MARITAL RAPE IN INDIA BY - ROZY BAIDYA & PRITHWISH GANGULI

MARITAL RAPE IN INDIA
AUTHORED BY - ROZY BAIDYA
7TH Semester, Heritage Law College, Kolkata
 
CO-AUTHOR - PRITHWISH GANGULI, ADVOCATE
LLM (CU), MA in Criminology & Forensic Sc (NALSAR), MA Sociology (SRU), Dip in Cyber Law (ASCL)
Guest Faculty, Heritage Law College, Kolkata
 
 
Abstract:
Marital rape remains a deeply contentious issue in India, where the legal system continues to uphold the marital exemption under Section 375 of the Indian Penal Code, effectively excluding non-consensual intercourse within marriage from the definition of rape. This legal stance reflects entrenched societal norms that view marriage as granting irrevocable sexual consent, a perspective that disregards the autonomy and dignity of women. The ongoing debate over the criminalization of marital rape highlights the conflict between traditional values and the principles of gender equality and human rights. This article explores the legal, social, and ethical dimensions of marital rape in India, analysing the arguments for and against its criminalization. It also examines the implications of this exemption on women’s rights, the role of the judiciary, and the need for legal reform in aligning India’s laws with international human rights standards. The discussion aims to contribute to the growing discourse on recognizing marital rape as a serious violation of personal liberty and bodily integrity, advocating for a legal framework that protects all individuals, regardless of their marital status.
 
Keywords: Consent, Spousal Rights, Marital Rape, Gender Equality, Criminalization
 
INTRODUCTION
A society consists of both men and women. Men and women are born equal. They play vital roles in the creation and development of their families in particular and the society in general. Women is not only a bread distributor, but she is also a bread winner. She works shoulder to shoulder with men. Women along with men participates in all activities equally and hence, she is considered as “SAHADHARAMA CHARINI”.
Beginning of 19th Century, the position of women are increased day by day. They learned, educated in schools, colleges and Universities. But, they have been victims of humiliations, exploitations for the past 100 years. They were beaten, kidnapped, raped, burnt and murdered.
 
In our planet Earth, everyone is attracted by opposite sex. But, to legalize sex between two human beings in Society, the concept of “MARRIAGE” was created. The objects of a marriage are to legitimize the sexual relation between two opposite sexes of healthy bodies, and to legitimize the paternity of child, born during wedlock. Especially in India, all other kinds of sexual relations, between the persons are illegal in various forms namely, rape, act against the nature, illegal intercourse, adultery etc…..
 
Therefore, violence, cruelty against women can be broadly categorized as------
 
VIOLENCE AGAINST WOMEN
 
 
 
 

i.                    CRIMINAL VIOLENCE     ii. DOMESTIC VIOLENCE      iii. SOCIAL VIOLENCE      
 
In the Penal laws of all Countries, sexual offence against women Occupy a significant place and out of all the crimes, the one which shocks the conscience and shakes its roots, and is the most heinous, is “RAPE”. The only crime, perhaps, where, instead of being sympathized with, a victim is socially ostracized and morally degraded with a Life Long stigma on her dignity and character.
 
Rape is the most heinous offence against women. It is an insult to the civility. It is symptomatic of sexually starved society that has injuriously threatened and still threatening the women’s right to life, liberty and personality.
 
