Open Access Research Article
MARITAL RAPE: THE LEGAL RAPE
Published Paper
Article Details
MARITAL RAPE: THE LEGAL RAPE
AUTHORED BY
- DHARANI RAI
ABSTRACT
Marriage is a relationship of love
and mutual respect towards each other violence has no place there. But
in Indian culture there are different types of violence against wives one of
which is marital rape, where the consent of the wife irrelevant. Marital rape
refers to undesirable sexual intercourse by a husband with his wife without her
consent or consent obtained by force or threat of force or physical violence.
Rape is a rape whether it is a stranger rape, date rape or marital rape, but
unfortunately our Indian law doesn’t recognize marital rape as a crime as it is
exempted from a definition of rape under section 375 of I.P.C( section 63 of
Bharatiya Nyaya Sanhita 2023). Rape is not just a assault against women but it
is a infringement of the fundamental right to life and personal liberty of a
women any relation between a victim or a perpetrator cannot change it.
Keywords: Marital rape, consent, sexual
violence, patriarchy
“The secret of a happy marriage is
finding the right person. You know they’re right if you love to be with them
all the time.” _ Julia Child
INTRODUCTION
According to the National Family
Health Survey 5 (2019-21), “Among married women aged 18-49 who have ever
experienced sexual violence 83% report their current husband and 13% report a
former husband as perpetrator.”[1]But
ironically, the Indian Government recently has opposed petitions in the top
court that seek criminalization of marital rape saying it would be “excessively
harsh”. Spousal rape is now disgraced by international conventions and
increasingly criminalized by more than 100 countries, including Britain which
criminalized it in 1991. But India remains among the countries like Pakistan,
Afghanistan and Saudi Arabia which didn’t criminalize the marital rape.[2]
These figure raises the serious
concern regarding the problem of marital rape in India, where the victim
doesn’t have any remedy. This notion of the government firstly, creates an
unjustified distinction between the rape victims based on their relation with
perpetrator. Secondly, it shows the patriarchal mindset or ideology of the
government of India.[3]
The above data somehow makes it clear that the
patriarchal mindset of the people are still prevailing in the society.This
concept of marital rape was not known earlier. Even though it was always
prevalent in the society, people was not aware about how wrong it was and is
actually the violation of fundamental rights of women. The women itself considers
it as right of her husband and they still do.
MEANING OF
MARITAL RAPE
Marital rape is often referred as a
conjugal rape, is when a partner engages in sexual conduct without the other
person’s consent. Marital rape is when a man engages in sexual conduct with his
wife against her will, out of risk to their physical safety. It is the term
used to describe acts of domestic abuse and sexual abuse that takes place
between the married couple. Consideration of marital rape as legal act in India
inculcates a fear of insecurity in the hearts and minds of the women and also
impacts on the women’s sexual rights in India and gender equality.[4]
Marital rape broadly, may be
classified in 3 parts as
·
Battering rape: In this type the women experiences both physical and sexual violence in
the relationship. It is the most common form of marital rape. 48 percent of all
cases of marital rape are considered as battering rape.
·
Force Only Rape: In this type of rape, the husband uses only the amount of force necessary
to coerce their wives. It is the second most common form of rape.
·
Obsessive rape or sadistic rape: These assault involve torture and or perverse sexual acts and
are often physically violent.[5]
HISTORICAL
VIEW ON MARITAL RAPE:
About 10 million marriages takes
place in India annually. In India marriage is considered as a holy institution
in a society, it is a collaboration of two souls, a sacred bond based on trust,
mutual love, and respect towards each other followed by rights and duties
arising out of it. As observed by a British jurist Matthew Hale: “Marriage was
a legal contract by which a women ‘gave herself’ to her husband for life”. It
is because of this vague notion it is considered that the women has surrendered
herself to her husband and he has all the legal right over his wife and he can
fulfil his sexual desire through his wife in accordance with her will in a
peaceful manner or even without her will and against her consent in a forceful
manner.[6]
The Rigveda mentions about the rape.
The victim is Ushas (Dawn), who flees to the cave, traumatized. She is then
befriended by minstrel rishis who offer her support and singers gather in front
of the ushas’s cave praising her radiance and persuading her to come out.
Societies did not judge her rather rallied her aid and helped her to emerge
from post traumatic depression into a happy and normal life. In one of the
hymns rapist is punished, one of the arrow is shot on him.[7]
Vatsyayana in his Kamasutra warns the
husband (especially in case of arrange marriages) not to force themselves on
their wives: “ women, being of a nature, want tender in the beginnings, and
when they are forcibly approached by a men with whom they are slightly
acquainted, they sometimes suddenly become haters of sexual connection, and
haters of male sex. The man there fore approach the girl according to their
liking.”[8]
But sadly the human race with evolution stopped following what is there in the
scripture and considered women as a race weaker race and men have a dominance
over them, and gradually this rape culture started to develop in India from
time to time.
