By Snehil Sharma
As far as Criminal law is concerned, any act or omission done by an accused person is adjudicated with a focal view upon the “reasonableness of such act or omission” or “reasonable individual”, which can be perceived as a general perspective of any individual who represents the general community. However, if the same ideology is applied to marital rape specifically, it will turn out to be problematic. The reason for same is the mainstream ideology that “husband gets constant consent through marriage for sexual intercourse”.
In patriarchal society, male individual is always considered as a “reasonable person”, who decides the social process of female. As a consequence, to such ideology, women are perceived as nothing more than a reproduction machine and their vested rights concerning reproduction & bodily autonomy are ceased in a preposterous & inconceivable manner[1].
India is included amongst the 36 nations, which have not yet considered marital rape as a criminal offence. Although, the High Courts & the Supreme Court has been deluged with numerous petitions seeking constitutional action against such exception which is provided to section 375 of IPC (Indian Penal Code).
Definition of Marital Rape
If rape is perceived to be “genus”, then act of Marital rape shall be perceived as its species. If we consider the definition provided under Oxford dictionary, “Marital rape is done by an individual to whom the victim is married”. This type of rape is basically a sexual conduct which is undesirable by the partner, committed in absence of consent or against the will of female partner in a forceful and threatening manner. It can also take place when the wife is not in a state to give consent and husband does a forceful intercourse with his own wife.
However, the bitter truth is that the concept of “consent” regarding this type of sexual abuse & domestic violence has not been recognized in the Indian legal framework as an criminal activity till date and this act has been emerged as a major challenge before the Indian Society[2].
Classification of Marital Rape
Marital rape can be further classified into three types which have been evolved by legal scholars and are prevalent within the society:
- Battering Marital Rape: This type of rape inhibits sexual violence coupled with physical violence experienced by a female victim in her marital relation. Rape is committed using physical violence against the will of wife. Majority of marital rape cases are inclusive of this harsh category.
- Obsessive Marital Rape: In this category, male spouse is highly obsessed with sexual acts and he forces his wife to indulge in such activities with him. If the wife refuses such involvement, she encounters torture, assault and perverse sexual activities by the husband.
- Force-only Marital Rape: In this Category, a limited amount of force is exerted upon the wife with an intent of sexual intercourse. Such force is exerted if the wife denies to have sexual intercourse with the husband[3].
Distinction Between Marital Rape and Rape
Act of Rape has been criminalized as per IPC (Section 375). However, marital rape has not been criminalized and it is also an exception to the rape provision of IPC. Such provision specifically provides that sexual intercourse between the spouses is not rape if the wife is not under the age of fifteen years.
Hence, it can be easily perceived that marital rape is not included within the purview of definition of rape.
The relationship which exists between the victim and the rapist has never been given much emphasis while determining any act as a rape, whereas such marital rape is one of the species of rape. Hence, it is concerning the rape of wife without her consent by the husband.
Therefore, we can assume as per what has been provided under section 375 of IPC that marital rape is recognized even if it has not been specifically mentioned in the Indian Law.
Why Marital Rape is not criminalized in India?
Marital Rape has not been considered as a criminal activity due to the perception that it will be a method for destabilizing marital relationships and would be used as an effective tool for harassment of husbands. There are numerous other factors which prevent the criminalization of marital rape such as:
- Pressure from Family: Marital bond is always considered as sacramental under Hindu law and it is supposed to prevail irrespective of any reason. The basic emphasis of such relationship is to beget progeny and performance of religious duties and families often bound their members to abide by such religious duties. In Muslim Laws, marital relation has been provided as a social concept whose purpose is to produce children and to fulfill sexual desires even if the female wants to have it or not. Therefore, no special emphasis has been provided by the families to the human rights of female spouse regarding sexual activities.
- Absence of Laws: It has not been mentioned specifically in any legal framework that the marital rape is a criminal conduct. Even the provision of rape provided under S.375 of IPC do not consider marital rape within its ambit[4].
