Constitutional Law

Marital Rape in India

By Amit Sheoran

Introduction

As we know India is a secular country. Different types of religions are living in this country. According to their religion, the methods of marriage are also different from each other. After marriage spouses are free to make their physical relationship. It is considered that when a marriage has been done then both the partners agree to share their thoughts and can make physical relations when they wish. But if a male partner tries or makes physical relations without the consent of the female partner then it will be called marital rape. In another word, we can say that marital rape is an unwanted sexual relation by a spouse that is committed without consent or consent obtained by force, or threat of force, intimidation, or any threat or by anyway. These sexual acts can include intercourse, anal or oral sex, forced sexual behaviour with other individuals, and other sexual activities that are considered by the victim as unwanted or against the will of the other partner. But Marital rape is not legally prohibited as per the Indian penal code.  It is prohibited only in the situation when the woman is living separately from her husband due to any judicial proceeding or order by the court.

Difference between Rape and Marital Rape

When we listen to the term marital rape, then a question arises in our mind, That what is marital rape? And how it is different from the term rape? The answer is quite simple, The term rape is defined as, It is a type of sexual assault that basically involves sexual intercourse that is carried out by a person without the consent or will of the victim without having any relationship between the victim and defendant. While the term marital rape is defined as, it is also a type of rape, when the male partner tries to make or make sexual intercourse by using force against the will or consent of the female partner. The rape is committed by an unknown or maybe by a known individual without having any relationship with the victim. While in the case of marital rape the sexual intercourse is done by the partner.  After seeing the definition of marital rape we can say that the essential condition for marital rape is the relationship of husband and wife between the man and woman. This makes the issue more socially relevant in society. 

Factors responsible for the increasing number of marital rape

It is true that behind the increasing rate of any crime there are some responsible factors. Similarly, there are various factors that are responsible for the increasing number of marital rape. These factors are given as below:- 

  • Indian customs
  • married women are considered as the property of their husband
  • Treating women as an object
  • Women are considered as the sexual urge of men.

Types of Marital rape

There are basically three types of marital rape. These are given as below:-

  • Force only rape
  • Violent rape
  • Obsessive and Sadistic rape

Now I would like the explain these three types of marital rape in brief. As we earlier discussed the marital rape is also like rape but in the case of marital rape, there is the relationship of husband and wife exist between the two individuals. But further, marital rape is categorised into three different kinds. These kinds are explained as below:- 

  1. Force only rape:-  This kind of rape basically happens when the abuser desire to exert its control over the female by using force or power. This form of rape basically happens when there is a larger contrast between the physical size or strength of the abuser and victim, or in abusive relationships where the physical violence is non-existent.
  2. Violent rape:- This kind of rape is basically happen when the abuser uses extreme physical force for the purpose to injure the victim. For example, physical abuse could result in injuries on the physical parts. Like  Genital areas and breasts, etc. This assault includes physical violence by beating or punching or it may be rape with physical assault. As a result, the wife goes through immense humiliation and pain due to such a shameful act and it becomes a basic thing of their lives.
  3. Obsessive and sadistic rape:- This kind of rape basically happens when it takes the humiliation of the female experience up to another level. For example, we can say that the abuser rapes the victim by shameful means like urinating on the female, torcher,  acting out of fantasy or using hard objects during rape.

Status of Marital Rape in India 

As we all are aware that every human being irrespective of their gender has a basic right and authority over their own body. As per section 375 of the Indian Penal Code, 1860,  when the sexual intercourse done by a man with his wife and the wife is not being under fifteen years of age then it will not be considered rape. It will not be wrong to say that this section basically takes away the rights and authority of females which is unfair, unjust as well as undue. There are some rules and regulations which need to be changed and updated according to time. Because these orthodox regulations make the woman a Property of Man and as a result, it encourages such things that is why these rules need to be changed. On the other hand, most of the developed country has penalized marital rape. But the irony is that there are no such laws in India to protect married women against marital rape. But we can say that marital rape can’t be made a criminal offence in India because of three basic reasons and these are high illiteracy rate and extreme religious beliefs and the very ‘sanctity’ of marriage. It is considered that marriage in India is like a sexual contract because it gives the man an implied consent to sex in perpetuity with his partner. It reinforces the man as an ownership and rights over the wife as his property. As a result, it denies the woman any agency over her own body, its sexuality, and as well as its reproductive function. We can say that refusing to criminalize marital rape is like to accept that sexual coercion against women. 

