transmitted diseases.
Need of the hour
Our lawmakers need to understand that marriage should not be a license for a husband to rape his wife.
Notably, the parliamentary standing committee pointed out that if marital rape was made a crime, the family system in India will come under tremendous stress. It will result in practical difficulties.
- In 2016, the government told the Rajya Sabha that the concept of marital rape is an International one. It cannot be applied in our country due to several driving factors like poverty, illiteracy, social customs, and religious beliefs. Moreover, the sanctimony of marriage would be at stake.
- In the year 2018, a private bill called the Women’s Sexual, Reproductive and Menstrual Rights Bill of 2018 was introduced. It was brought by Congress MP Shashi Tharoor in the Lok Sabha to criminalize marital rape. The bill failed as it lacked support from the government.
Article 14 of the Indian Constitution states that the State shall not deny to any person the right to equality before the law. Or the protection of the laws within the territory of India. Although the Constitution of India guarantees equality to all, the Indian criminal law discriminates against women, who are raped by their husbands.
What can be summed up?
We are the largest democracy in the World. Our Constitution guarantees equality before the law and equal protection by law. But the Indian Penal Code does not recognize this as a crime. Once married or when a man’s wife is above the age of 18 years her consent does not matter. The husband can force the wife and can rape her. In the eyes of the judiciary, it is not a crime.
Disgusting, isn’t it?
Not stating a crime as a crime and not having strict laws to protect women against it makes them all the more vulnerable.
Marital rape challenges the basic rights of a human. Every individual has the right over his or her body. Denial of rights is a crime. Marriage is based on understanding. Marriage does not mean free consent. If consent is not there, it simply is rape. Rape is a crime against a person. Be it a man or woman, it breaks one down. Marital rape forces a victim to live with the rapist. We need to understand the impact and bring necessary changes to protect an individual from the traumatic experience of the crime.
Are women the only victim of marital rape?
No, men and women can be both victims of marital rape. But predominantly women and minors are the victims of any form of rape.