- Societal Strains: The fear of deterioration of societal image of any individual has always been safeguarding marital rape from being considered as a criminal conduct. This is one of the main reasons marital rape has prevailed within marital relationships which is sacred in nature. Every woman has a right to protect her modesty and if such right is ripped off due to sexual desires of her own husband such acts shall be prevented by legislators. The societal strains have always stopped the wife from raising a voice against the sexual intercourse without her consent.
- Monetary dependence: The Monetary dependence of wife over her spouse has also contributed towards existence of marital rape. During the earlier times, the wife was supposed to stay and home after marriage. Although this scenario has been changed with passage of time but it still exists in some families. Hence, wife is forced to face such sexual brutality because she is financially dependent on him.
Remedies Available Concerning the Marital Rape
Although, no specific legal provision has been introduced which criminalizes the act of marital rape, there are other remedies concerning marital rape which the wife could seek such as:
- Under Indian Penal Code: As provided under S. 376(B) of the Indian Penal Code, any husband who forced his wife for sexual intercourse while living separately due to the reason of decree of divorce etc. is supposed to be punished with a minimum 2 years’ imprisonment which could be extended till 7 years.
- Protection of Women from Domestic Violence Act, 2005: This act was introduced with an objective to protect the woman from domestic violence. This act doesn’t criminalize the marital rape but it allows the woman to seek judicial separation if she is victimized of unwanted sexual intercourse by her husband. Hence, the marital rape can be a ground for seeking judicial separation[5].
Judicial Cases Concerning Marital Rapes
Courts have dealt with numerous cases concerning marital rape and have delivered their decisions keeping in mind the necessary aspects of society such as:
- In the case of RIT Foundation vs Union of India, the union government stated while taking a stand that if marital rape is criminalized the sacred institution of marriage will be destabilized.
- The Supreme Court in case of Independent Thought vs Union of India and Anr [6] held that if the minor wife whose age is between fifteen to eighteen years is victimized of marital rape, then such act of her husband shall be considered as criminal conduct. However, the court did not give much emphasis to those cases where the wife is above eighteen year of age.
- In case of Saretha vs T. Venkata Subbaih[7], the court held that the woman’s vested right will equally be violated in the cases where she is forced to have sexual intercourse with her husband against her will. The rights and duties shall be provided to both the partners in an equal manner. The rights of wife do not get ceased once she enters into marital association with her husband.
Conclusion
Non-criminalization of marital rape has highlighted the problem of gender violence within our country which has not been addressed by the government yet. The definition of rape requires necessary changes. Marital rape cannot be considered a mere happening in any marital relationship as it ceases the basic rights of a woman to resist any unwanted sexual intercourse.
Marital relationships do not provide any individual the permission to torture female spouse for fulfilling sexual desires against her willingness. State has taken decisions regarding issues of marital relationship in the past such as divorce, cruelty, dower etc. It should also include the act of marital rape within purview of legislature as it is of heinous nature. If any state has played a role of arbitrator for dissolution of marriage, then it can also safeguard the right vested with any married female concerning her body.
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Sumedha Chowdhury, 2020. Why Criminalization of Marital Rape Is Still A Distant Dream In India. [online] Business-standard.com. Available at: <https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html>. ↑
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Vakasha Sachdev, V., 2020. Delhi High Court Hears Arguments Against Marital Rape Exception. [online] TheQuint. Available at: <https://www.thequint.com/news/india/delhi-high-court-marital-rape-exception-case>. ↑
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Subodh Asthana, S., 2020. The Viewpoint On Criminalization of Marital Rape In India. [online] Ipleaders. Available at: <https://blog.ipleaders.in/marital-rape-criminalised-india/>. ↑
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Id. ↑
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Id. ↑
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(2017) 10 SCC 800 ↑
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AIR 1983 AP 356 ↑