MARITAL RAPE

 

In general sense, whenever we think of rape, the first thing that comes into the mind is a heinous and barbaric act done by a stranger or a malicious person. But what if that malicious person is no one other than your own husband?

Usually no one thinks of rape in the context of marriage as it is difficult to believe that a husband can rape his own wife. Now-a-days marital rape is a very common yet a non-punishable offence and is hidden behind the sacrament of marriage as how can a woman accuse her husband of availing his own conjugal right?

Before getting on with the concept of ‘Rape by Husband’ let’s understand the term ‘Rape’.

As it has been clearly stated out by the Supreme Court of India that “Rape is a deathless shame and the gravest crime against the human dignity.” It is the most atrocious offense committed on a woman.  It means the ravishment of women against her will or without her consent or with her consent obtained by force, fear or fraud or the carnal knowledge of a women by force against her will[1].

 Section 375 of the Indian Penal code explains rape as an unlawful sexual intercourse between a man and a woman without the consent of a woman or against her will under any of the circumstances enumerated under the section will amount to rape[2].

On the other hand, ‘Marital Rape’ can be defined as the rape which takes place within the confines of the institution of marriage. According to Section 375 of Indian Penal Code, rape of one’s wife, who is above 15 years of age, is not considered to be a punishable offence. It is an intercourse or penetration (vaginal, anal, or oral) between a man and his wife without the consent of his own wife obtained by force, threat of physical violence and mental torture where the woman is unable to give her own consent.

According to the Webster dictionary definition of rape indicates that any man can rape a woman irrespective of the relationship status between the two.It is merely the interpretation of judicial and criminal law which has sought to separate forced sex by husbands as rape.

But in India, the customary views on marriage clearly states that a woman needs to be sexually submissive to her husband, irrespective of the fact that if she is raped by her husband then with that,she has to face several other assaults done by him, silently.

It can be clearly noted out that if a woman is physically or sexually assaulted by her husband once then such assaults can happen again and again as she has to live with her assailant no matter what. 

Thus, it is the high time to break the silence and accept the concept of Rape defined in Webster Dictionary i.e. A rape is rape and any man can rape a woman irrespective of the relationship status between them.

Let’s throw some light over the position of laws in India in respect to Marital rape.

If we look into the legal aspects it clearly states that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”[3]. The question arises that why is this right curtailed after she attains the age of 15 years? Though this question still remains unanswered, still if we look to the positive side then the very exemption of Section 375 (IPC) provides justice to the married woman who is below the age of 15 years, although it contradicts the provisions regarding legal age of a woman to marry lawfully.

However, sexual intercourse with a wife, whose marriage with him is void as he was already married and had a living spouse and who was aware of the fact of the first marriage amounts to rape[4].

The inclusion of section 376-A is the favourable development in this regard as here the legal proceedings can be commenced against & the law clearly seeks to prosecute the husband who uses force to have sexual intercourse with his wife who is living separately. This can be clearly concluded that since the wife is showing her disapproval towards her spouse by staying separate, she has surely taken away her consent towards engaging in sexual acts with him.

Article 21&Article 14 of the Indian Constitution speaks about bodily self-determination where the individual has the sole right to take ultimate decisions about one’s own body and, “Equality before law” which prevents state from discriminating amongst the citizens on any ground respectively.

However, when it comes to marital rape, these very rights are snatched away.

Yet, hope is not lost as The Supreme Court, in the famous case of State of Maharashtra v. Madhkar Narayan[5] opined that - every woman has the right to sexual privacy and no one can violate this right. If only the judgement of this Hon’ble court is taken in spirit. Marital rape, to a certain extent has been mentioned, although not explicitly in the Domestic Violence Act 2005 still it could not provide justice to the aggrieved alone.

Hence concluding, Indian laws have failed to provide proper protection to women regarding spousal / marital rape. This prima facie violates Article 14 and 21 of the Indian Constitution.It is high time that the judicial system& the legislature in India makes laws criminalizing marital rape to preserve the dignity of the women.

 Authors - 

Srishti Trigunayat, ICFAI University, Jaipur

Tushar Mehta, ICFAI University, Jaipur

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[1]Bhupinder Sharma v. State of Himachal Pradesh AIR 2003 SC 4684, (2003) 8 SCC 551

[2]Aman Kumarv. State of Haryana AIR 2004 SC 1497, (2004) 4 SCC 379

 [3] Section 375 Of Indian Penal Code, 1860

[4]Bhupinder Singhv. Union Territory of Chandigarh (2008) 8 SCC 631, (2008) Cr LJ 3546 (SC)

[5] State of Maharashtra v. Madhkar Narayan AIR 1991 SC 207