BY TANUJA KARRI
Abstract: This article illuminates the intricate legal landscape surrounding Marital Rape within the context of Indian Law. “Rape” is given under Section 3751 of Indian Penal Code as the “sexual intercourse against the will of a woman, without her consent, by coercion, misrepresentation or fraud or during that time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under the age of 18 years”. Marital Rape refers to engaging in a sexual activity with spouse after marriage without the consent. “Is Marriage construed as a perpetual agreement to sexual activity?” is the complex question. This research aims to delve into the concept of marital rape and address the potential legal and social challenges regarding this matter.
The Institution of Marriage endows individuals with rights and responsibilities towards each other. Marriage does not take the right of women on her body. Sexual relationship is wholly based on consent of both the parties. Mostly in the arranged marriage system of the Indian society, the consent of the spouse for the sexual activity is at a discount and is taken for granted. This paper aims to examine the discussions happening around marital rape and the social and legal implications related to it.
Keywords:
Marital Rape, Section 375 of IPC, marriage, sexual activity, consent, criminalization, right to life and personal liberty.
1 THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 1* [6th October, 1860.] Section 375,
https://www.indiacode.nic.in/bitstream/123456789/11091/1/the_indian_penal_code%2C_1860.pdf
Introduction:
Rape is rape, no matter who commits it or where it happens, consent for sexual intercourse is basic human right, regardless of one’s marital status. The history of marital rape dates back to the first women’s rights movement in the United States. During that time the feminists contended that the economic and political equality even the vote, would prove hollow, if women did not win the right to set the terms of marital intercourse2. At common law, during the time of 1840’s women who are married had no right to contract, or own property or sue someone. This protest for the women came to an end by the ratification of the Nineteenth Amendment in 1920. This protest went beyond the property rights. Feminists constantly stressed that the women’s right to control the terms of marital intercourse was essential for the true equality, without which the full property rights and suffrage would hold no real value. The core issue lies in the disparity where a woman can assert her rights to life and freedom but is deprived of the same authority over her own body within the realm of marriage. The effects of marital rape on women’s health are profoundly severe. It impacts both the physical and emotional health of women. A woman should “feel safe both physically and emotionally in her home” and should be “respected and valued” for who she is, rather than being seen as “just a sexual object”. Physical violence during marital rape leads to bruises, cuts, fractures, this forced intercourse will also result in gynecological problems, sexually transmitted infections (STIs) and in the worst case scenarios it also leads to unwanted pregnancies.
The objective of this study is to thoroughly analyze and investigate public attitudes and views regarding marital rape. It centers on the effects of marital rape on the survivors physical, psychological, and emotional well being and evaluates the efficacy of legal systems in dealing with marital rape. It further illustrates and proposes recommendations for legal reforms and societal interventions to better protect survivors and prevent marital rapes.
2 Hasday, J. E. (2000). Contest and Consent: A Legal History of Marital Rape. California Law Review, 88(5), 1373– 1505. Available at https://doi.org/10.2307/3481263
Research Methodology:
The approach the researcher employed while writing this paper is qualitative, a deep analysis has been done from various sources. The source of data used by the researcher in this study includes, legal databases such as SSC Online, Jstor, Manupatra LexisNexis, published law reports, legal journals and official websites. Researcher adhered to the proper citation norms for all the legal sources and judgment referenced.
Review of Literature:
The unfortunate truth of our current society is that marital rape is a prevalent issue. It is still not recognized as a crime in many legal systems including India. Despite several efforts and recommendations made by the committees to categorize it as a crime, it remains a pervasive and underreported phenomenon due to certain societal, cultural and legal barriers that were present in the society. There has been an ongoing debate regarding the criminalization of marital rape in India. “Ex-Minister of Women’s Development”, “Smriti Irani” quoted that “to condemn every marriage in this country as a violent marriage, and to condemn every man in the country as a rapist is not advisable3”. She further made a statement to soften the claim by adding that, “Protection of women and children in our country is a priority for all”. For which the “Member of Parliament”, “Binoy Viswam”, quoted that “such statements not only seek to trivialize the issue of marital rape and domestic violence but are deeply insulting to the numerous women who have been subjected to this crime4”. Despite the advocacy from both the opposing and ruling parties in India, marital rape has not been criminalized. One of the main challenges is to identify an act as rape and the other challenge is that, women hesitate to report such cases due to certain fears.
