Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused. Since the late 20thcentury, most of the developed world has criminalized marital rape but India has still not done it yet. Despite of various rape cases been reported in India there has been complete silence over these issue. There have been plethora’s of cases wherein wives are brutally harassed, one of the cases was filed many years after the marriage, where the victim (Rashmi) believed that frequent vaginal bleeding after intercourse was a normal phenomenon. Married at the age of 17, her husband would assault her six to seven times a day. At the age of 19, when she conceived her first daughter, she was forced to have intercourse till the eighth month of her pregnancy. However, things became worst when barely 15 days after she had a C-section surgery, her husband assaulted her so badly that it led to the rupture of her stitches. She wanted to raise her voice against her husband but was mocked by her mother. “This is normal. Husbands don’t rape you. They are allowed to do all that,” she was told. Today Rashmi is 27 years old with 2 daughters, fighting a case under domestic violence in Delhi’s skate court. Further, it can be witnessed in this case that even the mother of the victim is not supporting her daughter for her claim. Hence, her husband is not to be blamed alone, it is the elder of the family who is equally responsible for her condition.
There are situations where the women were subject to rape as the recent Nirbhaya rape case, wherein the perpetrators though got punished for the heinous crime committed by them. But this raised a very concerning issue as to the women who were raped by their own husband i.e. having intercourse with them forcefully without their consent, what remedies can they avail or whether those victims have any recourse against their own husband in the court of law? Though, the Criminal Law (Amendment) Act 2013 that was enacted after the December 16, 2012 gang rape case enlarged the definition of rape and now, any kind of penetration of a male organ or any object into any body part of a woman amounts to rape. But an exception to the Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent. Section 375 of IPC, deals with rape, makes an exception for such instances within marriages. It holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”.
Statistics: In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.
Suggestions: The Justice J.S. Verma committee, recommended sweeping changes in the law relating to offenses against women, called for marital rape to be made an offense. This was not implemented. The present Indian law exempts non-consensual sex between a husband and wife, not being less than 15 years of age, from being charged with rape. However, by another provision it makes rape of a wife who is living separately a criminal offense. The age limit of 15 years above which marital rape is not an offense is inherently problematic, as normally sex with a girl up to the age of 18 is an offence regardless of consent. The exemption given to marital rape, as Justice Verma noted, “Stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept.
Conclusion: Despite of the suggestions made by the Verma committee, there were no measures taken. Recently in February 2015, the Supreme Court refused to entertain a woman’s plea to declare marital rape a criminal offense, saying it wasn’t possible to order a change in the law for one person. The woman had challenged the validity of an exception to Section 375 of the IPC that says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without consent. The provision, the woman said, violated her fundamental right to life and liberty. Thereafter, the top court also dismissed a public interest petition, saying it was for the legislature to take a call on it.
My Opinion: According to me marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. Educating boys and men to view women as valuable partners in life, in the development of society can also play an important role in this awakening. And also from these steps marital rape should also be criminalized as it violates her right to live with dignity which is a part of her right to life and liberty guaranteed under Article 21 of the Constitution. Marital rape goes against her right to sexual privacy and right to bodily self-determination.
Shubhangi Gupta
Nirma University.
A COMPREHENSIVE WEBSITE FOR ALL LEGAL DEVELOPMENTS