ABSTRACT
In modern India, marital rape—the non-consensual sexual act between spouses—remains a contentious and little-studied topic. The purpose of this research paper is to provide readers with a thorough knowledge of marital rape in the Indian setting by looking at its social, legal, and cultural aspects. The prevalence, attitudes, and perceptions of marital rape among young people (18–30 years old) are investigated in this study using a combination of quantitative and qualitative approaches. The study draws attention to the substantial gaps in victim protection and legal recognition as well as the ingrained patriarchal norms and gender dynamics that support the normalization of marital rape
KEYWORDS
Marital Rape
Sexual Consent
Gender-Based Violence
Societal Attitudes
Patriarchy
Gender Dynamics
Anti-patriarchal
INTRODUCTION
India is a land rich in its culture and traditions that have existed since time immemorial. The structure of Indian society starts from its basic societal norms that makes the whole design of the contemporary land unique and so colorful. However, many of these societal norms are still prevalent in the post-modern world, some of the ancient norms that symbolized dominance, chauvinism and atrocities over women can be well identified on news channels and other sources of media communication. Social evils such as Child Marriages, Forced Marriages (Pakadva Viah), Devadasi System, Pardah system and etc. are still prevalent in states such as Bihar, Rajasthan, Haryana, Jharkhand, Uttar Pradesh and etc. despite of being declared illegal and void under the Indian legal framework. These Social immoralities are problems that impact a society’s members either directly or laterally indirectly and are viewed as innocently dubious or problematic. One such social evil is Marital Rape, which has existed in Indian society since ancient times. The concept of Marital Rape came into existence in 1736 as a legal statement documented by Sir Matthew Hale, who was a chief justice in England. Since then, the matter of Marital rape came into concern. In 1932, Poland became the first country to address marital rape and criminalized it, many Scandinavian states such as Sweden, Denmark, the former Soviet Union and Norway followed it. Furthermore, Australia, due to the feminist movement, became the first common law country to pass reforms in year 1976 criminalizing rape in marriage. But, on the other hand India is yet to take a decision on criminalization of marital rape. What opinions does citizens of India have on marital rape? What factors do they think are behind its prevalence in the state? And are they in full support of its criminalization or are they still dubious and conservative for the same? These all questions are yet to be answered. The research question above briefly highlights the main theme of this research paper. The question emphasizes on the current social norms and public opinions on rape within the marriage, as marriage is considered a sacred bond and is also referred to as an institution. What makes the public in general think of the concept of ‘consent’ within the marriage for intimacy? What are the opinions of the youth as by their thoughts and opinions society will evolve itself and prepare for pondering upon such a matter which is sensitive and is of extreme concern. What factors keep people silent while reverting on its criminalization? Is India ready for such a decision? I have tried to answer these questions in my research paper by using various concepts of social sciences. As marital rape is considered a gender-neutral concept worldwide but, Indian society has always been patriarchal from the very beginning because of which marital rape is generally not considered and accepted to be wrong in Indian society because major victims of marital rape are women in rather than men. There are very few voices in India that are consistently raising the prohibition and criminalization of marital rape in the country but are lacking behind in making people understand as they are so bonded with their cultural norms and still never want society to be ‘anti-patriarchal’ due to various factors. However, most modern people who are gaining quality education and have access to various facilities including technology might have a different point of view which can really make our social institutions rethink on the same.
RESEARCH METHODOLOGY
For our research paper, as I required people’s opinions, especially the youth, I surveyed the same. I prepared a questionnaire wherein I asked both open-ended and closed-ended questions so that we could get qualified answers from the youth. I tried to reach as many people as possible for our research so that we could get apprehensive knowledge about the point of view of as many people as possible. Keeping people’s privacy in mind, I gave them a disclaimer and promised to keep their email as confidential as possible. Furthermore, I used data taken by various other researchers from different institutions to analyze our materials and come up with a conclusion. This research has several limitations. First, the sample size is relatively small—a total of 78 responses were conducted. Second, most of my respondents are students at Delhi University so the findings may or may not apply in other universities or other institutions. Third, majority of my respondents are females so our findings may not talk about opinions from other respective genders. Any comparative research is beyond the scope of this research paper. Despite these limitations, however, this study provides valuable insight, not only into the everyday violence of women within the marriage but also tries to find out current societal trends and other socio-legal frameworks on the same.
