*Prajna Prachi, Student at Madhusudhan Law University, Odisha
Marriage and rapes are two different denominations of human society. In India, both marriage and rape cannot be in the same room.
Rape is one of the most barbaric crimes that exist in our society whereas, marriage is the most pious sacramental contract between two people willing to live together and spend the rest of their lives together. But what is the result when rape comes into a marriage, What if marriage becomes the license to rape? What if the spouse becomes the one who rapes, or forces the other spouse to have sex. How can we call sex after marriage as rape? They are married couples, they can have it anytime they want and none’s opinion matters But what matters is CONSENT. Consent does matter. Marriage should not be a license for a husband to forcibly rape his wife with impunity.
What is Martial rape?
Marital rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The main ingredient of marital rape is a lack of consent. Consent is absent as if it never matters whether the other spouse wants to have it now or not. Marital rape includes sexual acts that have intercourse, anal or oral sex, forced sexual behavior with other individuals, and other unwanted, painful, and humiliating sexual activities. So it is a term used to describe forcible or non-consensual sexual acts between spouses, ex-spouses, or long-term partners.
Marital rape is not a criminal offense in India unless it is in between couples during judicial separation. Exception 2 of section 375 of IPC states that sex with their wife unless she is under 15 years of age is not a crime. This exception has restricted application when the wife has been living separately from the husband, with or without a decree of judicial separation. In such cases, the husband can be prosecuted for rape. If convicted, the minimum punishment is imprisonment for two years and imposition of a fine (Section 376B, IPC.
What is rape?
Section 375 of IPC says about rape. Rape is a crime against a woman, her dignity, and her self-esteem. It takes place against the will of a woman or without her consent, forces himself upon her. According to section 375 of IPC rape falls under the following categories:
- Against will
- Without consent
- Even if with consent by putting her in a situation in fear of death or hurt
- By fraud, coercion, misrepresentation, and intoxicated
- Unsoundness of mental health or under 18 years of age.
Rape is considered a heinous and barbarous crime under IPC. India has very strict laws for rape but when it comes to marital rape it is not considered a crime in India.
India is amongst those 36 countries that are yet to recognize marital rape as a crime.
Marital rape is a serious violation of basic human rights. Here a woman is forced to have sex because she is married to him and owes her body to him for a lifetime. Many people cannot find any wrong with it, especially in India. Like they think “yes, you are the wife to whom he is married and you are expected to satisfy his sexual needs, anytime he needs it irrespective of your consent”.
The cases of domestic violence and sexual abuse reported in India every year are where women are the victims exclusively, the consent of the women is disrespected in these due actions.
Marital rape in Indian society:
In India, marriages are taken as sacred bonds between husbands and wives. The main objective of marriage is to enable a woman and a man to perform their religious duties.
About 70% of women in India are victims of Domestic violence. NCRB 2019 report says that marital rape is illegal in more than 100 countries but still not in India. Most cases of marital rapes in India are registered under domestic violence under section 498(A) and section 377 of( unnatural sex). The basic problem with Indian women facing marital rape is they do not talk about it and they do not consider this as a problem. Most cases go unreported, cases are being rarely registered.
Women stay quiet about the assault when young, but are willing to report it at a later stage. Lawyer Manisha Tulpule said that in many cases, women are in their forties fifties when they speak out about the kind of forced sex they have been facing maybe because marriages in India are not easy to get rid of and the societal stigma and judgments. And maybe some women don’t come because of the financial support they get from their husbands.
As India doesn’t have any legal definition of marital rape in its laws or statutes so it can be said as any unwanted intercourse, anal or oral obtained by force or when unable to give consent to the act by the victim.
Marital rape is criminalized in any country around the world such as Sweden, Norway, Denmark, Canada, the US, Poland, etc. But not in India and some other 35 countries because of their high illiteracy rate or their societal norms and the law and order system of that country affects it.
In a case of acting chief justice of Delhi High Court Gita Mittal and C. Hari said that in a marriage both man and woman have the right to say no to physical relations. Also in a recent judgment on January 2021, in the case of Pradeep Tomar and another v/s state of UP and another, here it was held that rape before or after marriage both are highly traumatic. India has rules in IPC for girl children below the age of 15 under sec 375 and is an offense under POCSO Act only. We can see the IPC gives marital rape law for small minor girls but what about adult women of India who face forced sex even to the age of 45-50. If the rapist is her husband the woman gets no recourse to the law under the provision of IPC as it does not recognize such forced penetrative sexual assault as rape or even equivalent to it. We should remember a rapist remains a rapist regardless of his relationship with the victim.
Laws in India :
About 70% of women in India are victims of domestic violence. NCRB 2019 report says that Marital Rape is illegal in more than 100 countries but still not in India.
According to the United Nations Population Fund -2000 statics say that about 1/3rd of Indian spouses had been forced into sex by their partners. When the criminal law was amended in 2013, Marital rape was not included under rape instead, It was included in sec-375.
India was under the British colony in the 19th century, so all the Indian laws enacted at that time were influenced by English laws. The Victorian partial norms did not recognize men and women as equals and did not allow married women to own property and merged their rights with her husband. But now in the 21st century, India has a separate legal identity of both husband and wife and modern law is more concerned with protecting women’s rights. Most women’s laws are concentrating on protecting women from violence and harassment.
Marital rape may not be a single independent law but it violates some law like Article 14 of the constitution is violated because it gives the right to equity if there is no equality as per consent is seen. Next would be Article 21 of the constitution that gives the right to life and personal liberty, but when someone is forced/abused on sexual consent it straight away takes away the right provided by the constitution. Intimate decisions like sexual consent lie under the privacy of a person and violation of that right would fall under violation of the right to privacy under Article 21 of the Indian constitution. Forced sexual cohabitation is a violation of the fundamental rights that are basic human rights.
By not considering Marital Rape as rape, they deny married women equal protection of the laws guaranteed by the Indian Constitution under Article-14. And section 375(exception) of IPC says “sexual intercourse by a man with his wife not being under the age of 15 is not rape”. It violates the basic human rights of women as it cannot guarantee safety, security, and freedom to make choices related to sexual activity. Rape should be considered as rape irrespective of the marital status and age of the woman, she may be a 3-year-old child, a 15-year-old girl, a 35-year-old lady, or a 65-year-old woman.
In India most victims of marital rape are women and they are mostly from rural areas with less literacy rate with gender inequality where the women are almost hesitant to report because they can be financially dependant on their husbands. Most women from backward society fear to complain about marital rape to their family members also neither can they protest.
What can be done to minimize this evil from society is to educate more and more people about this heinous act. People be made aware that marital rape is not illegal in India now but it is against humans, as humans, we have some laws of our own, we have a moral value that should stop a person from doing such acts. Also, serious punishments and fines if imposed then it may act as a carrier in minimizing marital rapes in society.
“Consent is given and not assumed”.
Many females are now opening up about rapes after marriage and the first thing they say is “if only marital rape was a topic people spoke about, they could have known that it is not okay if I don’t have consent”.
India has the largest democracy in the world with the longest constitution and still, some of its laws and order are affecting the lives of people adversely. The law and order of a country are affected by society and the people in it. We cannot simply blame a country’s name, the whole population is also responsible for its law and order and also the leaders that the people choose for them to rule. Thereupon the people should come forward to discuss this problem openly and realize the seriousness of the issue. And strict laws should be made that marriage does not validate rape.