Marital rape does not necessarily take place in every home, but every household holds the potential for Marital rape, especially where the husband is alcoholic, illiterate, senseless, et cetera. If we look at psychological perspectives we can see that generally such person had a bad childhood, remain unappreciated and unloved which later give rise to narcissistic attitude towards life. This issue of marital rape is a subtle and sensitive one. But, the issue of marital rape is not without contradiction. For the conservatives, there is no rape in marriage as they think that after marriage there’s nothing like ‘rape’, some consider otherwise which is generally accompanied by modern notions of relationships based in consent and aggrement. This makes this issue a debatable one which points that still lot more can be done with the emergence of various views and ideas through these debates and discussion to better up things. In a relationship of husband and wife, both man and woman have a right to say ‘No’ to physical intimacy. One should remember that love is consent but forcing or pressuring a partner into sexual activity is abuse. Abusing, harassing and threatening one’s partner to get sexual pleasure is immoral and wrong. One may argue that, taking action against marital rape will destroy the institution of marriage, which is not true in complete sense. The truth is that rape destroys marriages. The abusiveness, threat and harassment given to anyone irrespective of sex is extremely wrong.
Law regarding rape
Section 375 of the IPC defines the term Rape. A man is said to commit “rape” if he –
- Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
- Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions :-
- Against her will.
- Without her consent.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.
But preceding essentials for rape are having some exceptions also. Such exceptions are-
- If a woman who does not physically resist for penetration, by this reason it shall not be regarded as the Sexual Activity.
- A medical procedure or intervention shall not shape an offence of rape.
- Sexual intercourse or sexual act by a man with his wife, by the wife not being under 15year of age is not rape.
The third exception is known as Marital Rape. And this exception of Section 375, articulates that non-consensual sexual intercourse by the husband with his wife, if the wife under the age of 15 years, then only intercourse praise as rape. Meaning there by if the wife is over the age of 15 year then it would not be rape.
It’s 2020 and India remains one of 36 countries where it is not a crime for a man to rape a woman as long as they are married. In 2016, then Union minister for women and child development Maneka Gandhi, in a bizarre twist of events, has also said that the concept of marital rape, as understood internationally, could not be suitably applied in the Indian context due to various factors like level of education or illiteracy, poverty, myriad social customs and values, religious beliefs, mind-set of the society to treat the marriage as a sacrament. Globally many countries have recognised that rape is rape, and that rape is a crime. So what is holding India back? A careful analysis points to several factors: an outdated IPC; a rigidly patriarchal society that suppresses women’s voices and a culture where marriage and family hold utmost significance as the building blocks of society.
There are several writ petitions before the Supreme Court and various High Courts all over the country filed by individuals and civil society organizations such as NGO RTI Foundation and the All India Democratic Women’s Association challenging the marital rape exemption to Section 375 : the government has continued to shield men who rape their wives.
One such statement of former Chief Justice of India Deepak Mishra was reported by The Times of India, “I do not think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.” According to the authorities, the reason behind not criminalising marital rape is because majority of marriages will fall apart apparently because women will stand up against their rapist husbands.
A country like India, where women are worshipped like a goddess honestly have no self-esteem and dignity in this modern era too. Marital Rape is a serious form of violence against women and worthy of public and state attention. The study shows that women who are raped by their husbands are more likely to experience multiple assaults and serve long-term physical and emotional consequences. It is said that marital rape is more traumatic than rape by a stranger because a wife lives with her mugger and she may live in constant terror of another assault on another day.
In Independent Thought v. Union of India, the Supreme Court agrees that criminalising marital rape does not threaten marriages. They further said that if divorce and judicial separation have not destroyed the institution of marriage, criminalising marital rape certainly cannot either. The High Court of Gujarat recently ruled that “the non-consensual act of marital rape is what has damaged the institution of marriage”. Although most Indian women feel protected under the Protection of Women from Domestic Violence Act (2005) but the loophole in this act is that it does not openly speak about marital rape.
In the cases of cruelty, divorce and dowry demands the State has already passed judgements then why the most brutal and heinous crime outside the extent of the State and laws has been left away. The State which does not involve itself at the time of marriage but acts as a peacemaker during divorce must protect a woman’s right to her body. Why can’t one understand that when another person says no it means ‘No’ regardless of the nature of one’s pre-existing relationship to another person.
In Sreekumar and Anr. v. Pearly Karun, the Kerala High Court watched that the offense under Section 376A, IPC won’t be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. For this situation, the spouse was subjected to sex without her will by her husband when she went to live respectively with her husband for 2 days as result of settlement of separation procedures which was going ahead between the two parties . Subsequently the spouse was held not liable of raping his wife however he had done as such.
The judiciary appears to have totally consigned to its benefit rape inside marriage is impractical assault of the lady.
Right to Privacy
On the 24th of August 2017, the Indian Supreme Court in the case of Justice K.S. Puttaswamyand Anr. v. Union of India and Ors declared the right to privacy to be a fundamental right. This decision has far reaching consequences on a slew of laws including those that criminalise homosexuality and legalize marital rape. It is submitted that the doctrine of marital exemption to rape violates a married woman’s right to privacy by forcing her to enter into a sexual relationship against her wishes. Thus, keeping in view the obligations imposed on India by CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) and the gradual change in the interpretation of civil liberties as enshrined in the Constitution of India, it is high time that India criminalised marital rape. Whether this happens through a judicial pronouncement or an act of parliament is left for time to tell.
Rape is rape so is the case with marital rape. For this, understanding the background is important; this alone cannot be understood or judged in isolation. This deals with the thing which is related with marriage which is a cordial relationship between a man and a woman and it is concerned with them only that they should solve it up cordially respecting their bond. If things go worse the provision of divorce is also there but if this marital rape is criminalised it may lead to a destructive culture which is undesirable for any society especially the Indian one. It may lead to a new version of #metoo movement to boost up, in several courts dragging their partners in this marital rape and it has several complications, loopholes etc. are also there too which can be manipulated to that extent that an individual might suffer. So in the heat of the movement this shouldn’t be criminalised with immediate effect. Although the judicial system can come up in coordination with NGOs, religious scholars and system like Lok Adalats to take up the issue of serious nature so that nobody suffers with injustice and oppression which could have serious negative effects on health too. So ultimately justice is served.
Sabbat Fatima is a law student at Hamdard Institute of Legal Studies and Research, Jamia Hamdard and Qasim Abbas Kazmi is pursuing law at Aligarh Muslim University.