REVIEW OF LITERATURE
Diverse viewpoints on the societal and legal ramifications of marital rape are offered by the literature on the subject. A thorough analysis of marital rape is provided by Bennice and Resick (2003), who also discuss the issue’s historical development and the interaction between research and practice. grasp the legal context of marital rape requires a solid grasp of legal vocabulary and concepts, which Black’s Law Dictionary (2019) offers. Gauba (2022) examines the question of whether marital rape belongs in the category of abuse or violence, offering a nuanced perspective to the conversation. In their critical analysis of marital rape in India, Yadav and Da (2021) highlight the social and legal issues. Singh (2021) considers how courts have criminalized marital rape while considering how laws have changed over time. Reflecting on the development of legal frameworks, Singh (2021) looks at judicial attempts to criminalize marital rape. The influence of marital rape on the institution of marriage is discussed by Singh and Singh (2016), as well as its stigma. In Sahodar’s (2023) critique of the misapplication of rape laws, Roy (2022) offers a statistical analysis of violence against women in India. Judge Agnes’s 2002 evaluation of legislation and the Supreme Court’s 2022 ruling offer valuable perspectives on the efficacy of legal improvements. Women’s perspectives on rape cases and sociological insights are provided by Baxi (2014) and Menon (2012), which enhances the conversation around marital rape. awareness of marital rape’s impact on young people requires an awareness of the societal stigma associated with it, as Kumar (2016) emphasizes.
FINDINGS
As Marital Rape is a form of rape committed by either of a spouse on the another without his or her consent, worldwide this concept is seen as gender-neutral, whereas when it comes to Indian perspective, we can see in general terms women are found to be its major victims and men are hardly seen in picture as victims. These days this term is considered as the most debatable topic in our society because marriage in our society is considered as a sacred union of two humans and on the other hand some people consider this as self-given consent for having sexual-intercourse, this means that in simple terms, after marriage a wife is husbands property and the latter can use her for his own pleasure anytime despite of knowing her emotional, physical and mental condition as well as her priorities for the same. We can see in our ancient texts that marriage was considered especially for attaining dharma, kama, and praja (progeny). The sense of sexual gratification was considered as an essential element in one’s marriage in order to sustain a healthy marriage and this was also meant for reproducing heirs in one’s family. Furthermore, in our culture, marriages are made in heaven and the sacred bond sustains till 7 further reincarnations. However, at the same time in the present world, we can see domestic outbreaks of violence on the same women with whom a man takes 7 vows in front of the holy fire. The amount of brutality that women face after their marriages are considered more than when they are unmarried in India.
We can look at the matter by using various sociological concepts in order to understand why the cases of Marital rape are increasing and what are the factors behind which make a spouse commit it? The concept of social imagination given by C. Wright Mills can help us understand the matter of concern. As per this concept, an increase in several cases not only tells us that women are brutally treated in their households after marriage, but the rising number also throws light on different factors. These numbers camouflage many unreported brutal outbreaks of violence of rape that were committed on women, though the number can be seen as low on data extracted the presence of crime was unreported to police and other official institutions of the society. This further sets up an alarming situation for the government and the judicial system to look into the matter as soon as possible and take action by seeing the matter. The public, on the other hand, at present doesn’t have clarity on what can be defined as rape and what can be considered as acceptable for seeking sexual pleasure. Lack of public awareness on differentiation of both the iotas creates social disruption at times and leads to bias when it comes to framing of judgements and laws for the same matter. However, there is a paradox as worldwide marital rape is considered gender-neutral and in India men are only seen as the perpetrators of this. Furthermore, many legal officials in India have supported their argument that marital rapes can be used by women as their weapon. Justice Sharad Kumar Sharma of Uttarakhand High Court, said in one of his remarks while quashing a criminal proceeding said the following:
“In fact, the offense under Section 376 of the IPC as of now in this modernized society is being misused as a weapon by the females to be mis utilized (sic), as soon as there arise certain differences between herself and her male counterpart, and rather it is being used as a weapon to duress upon the other side for several undisclosed factors, and it cannot be ruled out, that the provisions contained under Section 376 of the IPC are being rampantly misused by the females.”