Violation of Constitutional Provision

As we know that any act is considered as wrong only when some provisions of laws are violated. Similarly, marital rape is also violated various provisions and rights of women. Rights violate by marital rape are given as below:-

Article 14:– Article 14 of the Indian constitution talks about that all are equal before the law and equal protection of the law. Even though the constitution of India assures equality to all its citizens, the Indian Penal code degrades female victims who have been subjected to sexual tortures by their husbands. The wife is considered as the property of their husband and they are not given equal status in society as to men.

Article 21:- Article 21 of the Indian constitution talks about the Right to life and personal liberty. As per this right, the women have full authority over their body as a result they can take any decision, even for making physical intercourse. No one can force them against their will. But in the case of marital rape, it is completely against the provision of article 21. 

Laws relating to Marital Rape in India

Sir Matthew Hale who was the Chief Justice of England 17th Century, said that the husband cannot be guilty of a rape committed by himself of his lawful wife and by their mutual will or contract and the wife hath given up herself this kind unto her husband which she cannot retract”

But this statement cannot be considered a correct statement because it has no case laws or arguments that can support his views and point. It is very true that  laws in India are advanced but not capable to criminalize marital rape in India by standing its own.

So we can say that at present the law relating to marital rape are discussed under section 375 of the Indian penal code. There was an Amendment Bill passed in 2013 that is known as an anti-rape bill that defines sexual offences and acts which are strictly considered and also followed.

There are many social activists as well as NGO which help women especially those women who are suffering from marital rape and domestic violence but still, these are unsuccessful to call marital rape a serious or heinous crime.

We can take another act that is Protection of Women from Domestic Violence Act, 2005. This act talks about the reasonable civil remedies that are provided for the violence against women which also includes marital rape.

In the 42nd Report by the Law Commission, it was recommended that there should be an attached criminal liability in case of sexual intercourse of man with his minor wife. Even though the Committee refused the recommendation by saying that the husband cannot be guilty of raping his wife, no matter what age, since sex is considered as a parcel of marriage. But 1983, it was added in Section 376A IPC that if the husband makes sexual intercourse with his judicially separated wife then it will be a criminal wrong.

Case Laws 

There are various case laws that show the situation of India in the case of marital rape. We will discuss some of the case laws, that are given as below:- 

Bhupender Singh v. Union Territory of Chandigarh:- In this case, the Supreme Court of India held that even though there was a ceremony of marriage between the victim and the accused, the accused was already married and refused to examine the allegations in the complaint as marital rape. So it can not be treated as a criminal offence.

We can take another case law of Independent Thoughts v. Union of India, In this case, the supreme court held that The exception to marital rape, as applicable on the minor girls. And as result, it was declared unconstitutional for violating two main fundamental rights that are provided under Article 14 ( all are equal before the law and equal protection of the law) and the second is provided under Article 21 Constitution of India that talk about the right to life and personal liberty. It also said that it must be remembered that those days are gone away very long when a married woman could be treated as subordinate or property to their husband.  And it is clearly mentioned in Constitution that a female has equal rights as a male and no statute should be interpreted or understood to derogate from its position. 

We can also take an example of the 205th report on the prohibition of child marriage, According to this law, the Union of India should be directed to amend those laws which are relating to the age of marriage and also the minimum age of giving sexual consent so that both are under the conformity with one another. The petition also prays for the deletion of the explanation that is provided under section 375 of the Indian penal code that’s marital rape is not considered as rape unless and until the wife is under 15 years of age. 

Conclusion

After seeing the issue of marital rape, I would like to conclude that marital rape is also a type of rape. It should be criminalized. The word rape indicate that It is a type of sexual assault that basically involve sexual intercourse that is carried out by a person without the consent or will of the victim without having any relationship between the victim and defendant. Similarly, marital rape is also a sexual assault that is carried out by the husband without the will or consent of his wife. From a point of view, we can say that both rape and marital rape are wrong because they violate the fundamental rights of the individuals that are provided under articles 14 and 21 of the Indian constitution which talks about that all persons are equal before law and right to life and personal liberty separately. Even after both are wrong in the eyes of law, the irony is that marital rape has not been considered an offence till now.  It will not be wrong to say that rape is rape and marriage is no any excuse for that. That is why Marital rape is wrong equal to as rape, so it should be made criminalized. So that it can be helpful in protecting the rights of women and their status in our society. Hence I would like to say that there should be some laws, which can make penalize marital rape and prohibit it. The legislature should make strong laws to prohibit such wrongs and we all should come together to help the government to make it successful in making marital rape criminalized.

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