Although important strides have been made in acknowledging and outlawing marital rape, there is still much more to do to guarantee survivors the help they need and to ensure societal attitudes
3 Irani, S. (2022, January 31). Every man is not a rapist: Smriti Irani on marital rape in Rajya Sabha. Hindustan Times. Available at https://www.hindustantimes.com/india-news/every-man-is-not-a-rapist-smriti-irani-on-marital- rape-in-rajya-sabha-101643812199172.html
4 The Swaddle. (2022, January 31). On marital rape, Minister of Women’s Development says ‘every man is not a rapist.’ The Swaddle. Available at https://www.theswaddle.com/on-marital-rape-minister-of-womens-development- says-every-man-is-not-a-rapist
continue to progress. By addressing the complex nature of marital rape, we can work towards a society that is free from any form of violence in their relationships.
Historical context of Marital Rape:
The law when it comes to marital rape is inherently patriarchal. The exception to the rape law, the clause on marital rape i.e., Exception 2 of Section 375 of Indian Penal Code states that “non- consensual sexual intercourse by a man with his wife, if she is over 15 years, does not amount to rape”, was introduced by the British in 1860. Unfortunately, we are still being governed by the age old British laws. This concept of marital rape has remained unrecognized in many countries and their legal systems due to a predominant belief that marriage implied perpetual consent to sexual intercourse. One of the most horrifying marital rape cases in history was Phulmoni Dasi Rape case or Queen-Empress v. Hurree Mohun Mythee5 1890, a case of child marriage in India, where a 10 year old girl was raped brutally by her husband who is two decades elder than her, the post mortem reports showed that she didn’t even begun menstruating yet. Injured vagina was the cause of her death, she was found lying in the pool of her own blood. Her husband was convicted under Section 338 of Indian Penal Code i.e., “causing grievous hurt by act endangering life or safety of others” but not rape, because of the exception provided in IPC, where if a husband had sexual intercourse with his wife and if she is over 10 years it cannot be considered as rape. However this case caused a national uproar and the exception of age for giving consent was increased to 12 from 10 in 1890, which is made 18 now. American sociologists, David Finkelhor and Kersti Yollo concluded that the marriage license can indeed be called a ‘license to rape6’. Is it so? Marriage should be rooted in love and understanding, free from any form of sexual coercion. It is a sacred union to enrich the lives of two people. It has to be a commitment of happiness and growth. Throughout history, society has perpetuated the idea that “marital rape is a private concern rather than a criminal act”. In cultures where men hold the majority of power, marriage is frequently seen as “system of hierarchy in which husbands typically have higher authority than their wives”. Societal expectations dictate that a “wife must fulfill her husband’s sexual desires”, which creates victims the “obstacles in reporting these situations and seek justice”.
5 Queen Empress v. Hurree Mohun Mythee, 1890 SCC OnLine Cal 4
6 FINKELHOR & YLLO, supra note 1, at 2.
Legal and Social Implications Surrounding Marital Rape:
A 2011 study by the International Center for Research on women stated that one in every five Indian men surveyed admitted to forcing their wives into sex, the same study also mentioned that 65% of Indian men surveyed said they believe women deserve to be beaten7, and still women are advised to adjust and save the marriage. Four percent of the women were forced by the husband to enter into sexual intercourse, 2.1% perform sexual acts and 3% were threatened when the wife did not wish to perform, as per the report, NFHS-48. Sadly women who undergo forced sexual intercourse with her husband cannot herself make out if such incident falls under the category of rape or not. If the victim herself is unable to view such behavior of her husband as rape, then how will the phenomena of marital rape be discussed is the question. It has also been found that in cases of marital violence, women who are forced into having sexual relations with her husbands are ashamed to tell other people about their people9, which has been a reason for the under reporting of marital rape cases. The efforts to criminalize marital rape in United States has begun during 1970’s and by now, fifty states adopted laws that allows for the full prosecution of sexual assault by one’s spouse. New Zealand, Canada, France, Sweden, Denmark and three Australian States criminalized spousal rape. India falls in among the 36 countries that have not criminalized the marital rape due to the exception in law for spouses. There is a huge need to criminalize marital rape. Many women feel compelled to give their consent by the patriarchal social context in which they act10. In the landmark case of R v. R11, under the English Criminal Law, the defendant had non-consensual sex with his wife, the court in this case “upheld his conviction for attempted rape12”, and held that “no marital rape exception will be given under English law”.