·
Ancient Societies: Historically the rape and sexual violence were often used as
a tool of war and women were treated as spoils of war. In Mahabharata the
Draupadi was molested in the public. But sadly this molestation is camouflaged
as Krishna’s divine intervention is praised but there was no protest that the
her husband and family didn’t intervene. Ramayana also revolves around the
abduction of a women.
·
Middle Ages: Rape was treated as a property crime, with fines or compensation being
paid to victim’s family or husband, rather than focusing on the violation of of
the victim’s right. Marital rape was not recognized as crime, as women were
considered as a property of their husband.
·
Colonialism: European colonisers frequently used sexual violence as a means of
asserting dominance over a indigenous populations.
·
Early Modern Period: In a Victorian era the rape was often seen as an attack on a
woman’s purity and honour. In many cases, victims were blamed for the assault,
and perpetrators could escape punishment if they married their victims.
·
Legal Changes: Over the year many legal reforms have taken place to address rape and
sexual assault more effectively. These includes lowering the burden of proof,
providing services for the rape victims, increasing public awareness[9]
and even many countries recognised marital rape as a crime but not India.
LEGAL
POSITION IN INDIA:
Section 375 of Indian Penal Code 1860
(section 63 of BNS 2023) defines rape as "sexual intercourse with a woman
against her will, without her consent, by coercion, misrepresentation, or fraud
or at a time when she has been intoxicated or duped, or is of unsound mental
health and in any case, if she is under 18 years of age”[10]
In 1860 minimum age of consent is 10 years. Exception 2 of this section
provides that “Sexual intercourse or sexual acts by a man with his own wife,
the wife not being under eighteen years of age, is not rape.”[11]
Thus IPC which was drafted at 1860 didn’t recognise marital rape as a crime.
For almost 30 years after the
enactment of IPC 1860, rape laws remained same in India. Thereafter, a number
of incidents in Bengal in which the child wife died due to consummation of
marriage resulted in lot of agitation against the ambit of the offence and age
of consent. One of the popular case was Queen Empress v. Haree Mohan Mythee[12]: In
this case Phulmonee Dassee, who was eleven years and three months old when she
died as result of rape committed on her by her husband. The medical evidence
showed that she had died of bleeding caused by ruptured vagina. In this case it
was held that the husband didn’t have the right to enjoy the person of his wife
without regard to the question of safety to her.[13]
Later the Indian Criminal Law
(Amendment) Act 1891 raised the age of consent to 12 years both in cases of
marital and extra marital rape. Then at 1925 age of consent in case of marital
rape raised to 13years and other rapes raised to 14 years , this remained the
same even after the passing of child marriage restraint act 1929 which fixed
the minimum age of marriage to be 14 years. Later on at 1940 with the with the
amendment of child marriage act age of consent also raised to 15years in case
of marital rape and 16 years in case of other rape. Subsequently at 2013 the
infamous Nirbhaya case lead to the formation of Justice Verma Committee and as
a result criminal law amendment act 2013 was adopted which increased the age of
consent to 18 years but no changes was made in case of marital rape and later
at 2017 through amendment the age of consent in case of marital rape got
increased to 18 years.[14]
In India marital rape is a civil
offence under Protection of women from Domestic Violence Act 2005 that is it
exists defacto but not dejure. Only two groups of women are covered by rape
legislation in India- those being under age of 18 years and those who are
separated from their husband. In 1983 Section 376A was added in IPC 1860, which
criminalised the rape of a judicially separated wife, This amendment was based
on recommendations of the Joint Committtee on the IPC( Amendment ) Bill , 1972
and the law commission of India. The committee rejected the contention that the
marriage is the license to rape. Thus husband can now be imprisoned upto 2
years, if there is sexual intercourse with his wife, secondly without the
consent, thirdly she is living separately from him.[15]
Recently the Indian government
opposed the petitions in the top court that seek to criminalise the marital
rape saying that it would be “excessively harsh”. The federal Home ministry
told the Supreme Court that “a man doesn’t have a fundamental right” to force
sex on his wife, there were enough laws to protect married women from sexual
violence.[16]
JUDGEMENTS
AND RECOMMENDATIONS ON MARITAL RAPE:
In the case of the Harvinder Kaur
vs. Harmander Singh, The Delhi High Court held that the Constitution of
India could not intervene in household matters as it would destroy the
institution of marriage. The court also stated, "in the privacy of the
home and married life neither Article 21 nor Article 14 of the Indian
Constitution have any role to play". In the case of the State
vs. Vikash, 2014, Special fast track court in Delhi stated that "the
petitioner and respondent (accused) being a legally married husband and wife,
the petitioner being major, the sexual intercourse between the two, whether
forcible, cannot be considered as rape and no conviction can be fixed
upon the accused."In 2016, Maneka Gandhi, then minister for
Women and Child Development stated that due to illiteracy and poverty in India
the concept of marital rape could not be applied here even if it is accepted
and understood globally.[17]
SUGGESIONS:
Thinking of criminalising the marital
rape, following two questions would pop up in my mind, that is:
1. Whether criminalising marital rape
will effect the rights of men in the country ?
