Marital Rape in India

This Blog is written By Miss. Khushboo Rathore Student of Rajasthan School Of Law For Women, Jaipur, Rajasthan

Introduction

“He pushes me on the bed and jumps on me if making love to him was not an option but an obligation”

                                                                     ~ Simar Singh (The Legal Rapist) 

It’s 2020, And we all feel that as the years pass India is progressing and developing a lot and it’s absolutely true that with time India is progressing and developing a lot. But so far no action is being taken for some specific things in India, no Rules or Acts are being made. And Marital Rape is one of them. India remains one of 36 countries where it is not a crime. Most countries in the world recognize Marital Rape is rape and that rape is a crime. So, what’s holding India, a burgeoning ‘superpower’ back?  Why it’s still legal for Indian men to Rape their Wives? Why are Indian laws still confused about this?

The question that is most often raised is “What is a Marital Rape”? To explain what marital rape is in a single way, Marital Rape (which is also known as spousal rape in Marriage), it is the Act of sexual intercourse with one’s spouse without the spouse consent or in simple way forcefully having sex with your partner without their consent which is considered as Rape even if you are married.

Section 375 & 376 of the Indian Penal Code

Section 375 of Indian Penal Code  –  Section 375 of IPC defines RAPE as “ sexual intercourse with a women against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.

Section 376 of Indian Penal Code – Section 376 of IPC is Punishment for rape

(1)   Whoever , except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend imprisonment for life, and shall also be liable to fine.

Section 375 and Section 376 of Indian Penal Code defines that rape is an offense and there is punishment for this. So, both Sections are related to RAPE.

But Shockingly, MARITAL RAPE is not seen as a type of RAPE. There is an exception to Section 375 of IPC and the exception is:-  “Sexual intercourse by a man with his own wife who is above the age of 18, is not sexual assault”. and it shows that Rape is a crime or offense in India but Marital Rape is not considered an offense or crime in India. Why this law is not being made for women?

Violation of fundamental rights of women

Marital Rape is a term which is used to describe the forceful sexual act committed by the husband without the wife’s consent. This forceful act violates the basic fundamental rights of women in our country:-

(1)   Right to life – The right to life which is a fundamental right under Article 21 states that “ no person shall be denied of his life and personal liberty except according to the procedure established by law ”[1] is violated by raping the women.

(2)   Right to equality – Right to equality which is a fundamental right under Article 14 “ The state shall not deny to any person equality before the law or equal protection of laws within the territory of India”[2] is violated when Marital Rape is not considered as a type of rape

(3)   Right to privacy – The right to privacy which is also a fundamental right, as it is an intrinsic part of the right to life and personal liberty under article 21 and as a part of the freedoms guaranteed by Part III of the Indian Constitution, The right to privacy is violated when the husband is not considerate of the wife’s personal space and does not take her ‘no’ into consideration.

Cases of marital rape

Case:- Independent Thought v. Union of India[3]                                                                             

The Supreme Court in this case held that sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.

And this decision of the Supreme court considered the exception of section 375 of the Indian penal code.

CASE:- State of West Bengal v. Anwar Ali Sarkar[4]

The apex court stated that if classification is done under Article 14, it should have reasonable nexus to the objective which any Act wants to achieve but here exception 2 of the section 375 goes against the very purpose of the act which is meant for protection of women from the inhuman act of rape. As there is no reasonable nexus, thus the exception 2 of article 375 clearly violates Article 14 of the Indian constitution.

CASE:- State of Maharashtra v. Madhukar Narayan[5]

The Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished.

Arguments

There are many arguments which are given against the criminalization of marital rape some of them are mentioned below:-

1)      Women will misuse any law against marital rape

The union government in an affidavit submitted to the Delhi High Court said that a law criminalizing marital rape can become an “easy tool to harass the husbands”,

2)      When man is married to a woman, women give implied consent to the man for sexual intercourse.

3)      It will create a burden for the already overburdened legal system of India.

4)       Criminalization of marital rape can be proved disastrous for marriages.

Because of these arguments and due to the old thinking of society, no law has been made on Marital rape yet. not only the society even the government does not want to make any changes regarding this topic. As we saw in argument one that the government said that women will misuse the laws it became an easy tool to harass the husbands, the same arguments have been used again and again for various domestic violence laws enacted to protect women in India including the Protection of Women from Domestic Violence Act, The Dowry Prohibition Act. Thus not only society awakening is necessary but also judicial awakening or governmental awakening is also necessary.

Conclusion

Marital Rape is not completely criminalized in India. Marital Rape is truly high, there is obviously a dire requirement for the criminalization of the offense of marital rape. There are so many laws in the Indian constitution for women but there is no law for this rape, for this awakening of society, government and judicial awakening is necessary.

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[1] Indian Constitution Article 21

[2] Indian Constitution Article 14

[3] AIR 2017

[4] AIR 1952 SC 284

[5] AIR 1991 SC 207