The appalling gang rape incident in Delhi in December 2012, sparked extensive outrage and demonstrations throughout India, the government took action by establishing the “Justice Jagdish
7 AGNES, F. (2015). Section 498A, Marital Rape and Adverse Propaganda. Economic and Political Weekly, 50(23), 12–15. Available at http://www.jstor.org/stable/24482280
8 Manupatra. (n.d.). Marital rape and law. Manupatra. Available at https://articles.manupatra.com/article- details/Marital-Rape-and-Law
9 Gelles, R. J. (1977). Power, Sex, and Violence: The Case of Marital Rape. The Family Coordinator, 26(4), 339–
347. Available at https://doi.org/10.2307/581754
10 Laird, V. (1992). Reflections on R v R. The Modern Law Review, 55(3), 386–392. Available at http://www.jstor.org/stable/1096409
11 R v. R, [1991] UKHL 12. Available at https://www.bailii.org/uk/cases/UKHL/1991/12.html
12 LawTeacher.net. (2022). R v R [1992]. Available at https://www.lawteacher.net/cases/r-v-r-1992.php
Sharan Verma Committee”. It comprised of “Justice Verma, Justice Leila Seth and Gopal Subramanium” as its core members. The committee was primarily tasked with “reviewing and proposing changes to the current laws related to offenses against women in India”. The committee came up with its report on 23th of January 2013. The committee recommended redefining rape to broaden its scope beyond just penile penetration. It stated that, “rape is a display of power and not an expression of passion, and recommended categorizing it as any form of non-consensual sexual penetration, it also suggested eliminating marital rape exemption, affirming that there should be no automatic consent to sexual activities within the marriage13”.
In the case of “Independent Thought v. Union of India14”, a Non Governmental Organisation, Independent Thought, filed a writ petition before the Hon’ble Supreme Court of India, challenging the constitutionality of Exception 2 of Section 37515 of the Indian Penal Code. The petitioners alleged that this provision violated the rights of a married girl child between the age of 15-18 years, since in all other instances under the IPC the age of consent for sexual intercourse was 18 years16. The Supreme Court quoted that “exception provided in the IPC in terms of rape is arbitrary and discriminatory towards minors”. This judgment “gave voice to all the victims of sexual abuse within marriage”.
In the landmark Supreme Court judgment of “Nimeshibai Bharatbhai Desai v. State of Gujarat17”, there was a question that “whether indulging in oral sex constitutes a marital rape and the husband will be punishable for the same under Section 376 of Indian Penal Code?18” Indian Constitution guarantees women the right to life and personal liberty, but not her body, within the institution of marriage. If a husband assaults his wife, it is considered as an offence under Indian Penal Code. However, if the same husband forces his wife to have sexual intercourse, he would be guilty of assault but not rape, solely because a valid marriage exists. The court also discussed
13 “JS Verma Committee Report: Recommendations and Impact”. Physics Wallah, 14July 2024. Available at https://www.pw.live/exams/ugc-net/js-verma-committee-
report/#:~:text=The%20committee%20recognized%20rape%20as,to%20sexual%20acts%20within%20marriage.
14 Independent Thought v. Union of India, (2017) 10 SCC 800
15 THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 1* [6th October, 1860.] Section 375, Exception 2,
https://www.indiacode.nic.in/bitstream/123456789/11091/1/the_indian_penal_code%2C_1860.pdf 16 Independent Thought v. Union of India & Ors., (2017). Available at http://privacylibrary.ccgnlud.org/case/independent-thought-vs-union-of-india-and-ors
17 Nimeshibhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj732, Available at https://indiankanoon.org/doc/185050052/
18 Nimeshibhai Bharatbhai Desai v. State of Gujarat, 2018 , Available at https://www.casemine.com/judgement/in/5ac5e33c4a93261a1a743968
the types of rapes that are prevalent in the society and classified it into 3 types; (a) Battering rape where women experience both physical and sexual violence within the marriage. (b) Force only Rape husband uses certain amount of force that is required to pressurize his wife. (c) Obsessive rape where assaults involve vicious torture.
At the Delhi High Court, a Non Governmental Organization, named “RTI Foundation19”, filed petition challenging the “exception given on marital rape”. On 22nd of May, 2022, the judges Rajiv Shakdher and C. Hari Shankar, delivered split verdict in this case20. Hon’ble Justice Shakdher in this case, stated that, “the exception was unconstitutional as it was discriminatory and violated a woman’s bodily autonomy and expression. He held that, “in the institution of marriage sexual relations whether consensual or non-consensual, are a legitimate expectation making the exception to rape legal”. The court observed that “the exemption in Section 375 of IPC is violative of the right of personal life and liberty and discriminative towards married women”. The court also stated that “this issue of marital rape should be addressed in a comprehensive way by taking socio cultural realities in India into consideration”. The case marked a crucial step in recognizing “Marital Rape as a crime in India”, and underscored the legal reforms to address this issue. Although the court provided guidelines, marital rape “continues to be immune from prosecution in India”, sparking ongoing debates and advocacy efforts.
The previous cases mentioned aimed to make marital rape a criminal offense, but despite court guidelines, the government has not taken action. The main difficulty is in determining whether an act constitutes marital rape, as it could intrude on the privacy of the couple.
