Marital rape implies where the rape takes place within the confines of the marriage. It talks about that phenomenon that is excessively prevalent in India. Women are treated as objects and it is considered that after marriage the husbands own the women. That is the reason of force, threat and other measures used for demanding sexual intercourse from the wife without their consent. But in India, rape within a marriage is not given the status of a crime and women are left to suffer in silence as their fate.
Rape is defined under Section 375 of the Indian Penal Code, 1860. The definition of rape does not enlist the circumstance where the rape takes place by a husband on his wife. It expressly mentions that the sexual intercourse without the consent of the women, where the women is the wife of the man will not come under the purview of rape at all and the women are left to face the consequences.
The situation that previously existed was under Exception 2 of the Section 376 where if a wife is between 15 to 18 years of age and if the sexual intercourse takes place with the husband then it is not rape. This was conflicting in view where the bar is placed on the minimum age of marriage for men and women as 18 years and 21 years. The judgement came in the case of Independent Thought V. Union of India (2017) where Supreme Court of India extended the age in Exception 2 to 18 years concluding that the sexual intercourse with female below the age of 18 years regardless of whether she is married or not amounts to rape in the eyes of law. So, marital rape below the age of 18 years will amount to rape and the husband will be punished for it. Though, the court remained silent on the pertinent issue of marital rape with women above the age of 18 years.
The major thing to consider is that women are not given right of choice and equality. They should be given choice as to deny sexual activity because they have control over their body. Inequality exists where the women who are under the purview of marriage cannot persecute their spouse for rape. It goes against the constitution of India. Article 14 of the Constitution is violated where married women are not given right for it. It snatches away their choice, and liberty in life. This in turn also infringes the fundamental right of life and liberty under Article 21where women has no power over their body. They are subjected to extreme harm and excessive pain and assault.
The husbands are provided with immunity and protection in law from any kind of prosecution just because of being in the stature of marriage. The sexual harm, pain and assault takes place with the women at a constant rate yet the laws are not made for the protection of women’s right in the society. The treatment of women and the mindset in the society as to husband own their wife is the reason for this. In the case of Bodhisattwa Gautam V. Subhra Chakraborty, the court made the observation, “Rape is thus not only a crime against the person of a woman (victim); it is a crime against the entire society.”2
The problem in the society arises when it is considered that as soon as a women marries in the women marries, she gives her consent for sexual intercourse. It is to be believed that husbands become the possessor of women’s body and her right over it. The complete archaic and unorthodox principles governing the women in a marriage and her rights is the reason for growing suppression of women. The law that was brought for the benefit of women that is Domestic Violence Act, 2005 has not been able to accomplish anything. Though, it specifies sexual assault but it says the assault has to be life threatening, it does not deal with the rape that might have in the marriage.
Just because of the reason that a women is married she does not loses right and prerogative over her body. The incessant increase in the marital rape in India can be attributed to the fact that sex is not openly discussed topics in the society. Women are brought up thinking that sex is a mandatory part of marriage to which she cannot at all deny. The discussion in the society about the awareness of the choice in the sexual intercourse and the awareness about the assault on women by the way of rape in marriage is necessary. This lack of awareness is the reason of not reporting rape within marriage, and also no law deals with the punishment for such an offence committed.
The patriarchal society that we live in does not provide women with the decision making process in relation to even their own selves. Marital rape has effect of injury on the women’s private part causing unnecessary and shooting pain and harm. The sexual harm to the women’s vaginal and anal area with the rupture of it causing problems in pregnancy as well is the effect of it. Not to mention the psychological effect on women causing them to live in suppression and subjugation of another person. They do not having any say or authority over their body. It has mental effect causing depression. Marriage in society and cultures is considered as the sacrament where the men can exert their influence over women.
In the case of Nimeshbhai Bharatbhai Desai V. State of Gujarat (2018), the Gujarat High Court provided that there are three kinds of marital rape found in India. The first is the Battering rape where physical and sexual assault on women by beating her up is done. In force only rape, the husband uses force only for sex and does not involve beating. The third kind is obsessive rape where such heinous act of sexual intercourse takes place causing extreme damage to the vaginal area of the women.
A case in Delhi High Court (2018) where a Public Interest Litigation (PIL) was filed by NGO RIT Foundation and All India Democratic Women’s Association. Acting Chief Justice Gita Mittal and Justice C. Hari Shankar said, “Marriage does not mean consent for marriage.” It is important pronouncement where they said that neither spouse can force for sex and that they have right to deny it in marriage. Marriage is not formulated on the principle of sexual intercourse.
It can thus, be concluded that it is very necessary to include marital rape under the ambit of the rape definition. Rape done, whether inside or outside of marriage, is still rape. It has bad effect on women both physically and mentally. It is to be understood that the sacrament of marriage is not to be based on sexual intercourse. Women should be made aware so that they do not silence themselves and put the wrongdoer behind bars. For that, the change in law is necessary.
College: Vivekananda Institute of Professional Studies