This also shows that the number of rising cases of marital rape can be those reported by women falsely by using the privilege of lawful acts and provisions under different statutory legal documents in order to extract money and property from them. Moreover, people in society who are married and are committing this heinous act may also take support of the Rawlsian principle of self-respect which states that human beings should not be denied sexual intimacy. As per the basic document of functioning of law in India; the constitution, part III includes the Right to Life and liberty in Article 21 which also includes the inalienable right to sexual intimacy and freedom of expression, now, this can be concluded that expressing sexual desire freely with one’s spouse can also be held liable. This also shows us that even the basic doctrine has certain provisions that the perpetrators can use to defend their acts. Thus, strengthening their will to commit the act repeatedly or in simple words becoming recidivistic towards it.
Now, the responsibility of the youth comes forward which can help in generating public awareness in their houses, neighborhood and workplaces and clarifying out the term vividly for the people. To know what the youth of my area thinks about the term marital rape, and do they understand the brutality of such an act I surveyed the same. My survey aimed to know the young generation’s point of view, and do they think the judicial system should criminalize such a rape?
Here is the analysis of the same extracted data.
Here as been asked by the respondents about their familiarity with the concept of Marital rape out of which 94.9% of people knew about the same and the remaining 5.1% of people were unfamiliar with the term. This makes me conclude that the youth is aware of the term Marital rape. Furthermore, they are also familiar with the two different iotas perceived with it and know the intensity of the act.
But as I moved on further and asked about their view on considering sexual intercourse in marriage, I got mixed answers, and most of my respondents were neutral upon it (30.8%) but (29.2%) of my respondents agreed on the same as well. This means that my respondents who were majorly between the age of 16-25 admire the idea of ‘consent’ within the marriage as well because of which they consider sexual intercourse which is non-consensual as I made them aware of the legal definition of marital rape previously in our survey. On the other hand, 15.4% of my respondents disagreed with the same, this can be analyzed that society still considers marriage as the union for personal gratification as mentioned earlier.
Thirdly, I prioritized the idea of consent and asked my respondents whether the consent of women is necessary after marriage for intimacy. By analyzing the data, I got to know that 96.2% of my respondents consider the importance of the consent given by a married women to her husband. Heading towards the survey, I gave my respondents the best possible factors which can be seen in the occurrence of marital rape in Indian households to know about their opinion on the factor which can be considered the most.
The results for the same said that the patriarchy which can be seen in the society can be considered one of the best possible factors of committing marital rape (70.5%). Also, dependence on illicit substances and stress and disturbed emotions are the factors that my respondents thought could be the prevalent factors. This not only helped me to know the present trends of the opinions of the youth for the same, but also, helped me to consider it to formulate laws and initiate its criminalization in India.
The above data extracted tells us that 89.7% of my respondents are not in favor of the justification of section 375 of the Indian Penal Code which talks about rape. Section 375 of IPC only gives justice to the victim who is under the age of fifteen years of age and ignores the fact that the laws made in 1860 are not logically applicable due to the modernization and evolution of the societal norms and forms of crimes.
By giving instances of criminalization of Marital Rape in different countries of the world including those who have influenced the Indian legal system, I tried to get the opinion of my respondents on the same by keeping in mind the essence of the matter still lies in the hands of the Hon’ble Supreme Court of India. This was asked just to know youths’ opinion on the same and 87.2% of my respondents agreed on the need for criminalization of Marital rape in India as soon as possible. Proceeding to it, I tried to get responses on the barriers to which victims of marital rape are constrained and don’t complain about this act to anyone. My respondents were given a set of possible constraints by us to analyze them and answer any extra constraint which they feel could be possible freely in other sections added by me for the same reason.
70.5% of my respondents chose fear of losing one’s marriage and the same percentage thought fear of bringing shame from the society to one’s own family can be a possible reason why many women who suffer marital rape do not complain about it. This shows that society in general still lives in a sense of saving and maintaining the respect of one’s family and tries the best possible ways for its consistency due to this the people who suffer from brutal domestic acts of violence in their households behind the walls are taught from their childhood to maintain it even after suffering from harsh treatment that ultimately would hinder ones physical, emotional, and mental wellbeing.