The Ultimate Causes and Consequences of Marital Rape:
There prevails a constant debate around the topic of marital rape and obscurity arises when it comes to how it was defined in the Indian Penal Code. “The women who were raped by their husbands reported that their husbands accused them of being frigid and not affectionate enough”21. “In some cases women may not be able to define forced sex in marriage as a problem
19 RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572
20 Supreme Court Observer. (2022). Challenge to the marital rape exception. Supreme Court Observer. Available at, https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/
21 Gelles
and therefore they may not report it to rape centers”22. Marital rape occurs at a higher frequency than non marital rape in general. The maximum cases of marital rape comes up when the husband is an alcoholic or when he is drunk, men usually force their partners to have sexual intercourse with them when they are not in their senses. Husband’s drinking or temporary emotional upsets are sometimes given as reasons for his wife to have sex, even against her will23. More long term factors that are cited to explain the husband’s behavior include his emotional problems, his overly sexed nature, or his enjoyment in associating violence with sexuality24. In some cases marital rape may be seen as a result of incompatible sex drives or general forms of incompatibility. These can be termed as some of the common causes for the marital rape to happen. “Most women who have experienced the violation of marital rape or rape for any instance will suffer effects that are often severe, such as physical injury, anger, depression, fear, and loss of interest in sex25”. Women felt anger or some other form of negative emotion towards the husband. It was also proven that women who had been raped frequently were the ones whose emotional reactions turned most toward self blame. Most often women suffered pain because of marital sexual abuse, anal or vaginal stretching, bladder infections, vaginal bleeding, missed menstrual periods, miscarriages, infertility and sexually transmitted diseases. Women who are victims of marital rape also go through stress syndrome, severe depression which will haunt them for their whole life.
Suggestions and Conclusion:
After my research, I stand, for the criminalization of marital rape in all the legal systems as it is the need of the hour. It demands immediate action and attention from the government. This necessity arises from the need to uphold human rights, ensure justice for the victims and foster a society based on respect and equality of all. Uniform legislations should be enacted to protect the victims of marital rape at all costs. This can be done by educating the public through campaigns, movies and through other possible ways, these campaigns main focus should be on emphasizing
22 Gelles (n. 7 above); Groth.
23 Walker (n. 14 above).
24 Pagelow, “Double Victimization of Battered Women” (n. 13 above).
25 Ann W. Burgess and Lynda I,. Holmstrom, “Rape Trauma Syndrome,” American
Journal of Psychiatry, 131, no. 9 (September 1974): 981-86; Katz and Mazur (n. 1 above); and Andrea Medea and Kathleen Thompson, Against Rape: A Survival Manual for Women: How To Cope with Rape Physically and Emotionally (New York: Farrar, Straus & Giroux, 1974).
the importance of consent in a marital relationship. There has to be educational programs setup to understand this concept at any early age. Victim support services and rape crisis centers should be established by the government to report incidents and to seek immediate assistance. They should be provided with shelter, legal aid, counseling, medical aid if necessary. Many women don’t come out and report cases due to the fear of abandonment by their husbands and the fear for their future, for such women support should be provided by the government by organizing skill development programs and providing employment. Marital rape remains an overlooked issue but it affects the lives of countless individuals across the world causing them to experience profound trauma. This comprehensive study highlights the need for criminalizing marital rape not only in India but in all the legal systems. While some countries were progressive, there still remains a considerable gap in the legal framework and the societal attitudes that must be bridged in order to ensure justice and protect the victims. Surveys have to be conducted regularly and government should make it a point to educate the rural population about marital rape as it is more prevalent in the rural areas. At last, addressing marital rape requires multi faceted approach that encompasses legal and social strategies. By working together, society can strive towards a future where marriage is rooted on mutual trust and respect, ensuring the rights and dignity of individuals is protected.
References:
- Laird, V. (1992). Reflections on R v R. The Modern Law Review, 55(3), 386–392. http://www.jstor.org/stable/1096409
- Gelles, R. J. (1977). Power, Sex, and Violence: The Case of Marital Rape. The Family Coordinator, 26(4), 339–347. https://doi.org/10.2307/581754
- AGNES, F. (2015). Section 498A, Marital Rape and Adverse Propaganda. Economic and Political Weekly, 50(23), 12–15. http://www.jstor.org/stable/24482280
- https://articles.manupatra.com/article-details/Marital-Rape-and-Law
- Campbell, J. C., & Alford, P. (1989). The Dark Consequences of Marital Rape. The American Journal of Nursing, 89(7), 946–949. https://doi.org/10.2307/3426372
- Frieze, I. H. (1983). Investigating the Causes and Consequences of Marital Rape. Signs, 8(3), 532–553. http://www.jstor.org/stable/3173950
- Rumney, P. N. S. (1999). When Rape Isn’t Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape. Oxford Journal of Legal Studies, 19(2), 243–