Recently, THE UNITED NATIONS SECRETARY GENERAL, Ban Ki- Moon; urged the Indian Government to take action to protect women, and The United Nations High Commissioner for Human Rights Navi Pillay called “RAPE IN INDIA A NATIONAL PROBLEM.”
According to World Population Review, Rape Statistics,2021; states that-------
“The United States has a rape rate of 27.3. as in many other countries, rape is grossly underreported in the United States due to victim shaming, fear of reprisal, fear of family knowing, cases not being taken seriously by law enforcement, and possible lack of prosecution for the perpetrator. only 9% of rapists in the United States get prosecuted, and only 3% of rapists will spend a day in prison. 97% of rapists in the United States will walk free.”
The word “RAPE” is derived from the Latin word “RAPIO” which means “TO SEIZE”. Thus, “RAPE” means “A FORCIBLE SEIZURE”.
GARY SCANLAN AND CHRISTOPHER RYAN in his Journal “INTRODUCTION TO CRIMINAL LAW, 2017”, defined it as--------
“Rape means in so far as the law is concerned the slightest degree of penetration by the male sexual organ of the female sexual organ will be sufficient to constitute intercourse without anything more occurring.”
Black’s Law Dictionary, defined it as-------------
“Rape is the unlawful carnal knowledge of a woman by a man forcibly and against her will.”
Section-1 Of The United Kingdom Sexual Offences Act,2003 ; defined it as-----------
“Rape is the penetration with a penis of a vagina, anus or the mouth of Anther person when consent has not been given.”
Section-375 Of The Indian Penal Code,1860, defined it as------------
 “A man is said to commit rape” if he---------------
1.      Penetrates his penis or any object or any part of the body to vagina, mouth, urethra, anus of any woman;
or,
2.      Manipulates any part of the body of a woman so as to cause penetration into the vagina, anus, urethra or any part of the body to such woman;
or,
3.      Applies mouth to the vagina, anus, urethra of woman under the following circumstances-------------
A.    Against her will;
B.     Without her consent;
C.    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;
D.    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;
E.     With her consent when at the time of giving such consent due to administering her with stupefying substance, she is suffering from---------------
·         unsound mind;
or,
·         intoxication;
or,
·         unconscious;
F.     With or without her consent when she is under 18 years of age;
G.     When she unable to communicate her consent.”
 
Exceptions
                  The following acts shall not constitute “RAPE” ----------
1.      A Medical Procedure or Intervention,
2.      Sexual Intercourse or Sexual Acts By A Man With His Own Wife Not Being Under 15 Years OF Age.
 
TYPES OF MARITAL RAPE
Marital Rape is one of the most misunderstood crime. It has received relatively little attention from the criminal justice system and larger society as a whole.
 
The term “marital rape” refers “to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent.”
 
Here. The term “unwanted intercourse” refers to all sorts of penetration weather anal, vaginal or oral, perpetrated against her will without her consent.
Marital rape is the following types-------------
 
Battering Rape
Battering Rape is that kind of marital rape where women experience both physical and sexual violent in the relationship.
 
Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will.
Example
The majority of marital rape victims fall under this category.
 
Force Only Rape
Force only Rape is that kind of marital rape where the husband use only the amount of force necessary to coerce their wives, battering may not be characteristic of these relationships.
The assaults are typically after the women has refused sexual intercourse.
 
Sadistic or Obsessive Rape
Sadistic/Obsessive Rape is that kind of marital rape where involve torture and or other perverse sexual acts.
 
Example
Pornography is frequently involved in this category.
                       

Challenges relating to Marital Rape in India

The main challenges of Marital Rape in India are as follows -----
 
Customs  
According to socio-cultural traditions and values, many women are conditioned to believe that they should prioritize satisfying their husband's sexual desires and allow their husbands to dominate every aspect of their lives after marriage.
 
Patriarchal Society
In many cultures, marriage is seen as a contract stuck between traditional superstitions and patriarchal beliefs, where the husband is considered free to have a relationship and chooses his wife.   Often this practice prevents women from consenting to sexual activity within marriage.
 
Family Pressure
After marriage, many families pressure couples to have children and carry on family traditions, especially in Indian households where women may be urged to have children even if they do not desire them, denying them reproductive autonomy. This pressure can lead to husbands coercing their wives into sex to conceive.
 
Lack of Legislation
Section 375 of the Indian Penal Code makes it clear that a husband engaging in sexual acts with his wife who is not under the age of 15 will not fall under the definition of rape, despite the fact that it is not expressly stated anywhere in any law that marital rape is a legal action under Indian laws.
 
Financial Problem
It is crucial to address the issue of a woman's economic dependence on her husband and in-laws. Despite a slow shift in societal mindset, married women historically had no power to protect themselves from their husbands' abuse due to their lack of financial independence. This resulted in them enduring their husbands' brutality.
 
