Rape is a sexual assault implying sexual intercourse or sexual penetration against a person without their consent. The term rape is sometimes used conversely with the term sexual assault.
Marital rape, also known as spousal rape, means unwanted intercourse by a spouse on their partner, obtained by threat of force or physical violence, or when she cannot give consent. The words " unwanted intercourse " refer to all sorts of penetration perpetrated against her will or without her permission.
In India, the definition of rape under section 375 of the Indian Penal Code does not include marital rape as a criminal offense. Exception 2 of section 375 says that a Sexual relationship between a man with his wife, where the wife's age is more than fifteen years, is not rape. It is based on the notion that once married, a woman does not have the right to refuse sex with her husband, and gives husbands the right to have sexual access to their wives, direct breaching the principles of human rights and providing husbands with a license to rape their wives.
Thus, in India, marital rape is not a criminal offense and is only covered under the definition of domestic violence under the Protection of Women from Domestic Violence Act, 2005. The domestic violence Act is a civil law that only provides civil remedies for the wife.
Marital rape- An Understanding
Marriage refers to a legal and emotional contract between two persons. Sexual intercourse between husband and wife is legal. Due to the legality of sex, the husband gain right over the wife, which becomes the primary reason for marital rape. While the legal definition differs, marital rape is defined as any unwanted sexual intercourse obtained by force, the threat of force, or when the wife cannot consent. Per criminal law, the husband can't be held guilty of raping his wife because of presumed matrimonial consent to cohabit. Despite the increasing cases of marital rapes in our country, it is still not defined in any statute or law.
Article 14 of the Indian constitution lists the Right to Equality, but women face infringement in their rights in cases of marital rape.
History of the anomaly of marital rape
18th century English law had a set of rules where the wife was considered dependent on her husband, incapable of independent existence. Husband and wife were marked as one entity, and those of her husband subsumed all the wife's rights (including her sexual rights). Exception 2 of section 375 resulted from these blanket rules that arose in 18th-century English law.
The husband was the master of the wife and enjoyed privileges over her body and could not be fathomed for raping his wife.
In 18th century England, women were confined to the domestic sphere, and the state ensured they remained dependent on their male counterparts. It is strange to presume that this still applies to modern-day India in the 21st century, where women have become individualistic and capable of giving consent. Women are no longer dependent. They are independent citizens under the law.
Types Of Marital Rape
Legal scholars identify the following three kinds of marital rape as generally prevalent in society:
In battering rapes, a partner (no matter a man or woman) experiences both physical and sexual harassment in the relationship and shares this violence in various ways. Some are assaulted or may follow a physically violent episode where the husband wants to make up and constrains his wife to have sex against her will. Most marital rape victims fall under this category.
The assaults are typically after the woman has refused sexual intercourse, and husbands use only the force required to coerce their wives; battering may not be the attribute of these relationships.
These assaults involve torture, outrageous sexual acts, and physical violence.
48% of all cases of marital rape were listed as battering rape.
What can Help?
For the victim-
- Family and friends can become great sources of support and comfort.
- Shelter staff also may help by pointing out options to consider and providing a temporary safe place to stay.
- Legal aid services can offer free or low-cost legal information or assistance.
- Support groups allow victims to talk to other people dealing with partner abuse.
In the Community-
- Express support for vigorous enforcement of current laws and legislation to combat domestic and sexual violence.
- Support educational and prevention programs on local, state, and national levels.
Provisions relating to Marital Rape
Marital rape is a sexual relationship with one's spouse without the spouse's consent. It is contemplated as a form of sexual abuse.
In a general sense, sexual intercourse by a husband with his wife had been regarded as a right of spouses with or without consent. Section 375 of IPC gives an exception providing immunity to marital rape.
- Firstly, Section 375 explains rape and notes down 7 notions of consent that would constitute the offense of rape by a man in a general sense.
- Moreover, Exception 2 to Section 375 exempts non-consensual sexual intercourse between a husband and a wife over fifteen years of age. Still, in Independent Thought v. UOI (2017), the Supreme Court increased this age to 18.
- As per the Independent Thought’s case, “Sexual intercourse by a man with his wife, the wife above the age of eighteen years, is not rape.”
Therefore, the court considers this age (18 years) by setting this case precedent.
Marital Rape and Laws in India
The definition of rape expressed in Section 375 of the IPC consist of all forms of sexual assault, including intercourse without a woman's consent. However, Exception 2 to Section 375 discharges unwilling sexual intercourse between a husband and wife over fifteen years of age from Section 375’s defines rape as an act of prosecution. Section 376 of IPC provides punishment for rape. As per this Section, the rapist must be punished with imprisonment for a term which shall not be less than 7 years and can extend to life or up to 10 years and should also be liable to a fine.
As per the Indian Penal Code, the instances where a husband can be criminally prosecuted for an offense of marital rape are as under:
- If the wife is between 12-15 years old, the offense is punishable with imprisonment up to 2 years, a fine, or both.
