ABSTRACT
Marital rape is not defined as a crime in India which is debatable and divergent issue. Except India, many countries have tried their best in making laws for the protection of women. There is a need for immediate criminalization of marital rape. This research paper submits the reason regarding the failure of law in India by not defining marital rape as a crime and the consequences of the same. In this research paper i have done a random research sampling of few married women by a set of questions to understand their marital lives.
Meaning
The word rape itself speaks a lot. Marital Rape is a despicable offence which has startled the faith of marriage. It is the offence also knows as spousal rape meaning sexual course committed by the husband to his wife without her consent. According to national crime records bureaus 2019 report, 70% of women in India is facing domestic violence and marital rape is one of it. India is one of the 36 countries that have yet to criminalize marital rape. According to Indian Penal Code; Section 375 deals with definition of rape and section 376 of Indian Penal Code deals with punishment of rape. INDIAN PENAL CODE OF INDIA. As per the (IPC Sec.375 No.45 of 1860, India Code), if the wife is above 18 years of age it would not be considered as marital rape even if it’s without her consent.
KEYWORDS
Marital rape, Consent, Sexual Intercourse.
INTRODUCTION
When it is the person you have entrusted your life to who rapes you, it isn’t just physical or sexual assault, it is a betrayal of the very core of your marriage, of your person, of your trust. In every 16 minutes a girl has been raped in India and every 4 minutes she experiences eventually at the hands of her in laws.[1] Marital rape also comes under the cause of rape which defines that the women have been forced to have sexual intercourse with her husband. Marital rape is higher in ratio than domestic violence. Marital rape has been issued in more than 100 countries and they have been sentenced for punishment but India is one of the 36 countries where marital rape is not criminalized. This thing leads to disempowerment of women. An analysis of National family health survey (NFHS) 2015-16 data indicates that an estimated 99.1% of sexual violence cases go unreported and that the average Indian women is 17 times more likely to face the sexual violence from her husband than from others.[2] Women are not even safe after marriage. If she raises her voice against the in-laws to her own family instead of supporting her, her family advises her to stay strong. 99% men’s mentality says that the idea that marriage makes a woman her husband’s sexual property and giving him sex whenever he wants is wife’s duty. But when a woman says no even if it’s his wife. NO MEANS NO.
Women who is raped by the stranger lives with the memory of the horrible attack and the women who is raped by her husband lives with the rapist. Any disagreement by women applies not only to her husband but also to the patriarchal family.
The Justice JS Verma Committee, constituted after the Nirbhaya rape case, said in 2013 that forced sex / sexual between spousal partners should also be considered as rape and punished as a criminal offence.[3] The UPA government did not incorporate this suggestion, arguing that such a move would destroy the institution of marriage.
Why can’t our male dominated legislature and judiciary understand that the wife is a partner and not a property.
The wife should have the confidence and self determination to refuse to have sex and cannot be forced by her husband to do it. A husband’s duty is to secure his wife and deals with every situation in life together and instead of this he himself begins raping his wife and should get the strictest punishment.
If a husband can be charged for killing his wife in an event the. Why can’t he be charged for raping his wife? No marriage gives you a license to touch her without her consent.
It is so shameful for us to live in this Indian culture where marital rape is not criminalized.
Women who are raped by their spouse ha e experienced horrible incident that the actual rape. As the trust and belief of marriage has been broken by the spouse. This marital rape offence has fractured the pure relation of marriage.
Every girl keeps a dream of having a fairy tale marriage but if this would be the situation of India every girl’s dream will be shattered. It is so shocking for us to know that no punishment is occurred for marital rape in India.
Rape is rape, even if it is done by your husband!
Article 14 of the Indian Constitution says that equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The constitution swears to protect all but discriminates for women who has been raped by their own husband.
EFFECTS OF MARITAL RAPE
PSYCHOLOGICAL EFFECTS: Fear, stress, suicidal tendencies.
PHYSICAL EFFECTS: Injuries to private parts, blackened eyes, torn muscles.
TYPES OF MARITAL RAPE
1. Battering rape: In battering rape women experiences both physical and sexual violence in the relationship and they experience this violence in various ways.
2. Force only rape: In what is called force – only rape, husbands use only the amount of force necessary to coerce their wives.
3. Obsessive rape: Other women experience what has been labeled as sadistic or obsessive rape.
DIFFERENCE BETWEEN STRANGER RAPE AND MARITAL RAPE
Stranger rape is usually a one – off, someone you don’t know, with whom you don’t share and experiences or history. When the assault happens, there can be no doubt as to what is happening.