Case Analysis
Hrishikesh Sahoo v. state of Karnataka, 2024
 
Case Number: SLP (CR) 4063 - 4064 Of 2022
[January 18, 2024]
 
In this case, The Supreme Court of India held that the exception of the crime of rape is committed by a man against his wife is unconstitutional. This exception can be found under Section 376 of the Indian Penal Code, 1860 (IPC) and is popularly known as the " Marital Rape Exception. "
 
PRESENT STATUS OF MARITAL RAPE IN INDIA
Many of the countries with high Rape statistics need to look beyond just legislation to fix the problem.
 
Another country like- South Africa has the highest rate of rape in the world of 132.4 incidents per 1,00,000 people.
 
According to a survey conducted by the South African medical Research Council,2021; approximately one in four men surveyed admitted to committing rape.
 
Although the Parliament of South Africa attempted to amend and strengthen all sexual violence laws with the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
 
According to the Report of the National Crime Records Bureau, NCRB, 2019; there has been a significant rise in criminal cases. There is a 1.65% rise in cases registered. 73% increase in crimes against women. Cyber Crimes have jumped up by 63.5% and on an average. There are 87 rape cases daily. With such an alarming rise in crimes. One needs to know about laws that related to different types of crimes.
 
Here are the 10 countries with the highest Rape Case rates---------
A.    South Africa, (132.40);
B.     Botswana, (92.90);
C.     Lesotho, (82.70);
D.    Eswatini, (77.50);
E.     Bermuda, (67.30);
F.      Sweden, (63.50);
G.    Suriname, (45.20);
H.    Costa Rica, (36.70);
I.        Nicaragua, (31.60);
J.       Grenada, (30.60).
 
LEGISLATION REGARDING MARITAL RAPE
The Government of India acted swiftly, modified Laws and had set up fast track Courts to deal with the Crime.
 
A.    IN UNIVERSAL DECLARATION OF HUMAN RIGHTS , 1948:-
The General Assembly, for protection of Human Rights, adopted a declaration on 10th December, 1948; named THE UNIVERSAL DECLARATION OF HUMAN RIGHTS. It has also been called the “BILL OF RIGHTS FOR THE WORLD COMMUNITY”.
 
The Declaration consists of a preamble and 30 Articles under which the human rights and fundamental freedom to which all men and women everywhere in the world are entitled without any discrimination are enumerated.
 
The Declaration was a historic document. Before the Second World war, there was almost no International Law of Human Rights. There are now approximately 200 International Legal Human Rights Instruments of which 65 acknowledge “The Universal Declaration of Human Rights” as a source of authority.
 
Article-3 of The Universal Declaration of Human Rights, 1948; provides that Everyone possesses the right to life, liberty and security of person.
 
Article-7 of The Universal Declaration of Human Rights, 1948; provides that--------
Everyone Are equal before law and are entitled to equal protection of law without discrimination in violation of the declaration.
 
B.     IN CONSTITUTION OF INDIA
In, India the Constitution also protects and recognise the rights of women from any crime relating to women, some of them are as follows -------
 
Article-14 Of The Constitution of India, provides that, the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
 
Article -15 of The Constitution of India, provides that--------
  1. The state shall not discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
2.      No citizen shall, on grounds only of religion, race, caste, sex place of birth or any of them, be subject to any dissemination, liability, restriction or condition with regard to------------
a.       access to shops, public restaurants, hotels and place of public entertainment;
or,
b.      the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the state funds or dedicated to the use of general public.
3.      Nothing in this Articles shall prevent the state from making special provision for women and children.
Article-21 of the constitution of India; provides that-------
No person shall be deprived of his life and personal liberty except according to procedure established by law.
Article-32 of the constitution of India, provides that--------
The supreme court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of the fundamental rights under Part-III of the constitution.
Article -226 of the constitution of India, provides that---------
Every high court shall have powers, throughout the territories in relation to which it Exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part-iii and for any other purpose.
 
