The word rape is derived from the Latin term rapio, which mean ‘to seize’. Thus rape literally means a forcible seizure. It is forcible sexual intercourse with a women without her consent. Justice Krishna Iyer in the case of Rafiq v State of U.P made a remark that, ‘A murderer kills the body, but a rapist kills the soul. Rape is considered as one of the heinous crimes a person can commit. But it is a sad truth that the laws in our country ‘India’ allows a man to rape her lawfully married wife.

What is Marital Rape

Marital rape or spousal rape is a forceful sexual intercourse by one spouse on the other, without obtaining their consent. Here, the word ‘consent’ plays a very important role. If the sexual intercourse is done by one spouse on the other with their consent, then it does not amounts to Marital rape.

According to the Chief  Justice of England, Sir Mathew Hale, “the husband cannot be guilty of a rape committed by himself on his lawful wife for by their mutual matrimonial consent and contract the wife hath herself up in this kind unto her husband which she cannot retract.”

How Marital Rape affects a Women?

“I say nothing , not one word, from beginning to end, and neither does he. If it were lawful for a women to hate her husband, I would hate him as a rapist”-Philippa Gregory

From these words, the people can imagine how  much a women suffers due to marital rape. Marital Rape can cause both physical and psychological impacts on a female body.

Physical effects of marital rape on a women include injuries to the private areas, fatigue, vomiting, broken bones, black eyes, vaginal stretching , unwanted pregnancies, miscarriages, bladder infection, Sexually Transmitted Diseases and so on.

Psycological effects of marital rape on a woman include shock, anxiety, intense fear, depression, suicidal tendency, low confidence, low self esteem, deep self hatred and so on.

Marital Rape survivors are facing long-lasting consequences. Here, the perpetrator is a person whom the women has to live with forever; he is a person whom a women believes to be her great supporter in all her ups and down in life. So, if such a women is experiencing marital rape from such a trusted person i.e. her own husband, then it would be so difficult for a women to free from such mental trauma easily. It is a sad truth that majority of the women are going to bed with fear of being raped by their husbands.

There are cases where the husband has raped his wife when she was physically and mentally weak. These are the times when a women expects support from her husband, but being raped by her husband in such situations makes a women more weak, both physically as well as mentally.

So, it is high time for men to think about her wives condition too, instead of raping her, in order to satisfy his sexual desire for a short period of time.  Raping own wife in order to satisfy a short term sexual desire may lead to a long term mental effects in a women.

Criminalisation status of Marital Rape in India

The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. Therefore, Rape is a crime under section 375 of  IPC. But exception 2 of section 375 states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age is not rape. As a result of it, marital rape is not a crime under the Indian Penal Code,1860.

India is one among the 36 countries, which has not criminalised marital rape yet.

It is very pathetic to hear that in one of the rape cases, the judge asked the accused, “ Will you marry her? If you are willing to marry, we will consider this petition or else you will go to jail and lose your job”. How could a judge ask a rapist to marry the victim? Has he thought of her future before asking such a question? This question clearly shows that even the Indian law is in support of marital rape.

Justice Dipak Mishra pronounced that “marital rape should not be a crime because it will create absolute anarchy in many families. Our country is sustaining itself because of the family platforms which upholds family values.” Social practises and ethics creates such an environment where matrimonial rape cannot be criminalised.

At the time of marriage, the women gives an implied consent that she will be a sex-slave of her husband life long. The National Family Health Survey 2018 points out that 31% of married women have gone through physical, sexual or emotional violence at least once at hands of their spouse.

In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape. The JS Verma committee set up in the aftermath of nationwide protests over the 16 December 2012 gang rape case had also recommended the same. But these all recommendations were rejected. Later, a petition has been filed by the RIT foundation and three others to criminalize marital rape, they have challenged the validity of an exception 2 to section 375 of the IPC on the ground that it discriminated against women raped by their husbands.