2. Whether only by criminalising the
marital rape, the misery of the women in the country comes to an end ?
Coming to the 1st question
the men’s right organisation and government of India has put forward certain
arguments against the criminalisation of the marital rape in India. Some of the
arguments are as follows:
·
Difficulty
in proving the cases of marital rape.
·
Availability
of adequate alternate remedies in the form of Section 498-A IPC( Section 85 of
BNS).
·
It
would destroy the institution of marriage.
·
Probability
of misuse of such law is more.
Before writing this article, I have
conducted a small survey among my friends and family circle, where most of my
female friends were in support of criminalisation of marital rape whereas my
male friends gave a mixed opinion on it. This doesn’t mean that most of the men
are misogynist but rather they are concerned about the misuse of the law. But
only because the law may be misused the criminals cannot be left unpunished.
Every law will have its own loophole, to look into this the appropriate
committee has to formed.I agree that if marital rape is criminalised some women
may put a false cases on their husbands, but as we all know before punishing
any accused there is a court proceedings where the evidences are ascertained
only after that the appropriate judgement is passed by the court, so accused is
also given an opportunity to prove his innocence. And fine has to be imposed on
a women who has instituted a false case against her husband.
There is also an argument that, there
is an alternative remedy for marital rape in the form of section 498-A(section
85 of BNS). But there is a difference between a crime of rape and cruelty and
maximum punishment given under this section is imprisonment for a term of 3
years which is inadequate to punish offender of such grave offence.
Other argument is that such law would
destroy the institution of marriage. But criminalising marital rape will only
free the innocent souls from the clutches of her husband. Criminalising Marital
rape doesn’t disturb the marriage, what actually destroys it is the rape
committed by a husband on his wife.
Coming to the second question only by
criminalizing the marital rape, women will not be free from the agony. Because
as we all know, except the marital rape all other rape laws are well developed
in India, but still today many of the rape cases go unreported because of the
lack of awareness. So even after criminalising the marital rape women may not
come forward to report it, as many of the women still believe that her husband
has all the right over her body. Thus spreading awareness about such laws among
people is more important. Awareness has to be spreaded through public campaign,
movies and serials which influences the people more.
There is another argument that due to
illiteracy, in India the marital rape cannot be criminalised but we all know
that this question also arised at the time of
introducing digital payment in India, which we have proved wrong so society
may gradually adapt itself to the new law if marital rape is criminalised.
Another reason for the marital rape
in India is the patriarchy. Here parents play a important role, it is their
duty to teach their male child how to respect a women from very young age and
also to teach that the doing dishes, cooking, washing cloth and all the other
daily courses are not the duty meant only to the women but the basic duties
which everybody need to learn to lead their life. Most of the victims of the
marital rape are okay with their husband forcing them to have sex. They
consider it to be the right of their husband which is not okay, but here we
cannot blame women, because that is what they have been thought from the
childhood, to cook for men, to serve the men first, wait until the men had
their food which might not be the case in the modern household but we cannot
deny that its still happening in the rural society.
CONCLUSION:
A marriage is the bond of trust and
love, sexual intercourse is a normal commitment of marriage but use of force in
sexual intercourse cannot be accepted. Under Domestic violence act the husband
can be punished for sexual violence against a women with a matrimonial relief.
But what is lacking is the criminalization of marital rape in our legal system.
But right now our Indian laws provides a absolute immunity for a husband
against rape laws. Marital rape is not a privilege of a husband, but is a
injustice against a women which need to be criminalised.
