MARITAL RAPE IN INDIA: IS THERE A NEED FOR RECOGNITION?

By: Ipsita Aparajita Padhi

INTRODUCTION-

Rape itself is a grievous and inhuman offence against a woman that not only violates her dignity but also pushes her into a situation of life and death in several cases. Marriage is an institution that should be based on respect and dignity and when such circumstances arises within her own house, it decreases the wife to a mere object for sexual satisfaction. On March 13, 2020 rape law in the country was amended, yet there was no recognition of marital rape in Indian. No definite laws were provided in the amendment. Marital rape is still silent because of the social stigmas and the overpowering patriarchal society. It doesn’t only give the woman physical injury but also emotional and psychological injuries for life. The evil of marital rape remains hidden under the sanctity and belief in the institution of marriage. In this context, the belief that a wife is supposed to have it away together with her own husband no matter what is the condition of her health, if or not her consent is present or whether she is willing to have it or not is completely unacceptable to a “so-called civilised society” like in India.

MARITAL RAPE IN TODAY’S TIME-

We are definitely living in 2020 and call ourselves a modern and developed society but the irony is that India still stands one amongst the 36 countries in the world where it is still not a crime for a husband to rape a woman as long as she is his wife. According to a report made in 2006, it was estimated that marital rape is a criminal offence that is punished under the legal code in a minimum of at least 100 countries and unfortunately India is not one of them. Although marital rape is prevailing in India, it’s still hidden behind the sanctity and belief in the institution of marriage.[1] The exemption of marital rape from the legal code portrays the ownership of a woman to her husband. As given in a statement by Katherine Donnovan, “It’s immunity from the purview of the legal code is explained on the grounds that the feminine victim may be a wife. This justification is understood within the context of the dominant familial ideology and feminine sexuality which treats a wife as property and as having no sexual agency or deciding in gender within the marital contract”.[1]Mere criminalization of rape within marriage would neither be the solution nor will it put an end to this but it will surely be a vital step towards the sexual violence that has exceeded in the marriage.

MARITAL RAPE AND LAWS IN INDIA-

Despite of several amendments, law commissions and legislations we have failed to established one of the most heinous act as a criminal offence in India. It is the right of every woman to give her consent before any sexual relationship whether or not they are bind together by the institution of marriage.

As per our Constitution, every other law that is passed must be in confrontation with the principles that are highlighted in the Constitution. Now the question is how the exemption of rape within marriage fails to fulfil the principles of this conformity under the provisions of Article 14 and Article 21 of our Constitution. Although a husband’s violent or non-consensual sexual act can entitle the wife to bring charges of  assault on him, the most important thing that is required is the incorporation of liability in cases of marital rape in our legal code. The protection from violent and unwilling sexual intercourse within marriage should be provided all the women and not only to the child-brides under 15 years of age.

Whenever we talk about marital rape, factors of gender, family honour and reputation comes into play rather than the rights and individuality of the woman.

It is high time that the autonomy of a woman over her own body and as an individual be recognized without considering this fact that whether she is married or not and whether she is of 15 years or below.

Aaccording to the Indian Penal Code, the circumstances where the husband can be criminally charged for an offence of marital rape are: –

  1. When the wife is between 12 and 15 years, the offence is punishable with imprisonment upto 2 years or fine or even both.[2]
  2. When the wife is below 12 years,the offence is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.[3]
  3. Rape of a judicially separated wife, the offence ispunishable with imprisonment upto 2 years and also fine.[4]
  4. When rape is committed with the wife of above 15 years then it is not punishable.[5]

CURRENT JUDGEMENTS ON MARITAL RAPE-

In 2018, the Gujarat tribunal in its recent judgement of Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, observed that marriage doesn’t give the right to the husbands to forcibly have a sexual relationship with their wives and that the wives are not mere objects of their sexual gratification. The husband doesn’t own the body of his wife just because they are married. In this case, the wife accused the husband stating that on several occasions sexual activity was forced on her without her consent. It was argued on behalf of the husband that marital rape is still not recognised and hence it is not a criminal offence. At most prima facia a case could be made under Section 498A of IPC i.e. hhusband or relative of husband of a woman subjecting her to cruelty. Further the counsel on behalf of the wife argued that this case was of marital rape as the sexual intercourse was against the willingness of the wife and that the consent was obtained by the husband by force both physically and sexually. The Bench stated that, “It is high time to discharge the notion of considering implied consent in marriage. The law must protect the bodily dignity of a woman no matter if she is married or not”.[6]

RAPE LAWS WITH NO-DISCRIMINATION-

Section 375 of IPC itself provides discrimination by categorising women into married and unmarried, further protecting the dignity of unmarried woman but failing to recognise that of the married ones. It is completely absurd that one part of the law protects the women from forcible sexual act while other part simply stays silent as long as the woman is married. This discrimination of categorising woman is a violation of Article 14 of the Constitution. Through various judgements and legislations the Supreme Court has made clear that the sanctity of a woman and her willingness to have sexual intercourse comes under Article 21 of the Constitution. But section 375 exception 2 stands against this and violates the basic human rights and also it contradicts with the provisions present in the Protection of girls from Vviolence Act, 2005.

JUDICIAL STAND

Looking at the history of marital rape, comes the case of Queen Empress vs. HareeMythee.[7] Here, the husband is charged in four different forms for causing death of his wife by several bodily injuries. The Court stated that in the case of a married woman, the rape laws won’t be applied within the husband and his wife. In another case, Emperor vs. Shahu Mehrab[8] the husband was charged under section 304A of Indian Penal Code for the cause of death of his minor wife by negligent sexual activity with her.

The right to privacy which is every person’s right regardless of gender, is violated by non-consensual sexual intercourse. The State fails to recognize this. The judiciary seems to neglect the part that rape happen within the institution of marriage.

 Problem lies within the thinking of the society, that marriage is sacrosanct and that the wife should worship her husband. It is very much shocking to see how the law is ignoring such violation of the fundamental right of freedom of a spouse.

CONCLUSION-

Marital rape should be criminalized in India through the private rights approach against the violation of the dignity of the women. There are several women associations trying to aware the public regarding this and also to pass the legislation on sexual violence. However till now rape within marriage is not completely criminalized in India and it will continue likewise unless the legislators and the society acknowledge the individual rights of every woman even though she is bind by the institution of marriage. If this practice continues without any proper laws then the women of the country will be subjected to mere sexual objects and will be continued being targeted as victim both by their husband and the society. There is a serious need to acknowledge a wife as an individual rather than the traditional concept of considering her as a mere chattel and give her the respect and dignity that she deserves as any other individual.


[1]Pallavi Prasad, Why It’s Still Legal For Indian Men to Rape Their Wives, THE SWADDLE( Dec. 10, 2020, 11:00AM), https://theswaddle.com/marital-rape-inda-decriminalized-crime/.

[2]Donnovan, Katherine, Family Law Matters, Pluto Press, 1993.

[3]Indian Penal Code (45 of 1860), Section 376(1).

[4]Indian Penal Code, Section 376AB.

[5]Indian Penal Code, Section 376A.

[6]Indian Penal Code, Exception to Section 375.

[7]Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, 2018 Guj 732

[8]Queen Empress vs. Haree Mythee(1891) ILR 18 Cal.49.

[9]Emperor vs. Shahu Mehrab0 [AIR 1917 Sind 42].


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