"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."
Justice Arjit Pasayat
Rape is the most gruesome and inhumane crimes to happen to an individual. Sexual offences such as rape violate the integrity, innocence and honour of a woman. The destruction of a female’s physical and mental equilibrium by an individual of such a cruel and sadistic mentality, and their tendency to commit rape put these women through a severe emotional crisis and transforming them into a walking corpse. Sexual offences, particularly rape, is one of the most common crimes in India.
The word rape comes from the Latin term “rapio” which means “to seize”. The term rape in its most basic sense refers to “the ravishing and violation of a woman”. Essentially, rape is defined as the sexual experience of any woman above the age of a certain number of years, despite her will, or of a girl child under the age of that couple of years, whether with or without her assent.
Marriage, also known as union or wedlock, is a socially and legally recognised relationship between spouses that creates rights and duties for them, their offspring, and in-laws. According to different Hindu religious ceremonies, no rite can be completed by a man alone, the participation of a female is necessary. However, in recent years, it has been seen that women's positions are degrading. Hidden under the multiple layers of the institution of marriage is the unheard truth of marital rape, domestic violence, dowry, etc.
The term "marital rape" refers to rape perpetrated by the victim's husband. Marital rape is a prevalent issue for women that has persisted through generations all throughout the world. Despite this, married rape has received little attention in the rape and domestic violence studies. The concept of marital rape has been legally, culturally, and professionally discredited for its victims. As a consequence, the spread of invalidation has significant therapeutic implications for victims of this crime.
Marital Rape and Legal Provisions in India
Being married does not give the man the right to compel sex with his wife. The right to have sexual relations must be mutual and not imposed on the wife. The wife should be free to decline sex and should not be forced to do so by her spouse. Marital rape is not enshrined in law as a crime in India, thus there is no penalty for it. In India, marital rape legislation is either non-existent or obscure, relying on Court interpretation.
The main components of rape legislation, as described in Section 375 of the Indian Penal Code, are "sexual intercourse with a woman and the absence of consent." A penetration would satisfy to constitute the sexual intercourse required for the commission of the crime of rape under this provision of the IPC. But Section 375 excluded Marital Rape, Same-sex rape and considers any sexual activity conducted by a female under the age of sixteen to be rape, even if she consents.
Section 375 of the Indian Penal Code (IPC), the rape law, reflects extremely outdated views, mentioning as an exception clause- "Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape." Section 376B states that if a man has sexual relations with his separated spouse without her agreement, he is guilty of rape and can be charged appropriately. This is one situation where the law protects a judicially separated wife and considers it as spousal rape if a man engages in sexual intercourse without the wife's assent.
Section 376B states that if a man has sexual relations with his separated spouse without her agreement, he is guilty of rape and can be charged appropriately. This is one situation where the law protects a judicially separated wife and considers it as spousal rape if a man engages in sexual intercourse without the wife's assent.
To conclude, only the following two types of married women are protected by rape legislation under the IPC:
Those under the age of 15 years.
Those who have been officially divorced from their husbands.
Every other married woman must rely on Section 498A, which criminalises marital rape as cruelty committed by her spouse.
Forms of Marital Rape
Marital rape is classified into two types: non-physical sexual coercion and threatening or coerced sex. Non-physical sexual coercion occurs when attackers of marital rape employ social or normative pressure, which appeals to belief in a wife's obligations and a wife's duties to fulfil her husband.
The following types of marital rape as the general classification of threatened or coerced marital rape have been given by different legal scholars :
Battering Rape In this case, both physical and sexual violence occur together. During the sexual assault, the victim is beaten, and the male uses force to have sexual relations with his wife. The majority of incidents of marital rape fall under this group.
Force-only Rape This occurs when the lady refuses to have sexual relations with her spouse and the husband uses force to achieve this. This case does not include any type of physical assault or battering.
This type of rape is performed on a lady for sadistic enjoyment by her spouse.
Physical and Psychological effects of Marital Rape
Despite the historical belief that rape by one's partner is a minor act that causes minimal pain, research shows that marital rape frequently has profound and long-lasting repercussions for women. Injuries to private organs, gashes, pain, bruises, torn muscles, exhaustion, and vomiting are all possible physical consequences of marital rape. Women who have been assaulted and raped by their husbands may suffer from fractured bones, black eyes, bloody noses, and knife wounds as a result of the sexual violence. Miscarriages, stillbirths, bladder infections, infertility, and the possibility for contraction are all gynaecological effects of marital rape.
Women who have been raped by their spouses are more likely to suffer from serious psychological effects. Anxiety, shock, extreme dread, despair, suicidal thoughts, and post-traumatic stress disorder are some of the short-term repercussions of marital rape. Long-term consequences frequently include disordered eating, sleep issues, depression, difficulties forming trustworthy relationships, and increasing negative thoughts about oneself. The psychological impacts are likely to persist for a long time. For years after the attack, some survivors of marital rape suffer flashbacks, sexual dysfunction, and mental distress.
The Legal Status of Marital Rape in different Nations
Marital rape is a common problem for women that has persisted for millennia all throughout the world. Despite this, marital rape has been widely ignored in the rape and domestic violence literature; this problem has received rarely any attention from social scientists, legal professionals, the judicial system, and society as a whole; however, after analysing the need for legal reforms regarding the penalization of various crimes against women, particularly marital rape, etc.