In marital rape the circumstances are different. It is quite apart from a physical and sexual violation – a betrayal of trust. Here is a person whom you thought you knew intimately, with whom you share a history , a home and quite often children , a person with whom you shared your intimate secrets and fears , and whom you believe to love you..
CONSEQUENCE
Approximately 70% of the family husbands are the breadwinner, as per the report shared by Apollo Munich Health. Rest in 30% of women also earn with their husband.[4] An ego clash between their relationship and husband leads to abuse his wife to establish his superiority. When the man feels his ego has been hurt, he chooses to overpower his wife sexually as a form of punishment. Another reason this may occur is due to repeated trauma of her husband do not give consent for sexual desire and feels disconnected from her husband , the husband might try again to rape and abuse her. Men who have the habit of taking drugs and alcohol also the reason of marital rape. Due to the drunk and intoxicant mode he tries to abuse his wife sexually.
RESEARCH METHODOLOGY
This research paper is primarily based on data from which I have done surveys of 10 women who are survivors or know some.
QUESTIONNAIRE:
Q-1 Are you married?
□ Yes
□ No
Interpretation: 100% of respondents are married, while 0% of respondent are unmarried.
Q-2.What is the highest level of education you have completed?
□ No formal education
□ Completed graduate school
□ Graduate from college
Interpretation: 60% of respondents say they have completed formal education while 30% have graduated from school rest 10% have completed graduate from college.
Q-3. Number of years of your marriage?
- 0-5
□ 6-10
- 11-15
- 15- above
Interpretation: 50% of the respondents say 0-5 years while 20% say 6-10 years ,20% of respondent say 11-15 years rest 10% say 16- above years.
Q-4 Did you ever faced any type of violence in your marriage?
□ Yes
- No
Interpretation: 60% of respondent say yes while 40% of respondent say no.
Q-5 Which type of violence you faced in your ,marriage?
□ Mental
- Physical
- Never
Interpretation: 40% of respondents say mental violence ,30% of respondent say physical violence rest 30% they never faced violence in their marriage.
Q-6 Did you ever complain about it?
□ Yes
□ No
Interpretation: 20% of the respondents say yes while 80% of respondent say no they haven’t complaint about it.
Q-7 What is the reason you chose not to complain about it?
- Fear of more violence
- Fear of family customs and traditions
- Fear of separation
Interpretation: 10% of the respondents they have fear of more violence ,40% of respondent have fear of family customs and traditions, while 10% of respondents have fear of separation, rest 40% of respondent say none of the above.
Q-8 What do you think is the root cause of marital rape?
□ A way of showing dominance over spouse
□ Alcohol and drug dependence
□ Stress and disturbed emotions.
□ Sexual disagreement between couples.
Interpretation: 40% of the respondents say the root cause of marital rape is a way of showing of dominance over spouse, while 30% say alcohol and drug dependency, 20% say stress and disturbed emotion rest 10% say sexual disagreement between couples is the root cause of the martial rape.
Q-9 Someone you know has gone through this problem?
□ Yes
□ No
Interpretation: 70% of respondents say yes ,rest 30% says no they know who has gone through this problem.
Q-10 Is it important for people to know?
□ Yes
□ No
Interpretation: 100% of the respondents say yes it’s important for people to know while 0% say no it is not important for people to know.
RATIONALE
Marital Rape has become common in our country but not criminalized in India. My motive to do this survey is in online marketing response time is almost instant. More and more people will learn and get to know about this. It is an opportunity to make people aware about your problem. A survey data collection tool used to gather information about individual, if they have experienced that particular problem.
AFFECT ON WOMEN’S LIFE
In India since girl’s childhood they have been taught to stay strong in any matter, you have to sacrifice many things in your life. Does it mean anyone can do anything without your consent? No. It is said that after a girl is married it is her personal life and whatever happens between her and her in-laws is a personal matter and she can’t raise her voice against them. Many of the innocents have lost their life because their family didn’t support them.
PUNISHMENT OUTSIDE INDIA
- The highest punishment for marital rape is of 15 years of imprisonment in Austria which was criminalized in 1979.
- In 1994, Finland criminalized and proscribed punishment up to 4 years; and if violence has been committed on a married woman then the punishment provided is more severe.
- Jordan: a husband who has committed marital rape on his wife shall be punished with at least 10 years of rigorous imprisonment.
- Ireland: it removed marital rape exemption from Irish criminal law.