SUGGESTIONS
Legal acknowledgment and public censure for marital rape are still inadequate, despite growing awareness and advocacy. There is a substantial legal protection gap for victims because of the societal belief that marriage gives partners implied sexual rights. To effectively address marital rape in India, a comprehensive strategy that incorporates effective tactics from other nations determines successful strategies to stop marital rape by looking at the laws and customs of nations like the United States, Sweden, the United Kingdom, and the Netherlands. Strong legislative frameworks, widespread public awareness campaigns, victim support programs, and societal reform activities have all been put into place in these countries. More effective marital rape prevention and response may be possible if these techniques are integrated and adjusted for the Indian context. In case of United States of America, every state in the union has made marital rape a crime; there is no exception for married couples. The idea that permission is necessary regardless of marital status is strengthened by this legal position. Many law enforcement training institutions are set up to guarantee that victims receive the proper assistance and justice, law enforcement personnel undergo specialized training on how to handle instances of marital rape sensitively and efficiently. Specialized Support Services in the case of the United Kingdom assist survivors of marital rape with specialized assistance such as secure housing, legal help, and therapy. Additionally, victims can use private helplines to get instant support and assistance. A similar kind of approach can be seen in the Netherlands, integrated services guarantee that the survivors receive full care, including mental health counseling, legal help, and medical attention. India on the other hand can adopt such a concerted effort involving legal changes, public awareness campaigns, educational initiatives, victim assistance programs, cultural transformation, and research needed to combat marital rape. Furthermore, India can create a comprehensive strategy to address and prevent marital rape that ensures women’s empowerment and safety within the context of marriage by using lessons from other nations that have found success with similar programs.
CONCLUSION
By summing up everything, I conclude that young social beings are aware of the brutality of Marital Rape and its rising cases in India. Marriage is an institution in which the element of personal gratification is part of maintaining a healthy and joyful marriage. The right of consent is an alienable right that is given to women by the Constitution of India and after marriage, both spouses must take it. Focusing on the structure of the evolved post-modern Indian society, the lack of awareness in the public about how heinous this crime is is still a matter of great concern. Most of the people who are old enough and are married consider that one cannot term intimacy within the marriage as ‘rape’. Though, many of our fellow nations have understood the concept of Marital rape in their states and their governments and judiciary have effectively trialed it and formulated laws, India, on the other hand, should have such discussions and consensus on a large scale, so that laws of our nation can be reformed as per the needs of our society. The level of tolerance and acceptance of our society is changing and so do our laws need to be with time. We should not ignore the fact that there are still many voices that remain silent due to various constraints that forbid them from coming out of their niche and speaking about the atrocities that they suffer within their houses. The Government should plan out techniques through which these voices can be heard, and perpetrators of such acts should realize the brutality of their acts. Therefore, the matter lies in the hands of social institutions to initiate laws and further amend formal sanctions which are old enough and are seen as inapplicable according to the needs of the Indian society. In the end, a socially sensitized judge is better statutory armor against gender outrage, than long clauses of complex sections with all the protections written into them.
CITATIONS
- Jennifer A. Bennice & Patricia A. Resick, Marital Rape: History, Research, and Practice, 4 Trauma, Violence & Abuse 228 (2003).
- Henry Campbell Black & Joseph R. Nolan, Black’s Law Dictionary (11th ed. 2019).
- Col. Chanjeet Gauba, Marital Rape (Is It Violence or Abuse by the Spouse), Sushant Univ. Blog (July 1, 2022).
- Dr. Raj Kumar Yadav & Manish Da, Marital Rape in India: A Critical Study, SSRN Electronic Journal (2021), doi:10.2139/ssrn.3847118.
- Na, Survey on Marital Rape in India, accessed October 10, 2023, https://www.surveymonkey.com/r/8Z6Q2NS.
- Vijay P. Singh, Judicial Approaches to Criminalization to Marital Rape, 29 Indian J. Gender Stud. 1 (2021).
- Rashmi Singh & Dr. Pooja Singh, Marital Rape: A Stigma on the Institution of Marriage, 7 Int’l J. Mgmt. Sociology & Humanity 3 (2016), doi
- Sahodar, Review of Rape Law Misused as a Weapon by Women in Modern Society: Uttarakhand High Court, Sahodar (July 21, 2023).
- Esha Roy, 30% Women in India Subjected to Physical, Sexual Violence: NFHS, The Indian Express (May 8, 2022).
- Web Desk, Supreme Court’s Judgment on Marital Rape: What Has Been the Discussion So Far, Outlook (September 29, 2022),
- Flavia Agnes, Protecting Women Against Violence? Review of a Decade of Legislation, 1980-89, 27 Econ. & Pol. Wkly. 19 (2002).
- Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (2014).
- Neha Kumar, Social Stigma and Marital Rape: A Sociological Perspective, 31 J. Fam. Violence 407 (2016).
- Nivedita Menon, Seeing Like a Feminist (2012).
HANSIN KAPOOR
O.P JINDAL GLOBAL UNIVERSITY