In the United States, studies estimate that 10% to 14% of married women have been raped in their marriage. When researchers looked at the incidence of different forms of rape, they discovered that marital rape accounted for around 25% of all rapes. Rape has always been defined as any non-consensual sexual intercourse between non-spouses, and it has always been criminal. Until 1975, however, every state had a "marital exception" that enabled a husband to rape his wife without fear of legal repercussions. By 1993, every state and the District of Columbia had approved laws prohibiting marital rape, primarily in reaction to the women's rights and equality movement. Since 1993, all 50 states and the District of Columbia have passed anti-mafia legislation.
Previously, in England, a man could not have been deemed to be guilty as a principle of rape of his wife, because the wife is generally unable to withdraw permission to sexual intercourse, which is a component of the marital contract. However, the marital rape exception was completely repealed in 1991. In R. v. R., the House of Lords ruled that the rule that a husband could not be convicted of raping his wife if he forced her to have sexual intercourse against her consent was an antiquated and offensive common-law fiction that no longer represented the position of a wife in modern society and that it should no longer be applied. Section 147 of the Criminal Justice and Public Order Act of 1994 was amended to make the corresponding legislative change. This judgement was also upheld by the European Court of Human Rights in the case of SW v. UK.
Many nations, including India, Bangladesh, Pakistan, Yemen, Kuwait, Iran, and Egypt, have yet to recognise marital rape as an offence and so victims of such crimes have no legal recourse. Even in nations where it is a crime, the burden of evidence is still on the woman. It is difficult to establish that a married woman has not agreed to sexual intercourse, complicating such requirements.
Judicial Developments and their Impacts
The horrific gang rape in Delhi on December 16, 2012, prompted the formation of the Justice Verma Committee, which proposed changes to criminal legislation. It has outlined a detailed path for women's constitutional equality and has even sought "an exemption to the existing laws' concept of marital rape." They stated that the accused's relationship with the complainant is irrelevant to the investigation into whether the complainant consented to the sexual activity and that the fact that the accused and the victim are married or in another intimate relationship may not be considered a mitigating factor justifying lower rape sentences.
Marital rape of a juvenile was punished in the landmark case of Independent Thought v. Union of India, however, it was also decided that in India, we still do not recognise criminalization of marital rape or marital rape as an offence. It was decided that a wife can file a complaint against her husband under Section 377 for unnatural sex, but only for sodomy, buggery, and bestiality. Recognition combined with punishment may prevent spouses from engaging in such behaviour.
The Kerala High Court observed in Sree Kumar vs. Pearly Karun that the offence under Section 376A, IPC will not be drawn in as the spouse is not living separately from her husband under a declaration of partition or under any custom or use, despite the fact that she is liable to sex by her life partner without her consent and without her desire. In this case, the spouse was subjected to sex against her will by her husband when she went to live with him for two days as a consequence of the two parties' agreement to complete their divorce proceedings. As a result, the spouse was found not guilty of raping his wife, despite the fact that he had done so.
In the State of Maharashtra vs. Madhukar Narayan Mandikar, the apex court addressed one aspect of bodily security. What is terrible here is that the court has favourably removed the spouse but has not provided her with protection over her own body, yet women who have been victim to rape by strangers have that perfectly fine criminalised but not marital rape. In this case, it was decided that a prostitute has the right to refuse sexual intercourse if she is reluctant.
The 2014 Delhi High Court case of State V. Vikash, in which the subject of marital rape was addressed in length, but the court finally determined that it is not the right time in India to criminalise marital rape since 498-A is an adequate foundation to deal with its related concerns. A new law is not necessary, nor is the repeal of the exception provision.
It is rightly said that there is a need for elevating the concept of marital rape from its de facto position to the de jure level. Different reports, researches and opinions of multiple legal practitioners, the problem of marital rape has always been ignored and neglected. Even if many agree that marital rape should be criminalised, they disagree with the sentencing approach of treating marital rape convicts the same as rape assaulters. Nevertheless, in my opinion, treating the same crime although done by someone known to a different degree if done by an unknown person can be interpreted as a violation of equality. When it comes to criminal law, the current issue is whether or not removing the married exception provision is sufficient.
To assess the severity of punishment, we must first recognise that the spouse has no right or authority to act in a terrible or violent manner. As a result, despite the majority's belief that marital rape should be treated differently, marital rape should be punished in the same way as rape. It is more difficult to prove such situations, but it is not impossible, and in such circumstances, when the accused's guilt is proven, it amounts to more than domestic violence and cruelty, and a smaller sentence would be an injustice. Determining a reduced punishment for misuse is likewise unjustified.
The issue over marital rape is critical in achieving substantive equality for married women, who are otherwise restricted to the boundaries of their house in public and legal discourse. It is critical to recognise that there is a significant gap in criminal law that is now undermining constitutional protections that guarantee women equality and autonomy.
In the current situation, marital rape can only be viewed as rape, which is legally allowed and eliminates the need for the woman's permission. Without a doubt, marital rape violates a woman's right to dignity and well-being, and so a legislation should be enacted in order for a modern country to prosper.
Independent Thought v. Union of India, (2017) 10 SCC 800
Sree Kumar vs. Pearly Karun, 1999 (2) ALT Cri 77
State of Maharashtra vs. Madhukar Narayan Mandikar, AIR 1991 SC 207
State V. Vikash, available at: https://www.legitquest.com/case/vikas-v-state-nct-of-delhi/19688E
Author: Andre Sachdeva
Instititute: VSLLS, VIPS
Year of Study:1st Year (2nd Semester)