1)
REFERENCES:
2) National Family Health Survey (2019-21), ( 15
March 2025 8.19 pm), https://www.thehindubusinessline.com/data-stories/data-focus/marital-rape-most-married-women-are-sexually-abused-by-their-husbands-says-nfhs-data/article65409875.ece
3) BBCNews,
( 15 March 2025 8.24pm), https://www.bbc.com/news/articles/c80r38yeempo#amp_tf=From%20%251%24s&aoh=17312901239292&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Fwww.bbc.com%2Fnews%2Farticles%2Fc80r38yeempo
4) Urvashi Shahi, “Rape behind closed
doors”:Making the case for removal of exemption clause, Vol. 45(4)2018, Indian
Bar Review ( A Referred Journal)
5) Pratiba
Sahu, Marital Rape : An Impediment On Women’s Rights In India,( Volume 9, Issue
1, 2023), International Journal of Law and Social Sciences
6) Abhayan,
Types of Marital Rape, Legal Service India E-Journal, ( 15 March 2025 8.36 pm),
https://www.legalserviceindia.com/legal/article-5571-types-of-marital-rape.html
7) Brishti
Guha, The Moderns of Ancient India, TOI Edit page (15 March 2025 8.45 pm) ,https://timesofindia.indiatimes.com/blogs/toi-edit-page/the-moderns-of-ancient-india/#amp_tf=From%20%251%24s&aoh=17319023831275&share=https%3A%2F%2Ftimesofindia.indiatimes.com%2Fblogs%2Ftoi-edit-page%2Fthe-moderns-of-ancient-india%2F,
8) Badre
Afshan, Dark World Of Rape Culture In India, Mainstream Weekly, VOL 61 No 39,
(15 March 2025 8.49 pm), http://www.mainstreamweekly.net/article13818.html
9) Manik Tindwani, (15 March 2025 8.52pm),https://lawfoyer.in/legal-provisions-on-rape-in-indian-penal-code
10) India
Code, ( 15 March 2025 8.57 pm) , https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=424
11) Queen
Empress v. Haree Mohan Mythee (ILR 1891 Cal 49)
12) Bhagyashika
Saptarshi, Marital Rape and Law, manupatra articles, (15 March 2025 9.06 pm ), https://articles.manupatra.com/article-details/Marital-Rape-and-Law
[1] National Family Health Survey
(2019-21), https://www.thehindubusinessline.com/data-stories/data-focus/marital-rape-most-married-women-are-sexually-abused-by-their-husbands-says-nfhs-data/article65409875.ece ( Last visited on 26th February)
[2]BBCNews,https://www.bbc.com/news/articles/c80r38yeempo#amp_tf=From%20%251%24s&aoh=17312901239292&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Fwww.bbc.com%2Fnews%2Farticles%2Fc80r38yeempo , ( Last
visited on 26th February)
[3] Urvashi Shahi, “Rape behind
closed doors”:Making the case for removal of exemption clause, Vol. 45(4)2018,
Indian Bar Review ( A Referred Journal)
[4] Pratiba Sahu, Marital Rape : An
Impediment On Women’s Rights In India,( Volume 9, Issue 1, 2023), International
Journal of Law and Social Sciences
[5] Abhayan, Types of Marital Rape,
Legal Service India E-Journal, ( 15 March 2025 8.36 pm), https://www.legalserviceindia.com/legal/article-5571-types-of-marital-rape.html
[6] Supra note 5 (64-65)
[7] Brishti Guha, The Moderns of
Ancient India, TOI Edit page,https://timesofindia.indiatimes.com/blogs/toi-edit-page/the-moderns-of-ancient-india/#amp_tf=From%20%251%24s&aoh=17319023831275&share=https%3A%2F%2Ftimesofindia.indiatimes.com%2Fblogs%2Ftoi-edit-page%2Fthe-moderns-of-ancient-india%2F,
( Last visited on 26th February)
[8] Ibid
[9] Badre Afshan, Dark World Of Rape Culture In
India, Mainstream Weekly, VOL 61 No 39, http://www.mainstreamweekly.net/article13818.html
,( Last visited on 26th February 2025)
[10] Manik Tindwani,https://lawfoyer.in/legal-provisions-on-rape-in-indian-penal-code ( Last visited on 26th
February 2025)
[11] India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=424
, (
Last visited on 26th February 2025)
[13] Supranote 3 (189)
[14] Ibid (189-192)
[15] Supranote 4 (174-175)
[16] Supranote 2
[17] Bhagyashika Saptarshi, Marital
Rape and Law, manupatra articles, https://articles.manupatra.com/article-details/Marital-Rape-and-Law
, ( Last visited on 26th February 2025)
Article Information
MARITAL RAPE: THE LEGAL RAPE
Authors: DHARANI RAI
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.