C.    IN INDIAN PENAL CODE,1860
The Indian Penal Code, 1860; incorporates three different provisions to partially criminalize Marital Rape. These are as follows ---------
A.    SECTION-375 (EXCEPTIONS)
Sexual Intercourse by a man with his wife, the wife not being under 15 years of age, is not a rape.
B.     SECTION-376(1)
If a person rape his wife who is not under 12 years of age, he shall be punished with extend to 2 years imprisonment or with fine or with both.
 
C.    SECTION-376 A
Whoever, commits an offence punishable under Section- 376 (1&2) and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with for first conviction not less than 20 years rigorous imprisonment but may extend to life imprisonment and with death and for second and subsequent conviction (SECTION-376 E) Life imprisonment or death.
 
NEW DIMENSION OF INDIAN JUDICIARY REGARDING
MARITAL RAPE
Rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and Courts shoulder a great responsibility while trying an accused on charges of Rape and must deal with such cases with utmost sensitivity.
 
The Supreme Court may time to time pass the judgement, guidelines about this topic. Some important decision are as follows -------------
1.      INDEPENDENTTHOUGHT V. UNION OF INDIA, 2017
(WRIT PETITION NO.-382 OF 2013)
(CIVIL ORIGINAL JURISDICTION) 12, OCTOBER, 2017, NEW DELHI            
In this case, a bench of Justice Madan B. Lokur and Deepak Gupta of The Supreme Court of India held that---------
Sex between a man and his wife below 18 years of age will count as “RAPE” and the husband can faced up to 10 years imprisonment under the Indian Penal Code.1860; or even life imprisonment termed under The protection of Children From Sexual Offences Act,2012 (POCSO ACT,2012).
The Supreme Court also said that Section-375 (2) of The Indian Penal Code,1860; which exonerated a husband of rape charges even if had sex with his wife who is between 15 to 18 years of age, was unconstitutional and against several other criminal laws including The Protection Of Children From Sexual Offences Act, 2012 (POCSO ACT, 2012).
The Supreme Court established a uniform 18 years as age of consent, marriage.
 
2.      STATE OF UTTAR PRADESH V. NAUSHAD, AIR 2014
The Supreme Court held that if consent is given by the prosecutrix under a misconception of fame, shall be guilty of rape as defined in Section-375 Of The Indian Penal Code,1860; and is liable to be punished for the offence under Section-376 of The Indian Penal Code,1860.
 
3.      STATE OF MADHYA PRADESH V. MUNNA CHAUBEY, 2005
The Supreme Court held that rape for a woman is deathless shame and must be dealt with as gravest against human dignity. It is violation with violence of the private person of a woman, an outrage by all means.
 
4.      DEEPAK GULATI V. STATE OF HARYANA, AIR 2013
The Supreme Court held that rape is morally and physically most reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim and degrades and defiles the soul of helpless female. Being the most hated crime, rape tantamount to a serious blow to the Supreme honour of a woman and offends her esteem and dignity.
5.      SHYAM NARAYAN V. STATE OF NATIONAL CAPITAL TERRITORRY, DELHI, AIR 2013
FACTS OF THE CASE
The facts of the case inter alia states that----------                  
A girl of 8 years was brutally raped by accused. She was threatened by the accused not to tell the truth and therefore, she stated that she fell in the toilet and got injured. However, medical examination report showed that she was a victim to sexual assault and rape. The Trial Court and The High Court confined the charge of rape against the accused and sentenced him to life implement. The accused appealed to The Supreme Court for less punishment.
 
JUDGEMENT
The Supreme Court, on appeal, upheld the sentence of life imprisonment for the ghastly act of the accused and dismissed the plea of mitigating circumstances put forth for reduction of sentence to mandatory minimum 10 years.
In this case, The Supreme Court, observed that---------
Rape is a monstrous burial of girl's dignity in the darkness -------- her dignity and purity of physical frame is shattered and she may not be able to assert the honour of a woman for no fault of hers.
 
6.      MERCY KILLING/ EUTHANASIA CASE
(ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA AND OTHERS, AIR 2011): -
BENCH: MARKANDEY KATJU, GYAN SUDHA MISRA.
In this case, The Supreme Court categorised Mercy Killing or Euthanasia as---
1.      Active Euthanasia,
And,
2.      Passive Euthanasia.
 
