Marital Rape – A Legal Offence

Author – Malaika Kadam

Abstract:

Ten cases of cruelty inflicted by the husband and relatives are reported every hour across the country. Cruelty by the husband also includes forced sexual intercourse, i.e., marital rape. Unfortunately, the National Crimes Record Bureau (NCRB) has no statistics of marital rape taking place in our country, because marital rape isn’t yet considered a crime in our country. Outraging modesty and forced sexual intercourse with a woman is perfectly legal, as long as the woman is the wife of the man doing so. This view not only defiles her body but also infringes her fundamental rights, which the Constitution of India claims to guarantee to every citizen irrespective of their gender. Married women have been exempted from such rights which are supposed to be available to every human being. Every victim is awaiting the criminalization of marital rape so that they can protect themselves from the atrocities of those people who vowed to protect them from the world.

Keywords:

Marital rape, legal crime, consent, constitutional infringement, section 375, criminalization

Introduction

Marriage is a social and legal contract, usually between a man and a woman, which unites their lives economically, legally and emotionally, and establishes certain rights and obligations between them, their families, and between them and their offspring. Marriage is considered a sacramental union among Hindus and Christians. Marriage provides the basic structure to multiply social and personal functions, primary functions being the procreation of children and sexual relationship.

Rape is one of the most heinous criminal offences in the world. The offender, not even in his wildest dreams can imagine the aftermath of such brutality on the victim’s life. The trauma of the inhumane act has physical, psychological, and sociological effects on the survivors. Even though the repercussions differ amongst victims, but the majority of them suffer from long-term mental instability, fear, depression and eventually start blaming themselves. Rape can be defined as a crime often involving sexual intercourse, against the will of the victim through force, or the threat of force or with an individual who is incapable of giving legal consent. Thus, what makes rape an offence is not the sexual activity but the lack of consent of the victim. How bizarre does this sound that the concept of consent holds immense power and renders sexual intercourse a crime in its absence, but becomes entirely inconsequential once you are married? In India, marital rape is an utterly legal crime. India is one of the only 36 countries in the world, which hasn’t yet criminalized marital rape.

According to the report of the National Crimes Record Bureau (NCRB), more than 30% of total reported crimes against women were of domestic violence in 2019, and many of these were the cases of marital rape in the guise of domestic violence. The cases of domestic violence increased abruptly, as it never did in the past 10 years, during the Covid-19 nationwide lockdown, and this ultimately points out to the obvious increase in cases of marital rape in Indian households. No victim would ever appreciate, rather would dread, the thought of being left alone within the four walls of her house with her offender. The terror and apprehension that the wives would have gone through being around their malefactor are inconceivable.

Concept of Consent

A contract, to be legally binding, requires free consent of both the parties involved, and so is the case for having a sexual relationship. The consent must be either explicit or implied in nature. Now the question that arises is, while the wedding ceremonies were materializing, who interpreted that the bride taking seven rounds, with her to-be husband, around the fire, means that she is giving him the perpetual consent for a sexual relationship? Or how was this deduced that saying “Qubool Hai” thrice will be comprehended as, “my husband can have sex with me whenever he desires, without asking for my consent”?

Unfortunately, the silence of the bride is considered as an everlasting sexual consent and has since then become an implied principle of marriage. The Indian culture acknowledges and expects the bride to move in with her husband and his family post marriage. The bride is expected to leave her family, her home, and her name and gel in with her new family. Along with all this, she is further expected to waive her right to give or not to give consent to the sexual actions of her husband, as her consent has already been assumed to be affirmative by every person who witnessed the wedding.

Infringement of Constitutional Rights

Marital rape not just outrages the modesty of the victim and defiles her physically and mentally, but also infringes her fundamental and human rights. According to the Constitution of India, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[1] Article 21 provides that no person shall be deprived of his life and personal liberty, along with the right to privacy[2] and the right to live with human dignity[3]. The absence of liberty of a woman to give consent to something as personal as sexual intercourse is baffling. To make things worse, the victim of the crime of marital rape isn’t even considered a victim, as the person who forced the sexual intercourse was her legally wedded husband.