- If the wife is below 12 years of age, the offense is punishable with imprisonment that should not be less than 7 years but can extend to life or for a term up to 10 years and shall be liable to a fine.
- The rape of a judicially separated wife is punishable with imprisonment of up to 2 years and a fine.
- The rape of a wife above 15 years of age is not punishable.
India is among the thirty-six countries that still haven't criminalized marital rape. High and Supreme Courts are currently working on various petitions challenging the legality of marital rape.
As per the 42nd Report by the Law Commission, it is said that criminal liability must be attached to the intercourse of a man with his minor wife. Moreover, the committee refused the recommendation stating that the husband can not be guilty of raping his wife of whatever age as sex is considered a parcel of marriage.
The appeal of the women in Domestic Violence Act, 2005 includes practicable civil remedies for the violence against women, which also sums up marital rape. Having sexual intercourse without consent can violate the dignity and thus be considered a criminal offense. The act has provided few civil remedies such as acceptable, protection, etc.
Right To Live with Human Dignity
Article 21 states the right to live with human dignity and all that accompanies it, to be specific, the minimum essentials of life, such as clothing, shelter, food, and facilities for reading, writing, and expressing oneself in different forms, freely moving, mixing and matching with other human beings. The right to have human dignity is a standout amongst the most fundamental components of the right to life which perceives a person's independence.
The Supreme Court has held in a sequence of cases that the offense of the right to live with the human dignity of the victim of the crime of rape. In this manner, the marital exception principle violates the spouse's entitlement to live with human dignity. Any law that damages ladies' entitlement to live with dignity and gives spouses the power to drive the wife to have sexual relations without her will is unlawful.
Right To Sexual Privacy
The Right of Privacy under Article 21 states a right to be permitted to sit unbothered with any intense sex damage. The right to protection and sexual security expressed that the teaching of marital exclusion to rape damages a married lady's entitlement to protection by driving her into a sexual relationship without wanting to.
The Supreme Court says that every woman is entitled to her sexual privacy, and it is not open to anyone to defy her privacy as and whenever he wishes. A right to privacy exists in a sexual relationship, even inside a marriage. By decriminalizing rape inside a marriage, the marital exception teaching damages this right of privacy of a married lady and is consequently illegal.
Right To Bodily Self- Determination
The privilege of substantial self-assurance is also discussed under Article 21, even though the Constitution doesn't explicitly remember it. The idea of the right of self-assurance depends on the conviction that the individual is a definitive chief in matters intently connected with their body or prosperity. The more personal the decision, the more vigorous the person's privilege. They will be the leading creators of his destiny, which decides his reality. A sexual relationship is among the most individual decisions a lady holds for herself.
Thus, it is presented that the marital exclusion principle successfully denies a married lady her entitlement to substantial self-assurance and meddles in her most individual decision-making.
You Might be Intrested in: Rights of Rape Victims in India
The Court examined if a husband forcing his wife to indulge in oral sex would end up in rape punishable under section 376 of the IPC.
As per the court's views, marital rape has still not been criminalized in our country as the Parliament fears it can impair the institution of marriage. An evil wife can use it as a powerful weapon to torment her husband by filing false complaints against him or playing victim cards. But there is protection in the criminal justice system to spot and examine marital complaints. Any person who institutes false and spiteful charges can be made answerable under law. Marital rape can't be ignored just because of this fear. Indian laws must give women the right to life and liberty, not their body, within their marriage.
Violence by a husband against his wife would be counted as an offense under the IPC. If the husband forces his wife to have sexual relations without her consent, he would be liable for assault but not for the offense of rape only because there is a valid marriage.
Suggestions for Reform
- Parliament should acknowledge marital Rape as an offense under the IPC.
- The punishment for marital rape must be the same as the one listed for rape under Section 376 of the IPC.
- The fact that the parties who are married should not make the sentence lighter.
- The wife must have an option of divorce if the charge of marital rape is proved against her husband.
- Subsequent charges in the matrimonial laws should be made.
Marriage is not just an event; it is understanding, love, and consent that come together of two persons. And under these circumstances, protecting the parties' interest in a marriage is imperative. Marital rape is an evil crime that is equivalent to rape. It has severe and long-lasting effects on women.
The physical effects of marital rape may injuries to private organs such as lacerations, soreness, bruising, torn muscles, fatigue, and vomiting. Women and their partners are likely to suffer severe psychological consequences. They live under the constant fear of getting hurt now and then.
What is considered Marital rape?
Marital rape is referred to as sexual intercourse with one's spouse without the spouse's consent. It is considered a form of sexual abuse.
What are the consequences of marital rape?
Women also go through some problems due to marital Rape, such as infertility, miscarriages, infections, and the chances of diseases like HIV. The psychological effects that a woman goes through when her husband repeatedly rapes her cannot be expressed in words.
What is section 375 IPC?
Section 375 of the IPC expresses rape as "sexual intercourse without a woman's will or consent, by misrepresentation, coercion or fraud when she is intoxicated or duped or is of unsound mental health and if she is below the age of 18 years."