I.                   ACTIVE EUTHANASIA
Active Enthanasia entails the use of lethal substance or forces to kill a person.
 
EXAMPLE
A Lethal Injection given to a person with terminal cancer who is in terrible agony.
 
II.                PASSIVE EUTHANASIA
Passive Euthanasia entails withholding of medical treatment for continuance of life.
 
EXAMPLE
Removing a hurt lung machine from a patient to coma.
The Court further observed the legal position of Euthanasia all over the world as--------
 
A.    IN NETHERLANDS
In Netherlands,” Eeuthanasia” is regulated by the termination of life on request and assisted suicide (review procedure) act, 2002.  this act, states that-------
Euthanasia and physician Assisted Suicide are not punishable, if the attending physician acts in accordance with due care. This criteria concerns---------
1.      The Patient’s Request,
2.      The Patient’s Suffering,
And,                                                                                                                      
3.      The Information Provided to The Patient.
                         
Example
In 2014, in Netherlands and Belgium, there were 3136 cases reported of a physician assisting the death of a patient, usually by drinking a strong (10g) barbiturate potion.
 
Again, on 15th October,2016, 7, 000 persons died of Euthanasia or Assisted Suicide on request through This Act.
 
The above report was done by The University of Virje (Amsterdam), University Medical Centre Utrecht And Statistics, Netherlands; and published in The Lancet on 18.10.2016.
 
B.     IN SWITZERLAND
In Switzerland, Article -115 Of The Swiss Penal Code considers assisting suicide a crime, if the motive is selfish.
The Code also does not give physicians a special status in assisting suicide, although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs.
                  
C.    IN UNITED STATES OF AMERICA
Active Euthanasia is illegal in all States in United States of America, but the physician assisted dying or passive Euthanansia is legal in The States Of Washington, Oregon and Montana.
 
D.    IN INDIA
In India, in this case, The Hon’ble Division Bench Of The Supreme Court, delivered the historic judgement based on---------
·         The Doctor’s Report,
·         The Above Mentioned View of The World Communities / Western Countries,
·         The Definition of Brain Death Under The Transplantation of Human Organs Act, 1994.
           
The Supreme Court held that---------
In this case, The plea was rejected to discontinue Aruna’s Life Support but legalized passive Euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state, under the following conditions ----
1.      The Brain- Dead for whom the ventilator can switched off,
And,
2.      Those in a persistent vegetative state for whom the feed cab be tapered out and pain managing palliatives be added, according to laid down internal specifications.
       
However, on 25th February, 2014; a three Judge Bench Of The Supreme Court, had termed the judgement in this case, to be inconsistent in itself and has referred the issue of Euthanasia to its 5 Judge Constitutional Bench in the following another case-------
 
“COMMON CAUSE (A REGISTERED SOCIETY) V. UNION OF INDIA,2014.”
Conclusion
In conclusion, the legal recognition and criminalization of marital rape are essential steps in upholding the principles of justice, equality, and human dignity within marriage. While the sanctity of marriage is often cited as a reason to exempt marital rape from criminal prosecution, it is crucial to understand that marriage does not nullify an individual's right to consent or bodily autonomy. The existence of legal provisions against marital rape is, therefore, necessary to protect individuals, particularly women, from sexual violence within the confines of marriage. However, it is equally important to approach these provisions with caution. The potential for misuse of marital rape laws, whether through false accusations or manipulation of legal systems, is a valid concern that must be addressed through stringent safeguards and judicial oversight. The implementation of such laws should be designed to ensure that they are not weaponized to harm the innocent while still providing a robust mechanism to deliver justice to genuine victims. Ultimately, the recognition of marital rape as a crime serves as a powerful statement that no relationship, including marriage, justifies the violation of an individual's rights and that our society is committed to upholding the dignity and autonomy of every person. The challenge lies in balancing the enforcement of these laws with careful consideration to ensure they fulfill their purpose without causing unintended harm, reinforcing the need for nuanced and sensitive handling of such cases.