In Bodhisattwa Gautam v. Subhra Chakraborty[4],  the court held that rape is a crime against the basic human right and violation of the right to life enshrined in Article 21 of the Constitution and provided certain guidelines for awarding compensation to the rape victim.

Normally, cases of infringement of fundamental rights can be filed in Supreme Court, under Article 32, and in High Court, under Article 226 of the Constitution as these provisions guarantee the enforcement of the fundamental rights. Unfortunately, for a marital rape victim, irrespective of the court she approaches, such guarantee and the hope of justice are nowhere to be found.

Section 375 of the Indian Penal Code

Marital rapes are perhaps the hardest to prove as there are no witnesses of the legal rape and when a victim of marital rape summons all her courage to challenge and prove the sexual violence from her husband, she is denied state protection as section 375 of the Indian Penal Code, 1860 has a general marital rape exemption.

Exception 2 of this section explicitly states that sexual intercourse by a man with his wife, who is not under the age of fifteen years, is not rape.

This means that the wife is either assumed to have given perpetual consent or is deprived of giving her consent in the first place as sexual intercourse within marriage is considered the right of the husband. Every kind of sexual assault is a punishable offence, as it involves not only unwilling sexual intercourse but also attacks the woman’s dignity, social life, and self-esteem. However, all this becomes harmless and acceptable after marriage because the woman is merely reduced to an object for sexual gratification.

The Protection of Women from Domestic Violence Act, 2005

In 2005, the Protection of Women from Domestic Violence Act was passed which, though did not consider marital rape as a crime, did consider it as a form of domestic violence.Under this Act, if a woman has undergone marital rape, she has the option to go to the court and obtain judicial separation from her husband. However, the same doesn’t entirely protect the woman from the crime she underwent.

Words of Victims

Most of the cases of marital rape never surface as the pressure of the family, society and no protection from the State, drown them to the deepest depths of the ocean, i.e., the four walls of the home. Everyone expects the wife to adjust and tries to convince her as to how ordinary and normal it is for her to satisfy her husband’s sexual needs.

“I still remember the day I got married, at the age of 18. While taking the vows, I glanced at the tall frame of my husband and felt a tug at my heartstrings. I felt tears of joy washing me over, knowing I had a protector now. Alas, even before I could wipe them dry, I was in for a rude shock. On the “suhaag raat” instead of care, kind words, and companionship, I was met with verbal abuse, force, and assault.”

“It seemed as if besides doing the household work and being at his disposal at night, my husband had no other use of me. One night, when I gently refused to sleep with him as I had a headache, he picked up a candle, forcibly inserted it into my vagina, and said, “Not to worry, you scumbag, I have a remedy for everything.” I sobbed endlessly, but he refused to spare me the horror. The next morning, I got up feeling like a zombie and called my mother to tell her what had happened. “Anu beta, try to adjust. There is no way out.” Her response left me numb. Night after night, the torture grew.

All hell broke loose when one night, I was running a high fever and pushed him away. He picked up his golf stick and beat me till I passed out. Enough was enough. I ran to the police station the next day knowing well that domestic violence was a punishable crime. Would you believe what they told me after hearing my story? One of them smirked and said, “Be grateful lady that your husband is coming to you every night and not going to a prostitute. Go home and keep him happy.” This is the one day I regretted being a woman and an Indian.”[5] – Anita, a marital rape victim.

The above instance sheds light on the tale of every victim of marital rape. While going through such stories, we want to put in every ounce of our power to protect them, but unfortunately, the Indian legislature and judiciary seem entirely oblivious to such affairs.

The Indian Judiciary’s perception

The Indian judiciary has been ignorant towards the animosity a victim is facing and is of the view that forced sex by a husband with his wife is justified. The Delhi High Court in February 2015 and the Kerala High Court in October 2015 refused PILs which challenged the exceptional clause of section 375 of IPC and called it unconstitutional. Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape.