- Germany: in 1947, the exemption was removed through an amendment.
- Dominican Republic: criminalized spousal rape in 1997.
- US: marital rape has been criminalized.
- Israel: In 1980, the decision of the Supreme Court of Israel criminalized marital rape. It was considered a Felony crime, with punishment up to 16 years or 20 years
- India: It doesn’t consider marital rape a crime yet, but it has an exception in the IPC under Section 375, a man who has intercourse with his wife who is above the age of 18 years is not considered as raped by her husband.[5]
While intercourse with a separated wife is considered as rape and such a person shall be punished up to 7 years of imprisonment under a separate law.
REVIEW OF LITERATURE
India’s judiciary needs to wake up. It’s very high time. If you’re in a marriage it doesn’t mean the freedom and rights of your life have finished and you have become the property of your husband. It doesn’t mean he can do whatever he wants against your will. India is one of the 36 countries where marital rape is not illegal. The 21st century upholds this. What would be the future of India?
In the case of Dilip Pandey s/o of Ambika Prasad Pandey and 2 others vs. State of Chattisgarh through S.HO Police Station Bemetara, District Bemetara CG High Court of Chattisgarh Bilaspur proceedings through video conferencing.
In this instant case, the complainant has reported that the applicant No.1 / husband has many times, without her consent, made unnatural physical relations with her and even inserted his finger and radish also in her private part.
Although, except insertion of finger and radish in her private part , what other unnatural physical relation he made with the complainant, she has not stated, which is a matter of evidence, but, only on that ground, charge framed under Section 377 of the I.P.C cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of IPC where dominant intention of the offender is to derive unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a cmal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the I.P.C. In the view of above, judgment of Nimeshbhai Bharatbhai Desai (supra) is of no help to the applicant No.1/ husband with regard to charge under Section 377, of the I.P.C.
Therefore, I do not find any infirmity or illegality committed by learned trial court in framing the charge under Section 377, of the I.P.C. against the applicant No. 1/husband.
Consequently, the instant revision is partly allowed. The applicant No 1 is discharged from the charge framed against him under Section 376 of the I.P.C. This court finds that the trial court has not committed any illegality in framing the charge under Section 377 of the I.P.C. against the applicant No 1 and under Section 498- A/34 of the I.P.C against all the applicants. Section 376 of the Indian Penal Code, 1860; whenever a person has committed rape he shall be punished with rigorous imprisonment which may extend up to life imprisonment and fine. When it comes to marital rape,it is not defined under IPC due to which a certain class of women is still struggling.[6]
SUGGESTION
The first step would be to clearly define marital rape, codify if in law and criminalize it. Other than this we need to focus on educating females and setting them free from financial dependency from their husband. The more educated and empowered women, the lesser their dependency on men. The men should be properly educated and should taught concept of manhood and what it means to be a man.
CONCLUSION
Whether it is a man or woman humanity should stand equal for both. But women have been subjected to a lot of humiliation by men since ancient times. Rape is one of the most heinous crimes. Marital rape is not criminalized in India. If defines a problem which is very serious against women. Women who are raped by their husband suffer more than the actual rape victim. Marital rape is more traumatic for women as she has to stay with her assailant. This problem of marital rape is increasing day by day and it needs to be criminalized. There should be dire need for the change in laws in marital rape. The punishment for marital rape should be same as prescribed for rape under section 376 of IPC. In India marital rape is de facto but not de jure. According to Joint Women Program a NGO it is found that one out of 7 married women has been raped by their husband at least once. They frequently don’t report these cases as law don’t support them. The mentality of law needs to be changed. Many of the marital rape victims don’t complaint and decide to stay in the sexual abusive marriage as they are financially and mentally depend on their husband. Rape does not make a man a lousy husband it makes him a criminal.
Name: Zoya Faheem Ansari
College: Rizvi Law College, (Mumbai)
[1] NCRB, https://ncrb.gov.in/ (Jan. 7, 2022)
[2] The Indian Express, https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/ (Dec, 20,2020)
[3] Prem Chowdhry, Time to define the law on marital rape, There is an urgent need for the judiciary, (2021)
[4] Business Standard, https://www.business-standard.com/article/news-ani/indian-women-still-viewed-as-supplementary-bread-earners-survey-117030600458_1.html (March 6,2017)
[5] Nazrin bano, Marital rape in india, India’s judiciary needs to wake up, (2021)
[6] Dilip pandey son of s/o ambika Prasad pandey & 2 ors v. State of Chhattisgarh, CR.R.No.177 of 2021.