Marital Rape: A Crime That Is Still Legal In India

Introduction:

When you hear the word rape, you feel rape as a heinous crime against girl child or woman. And most of us knew that rape means forcibly having sexual intercourse with a girl child or woman without having the consent of the woman or girl child. Mostly a rape is committed by a strange person and everyone knows that rape is a crime and it is punished by the law. But can you imagine a rape within a marriage? Most probably, no. But, actually yes and it is known as marital rape.

Marital rape is defined as sexual intercourse with one’s spouse without a spouse’s consent. Here consent is the essential element. Marital rape is considered as a form of domestic violence and sexual abuse. Most widely women experience this in abusive relationships

Historical perspective:

Historically a rape is considered as a crime but this is not the case with marital rape. This is because a woman is considered as the property of a man. A man can rape a woman for ‘n’ number of times without having her consent because it is not considered as a crime and he is not punished for that , if he is married to that woman. And society feels that a man has conjugal rights for raping his wife. This can be traced from the statements made by sir Mathew Hale , chief justice in 17th century England. He stated that:

 ” The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract upon his lawful wife hath given up herself this kind unto her husband which she cannot retract”.

This is because of patriarchal society, traditional views of marriage and the domination of men led to the violation of individual rights of women. But these views of marriage and sexuality were challenged in most western countries from the 1960s and 70s especially by the second wave of feminism. This led to the identification and acknowledgement of a woman’s individual rights.

International scenario:

Most countries started to criminalize marital rape from the late 20th century. Countries like Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New-Zealand, Norway, The Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, The United Kingdom, The United States, Indonesia, Turkey, Mauritius and Thailand criminalized marital rape. These countries have enacted and declared marital rape as an offence. But in India, it is not an offence.

Indian scenario:

Section 375 of IPC deals with rape. In this section, there is an exception that a man can have sexual intercourse with his wife, without her consent, if she is not under the age of eighteen. Initially, the age of consent was fifteen but it was raised to eighteen by the Supreme court of India in the judgement of Independent thought vs Union of India in 2017. In this context, a bench of justices Madan B Lokur and Deepak Gupta observed: ” Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance”. However, Supreme court refrained from dealing with marital rape aged above eighteen.

Constitutional perspective:

Every law or regulation made by the parliament should be in confirmation with the principles enshrined in the constitution. If anything which is not in confirmation with the principles enshrined in constitution, considered as ultra vires and unconstitutional.

Article 14 of the Indian constitution guarantees a fundamental right of equality before the law and equal protection of law to every citizen of India. Article 21 of the constitution deals with the right to life and personal liberty. An exemption in section 375 of the Indian penal code that a man can have sexual intercourse with his wife, without her consent, if she is not under the age of eighteen is violating the article 14 and 21, which are the fundamental rights guaranteed by the constitution of India to everyone.

Legal remedies that are available:

The legal remedies which are available for the victims of marital rape are IPC and the Domestic violence act. Section 498A deals with cruelty caused by the husbands and their relatives. There is no particular law to deal with marital rape as it is not an offence in India.

Conclusion:

Marital rape is one of the worst types of sexual violence. Many married women face this and most of them don’t even admit. Women don’t admit this because they are financially dependent on their husbands or the fact that there is no law to with this.

 Marriage is bond of trust, love and acceptance. Under the curtains of marriage many women face rape and because of this they undergo emotional and physical abuse. There is a need for a law to deal with marital rape in India, as India has low gender equality.

Everyone has integrity on their bodies. But in the context of marital rape, women are missing their bodily integrity. Individual and human rights are to be considered when dealing with marital rape. Supreme court of India in the judgement of adultery has said ” wife is not a chattel”. And this should be considered in the marital rape also.

There are some arguments that criminalizing marital rape will destroy the institution of marriage, as marriage is considered as the powerful and sacred thing in our culture. According to Chimamanda Ngozi Adichie (Nigerian author) ” culture doesn’t make people. People make culture. If it is true that the full humanity of women is not our culture, then we can and must make it our culture.

AUTHOR: Laxmi Tanuja Siliveru, University college of law, Osmania University [5ydc- 1st year].