In Sree Kumar vs. Pearly Karun[6], the Kerala High Court ruled that the offence under Section 376A, IPC won’t be applicable as in this situation, the spouse was subjected to sex without her will by her husband when she went to live with her husband for 2 days as a result of the settlement of separation procedures which was going on between the two parties. Subsequently, the spouse was held not liable for raping his wife even though he had done so.

In Independent Thought v Union of India[7], it was held that sexual intercourse between a man and his wife who is between 15 and 18 years of age is rape. This landmark judgment of the Supreme Court did not comment on the rape committed by a husband on his wife above 18 years of age.

In State of Maharashtra v Madhukar Narayan Mardikar[8], SC referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse.

It is sad to know that all stranger rapes have been criminalized and all females, other than wives, have been given the right to privacy over their bodies.

Conclusion:

Sexual intercourse without the consent of the woman involved is always rape, irrespective of the fact that the man and woman involved are married to each other, and that once the woman did do it with her consent. We stress a lot on women empowerment and multiple statutes have also been enacted to ensure that women actually get empowered, but unfortunately, we forget that a women spends most of her time at home, with her husband and if she feels unsafe there, then all the endeavours made by the legislature and the judiciary to empower her go in vain. The tag of ‘Pati Parmeshwar’ that has been given to husbands, because of the animosity with which some husbands treat their wives, has become nothing more than a misnomer. The better halves are not even halfway interested in knowing what their wives desire. In every case of sexual assault, whether the consent was given or not by the aggrieved is taken into account, but marriage between the culprit and victim renders the concept of consent inconsequential. We need to understand that NO always means NO, irrespective of the woman being married to the man involved, and the type of consent rendered. To gear towards empowerment of women, genuinely and absolutely, the criminalization of marital rape is a sine qua non. Until then, whenever a man desires to get back to the comforts of his home, there will be someone, at his home, dreading his arrival, every night.

References:

·       Aishwarya Mishra, Law On Marital Rape – A Much Needed Reform In Our Legal System, Mondaq.com (Apr 13 2018), https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-much-needed-reform-in-our-legal-system

·       Vignesh Radhakrishnan, Sumant Sen, Naresh Singaravelu, Data| Domestic Violence complaints at a 10-year high during COVID-19 lockdown, THE HINDU (Jun 22 2020), https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece

·       Vaishali Bansal, All you need to know about marital rape, IPLEADERS, https://blog.ipleaders.in/need-know-marital-rape/amp/

·       Anirudh Pratap Singh, The impunity of marital rape, The Indian Express (Dec 20 2020), https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/

·       Barstow, A. L.. “Rape.” Encyclopedia Britannica, November 19, 2020. https://www.britannica.com/topic/rape-crime.

·       Effects and aftermath of rape, Wikipedia, https://en.m.wikipedia.org/wiki/Effects_and_aftermath_of_rape

·       Domestic Violence in India, Wikipedia, https://en.m.wikipedia.org/wiki/Domestic_violence_in_India

·       Image source – Abhinav Garg, Accused of unnatural sex, man claims cover under marital rape law, timesofindia.com (Jul 21 2016) https://m.timesofindia.com/city/delhi/accused-of-unnatural-sex-man-claims-cover-under-marital-rape-law/amp_articleshow/53311654.cms


[1] INDIA CONST. art 14.

[2] As decided by the case, Puttuswamy v Union of India, WRIT PETITION (CIVIL) NO 494 OF 2012

[3] As decided by the case, Maneka Gandhi v Union of India, 1978 AIR 597

[4] AIR 1996 SC 922

[5] Darshana Doshi, Marital Rape. A reality in this marriage, Bonobology.com (Apr 4 2020), https://www.bonobology.com/marital-rape-a-reality-in-this-marriage/

[6] 1999 (2) ALT Cri 77

[7] (2013) 382 SCC (2017) India

[8] AIR 1991 SC 207

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