Further, even if marital rape is criminalised in India, the number of marital rape cases may decrease due to the fear of punishment. But this is not our society wants. There should be a change in the mentality of man that wives are not their sex slaves, they have equal rights with that of the man. Marriage should be something more sacramental. There should not be any superiority of one spouse over the other in a marriage. If men starts thinking in this way, the society changes and the problems faced by a marital women decreases and we can make our country a better space for women to live.

It’s the duty of parents and teachers to teach their children or students from small age itself on the importance of respecting a women and make them understand the gender equality concept. If they does so, I hope the number of marital rape cases will decrease to an extent.

Why marital Rape should be criminalized?

1. As we all know, marital rape is against the will of wife.  A married life will be happy and successful only if both the spouses consented for a particular act and does it. In marital rape, one of the spouses is forcefully having sex without the consent of the other spouse. It also damages the self-respect and the wishes of a women.
2. It is violative of Article 14 i.e. Right to equality and Article 21 i.e Right to life and personal liberty of the Indian Constitution.

Violative of Article 14: Although the constitution guarantees equality to all, Indian criminal law discriminates against female victims who has been raped by their own husbands.

The exception of section 375 of IPC, discriminates women based on marital status. The law treats married women as a movable property of husband. In doing so, the exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.

.Violative of Article 21: Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law”. As a result, Exception 2 is violative of Article 21, as it fails to protect wives from forced sexual acts imposed by their husbands, constituting a detrimental effect on their physical and mental health as well as their right to live with dignity.

In the cases of The State of Karnataka v. Krishnappa and The Chairman, Railway Board v. Chandrima Das, it was held that rape is a crime against the basic postulates of human rights and is an unlawful intrusion onto the right to privacy and sanctity of a female as guaranteed under Article 21. So, forced sexual relation is a violation of the fundamental right under Article 21.

• Patriarchy : Law should be freed from the traditional framework of family, customs and patriarchy.

Why marital Rape should not be criminalized?

1. The parliamentary standing committee has once said that if marital rape was a crime, the family system will be under stress and it could lead to practical difficulties.
2. The government maintained that the concept of marital rape, as understood internationally, can’t be suitably applied in the indian context due to the illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat marriage as a sacrament.
3. Misuse of law : As we all know, there can’t be any direct evidence for rape, so the men’s rights activists are of the view that there is high chances of wives misusing this law in order to put their husbands in jail.

The above are the reasons why the marital rape should be and should not be criminalised in India.

In my opinion, mandatory basic legal education should be provided in schools, in order to make man understand about the rights of women, because, I hope, the reason why there is an increase in the number of marital rape cases, is due to lack awareness among the people. Both men and women should be aware of their rights. If men are aware of the rights of a women, then he never raises his voice against criminalizing marital rape.

Recent judgements related to marital rape in India

1. On 12 August 2021, the Mumbai City Additional Sessions Court, while hearing a petition filed by a wife against her husband and in- laws, held that there is no illegality in husband having intercourse with his wife against her wish.
2. On 26 August 2021, the Chhattisgarh High Court, in Dilip pandey & Ors v. State of Chhattisgarh, held that sexual act by a husband with their spouse would not constitute rape even if it was forcible or against the consent of a legally wedded wife.
3. On 6 August 2021, the Kerala High Court, while hearing one of the cases, held that marital rape amounts to cruelty and is a sufficient ground to claim divorce.

Conclusion

As a conclusion, I would like to point out my views that the Exception 2 under Section 375 of Indian penal code, should be removed and Marital Rape should be criminalized in India. Only women knows her pain, women should not be bound by social fear. I hope, raising the marriage age of girls from 18 to 21 makes each and every women economically independent. It is better not to continue the marital relationship if the husband doubts the wife that she  may file false cases against him. A Rapist is always a rapist, that does not mean that he can rape his wife. Law should not be stopped from criminalising marital rape with the doubt that there are chances of misusing of it.

It’s time for all the Indians to think why my country is included among those 36 countries which does not criminalize marital rape.

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Author: Ashna Alex

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