An Irony in the name of Marital Rape
“When men are oppressed, it’s a tragedy. When women are oppressed, it’s tradition”
-by Letty Cottin Progrebin
The world talks about equality, women empowerment, feminism but what about the question concerning the safety of our womenfolk? Every person has the right to live with respect, dignity and integrity in a society. Quite often this patriarchal society strips the women bare of these rights just so that it could establish that men are superior to women. The outlook that males are the dominant sex have given rise to many crimes against women like domestic violence, workplace harassment, rape, etc.
Rape is a heinous crime which means when a man has sexual intercourse or involves in any sexual act with a woman without her consent and against her will. This is a criminal offence under Section 375 of the Indian Penal Code, 1860. However, there is an exception that if a man has sexual intercourse with his own wife, who is above 15 years of age, it would not amount to rape which is ironically called marital rape. Does this mean marriage is the license to have sex?
According to the latest National Health and Family Survey (NFHS-4) for 2015-16, 5.4% women have experienced marital rape. Even though, data for marital rape exists but the Indian government refuses to acknowledge it as a crime. This lacuna detriments the situation of married women as they lack support from the government to seek help against their abusive partners.
Legal standing of marital rape
The problem of women being the victim to sexual abuse or sexual violence at the hands of their spouses has been omnipresent and yet the law makers in India refuse to penalize marital rape. This quite evidently states the fact that there is no definite and concrete law for protecting women against this.
An Act was formulated namely, Protection of Women against Domestic Violence, 2005(Act No. 43 of 2005, w.e.f. 26-10-2006) for protecting women against physical, mental, economic and sexual abuse. In Explanation-I of Section 3 of this Act it is given that “sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. Even though marital rape has not been criminalized, but sexual abuse by a husband on his wife is considered as domestic violence. So, Protection of Women against Domestic Violence Act, 2005, forbids domestic violence as well as marital rape but it only provides a civil remedy for it.
The only criminal remedy offered for marital rape is under Section 498A of the Indian Penal Code, 1860, which deals with cruelty done to a married woman by her husband or his relatives. Still, a lot of legislative progress is required in this regard.
Criminalization of marital rape is a matter of grave importance. Rape is a crime and providing a rapist an immunity just because of his marital status with the victim is inappropriate.
Comparing the NCRB and NFHS data in 2005, just 5.8 per cent of rapes by men other than the woman’s husband were reported to the police, and just 0.6 per cent of rapes by the husband. These staggering figures are self-explanatory, despite the present laws, women are still suffering behind the doors unaware or reluctant to approach the authorities for help.
The Judicial Justification
The Law Commission of India, in its 172nd report felt the need to add on some changes in the rape laws of the country. This report was based on the case of Sakshi v. Union of India, wherein it was pleaded that the sexual acts of the husband with his own wife without her consent should amount to an offence under Section 375 of IPC. However, the report did not make suggestions to criminalize marital rape.
Justice J.S. Verma Committee in its report recommended to criminalize marital rape. This committee looked in the case of C.R v. UK, wherein the European Commission on Human Rights stated that a rapist must always be considered as a rapist and rape must be considered as rape no matter in what form or manner it takes place regardless of his relationship with the victim.
Moreover, when the case was presented before the Delhi High Court, the government cited two reasons against criminalizing marital rape. Firstly, that marriage is a sacred institution in India and criminalizing marital rape would destabilize the society. The other reason is that, if criminalized, a huge number of fraudulent cases may be filed against husbands.
These assumptions of the government and other orthodox institutions need to be clarified. Marriage is considered as a sacrament then how being ambivalent towards the heinous crimes perpetrated towards married women is acceptable? Secondly, every crime encounter filing of fraudulent cases, but this defense only raises its head when it comes to gendered laws that specially concern women.
Perspective of the society
Equal status of women in the society is just a façade to put on a front that says we are a progressive nation. In the Indian culture, women have always been considered as a possession who are considered to be owned firstly by their fathers and later by their husbands. If we trace this back to our history, where rape was measured as a property crime against a husband or a father whose wife or daughter was defiled. Based on this outline, marital rape was an oxymoron since a wife was legally a husband’s sexual property or a mere object of sex.
It is quite ironic that rape is considered as an offence on the basis of the marital status of the woman. As far as the definition is concerned, the consent and the will of the woman is taken into account. But the argument that rape to a wife may not be rape in the eyes of others is questionable.
Also, equality is an ideal that we have wrongly believed to have conquered. It is often said that men belittle women and are the hurdles in their way to glory and a respectful life but it is actually the mentality, the patriarchal mindset of the society that are the problems. All of us have been brought up in the same society and in some or the other way we have been taught that men are stronger and are meant to protect the honor of women. Not only men but women as well are prey to this redundant belief. One can only aspire for change when one is willing to change for good. For equality to be a fact woman have to believe that they are equal to men in every way.
The situation has become so gruesome that no matter how heinous the crime is, that has been done against a woman, it does not shock us anymore. Many countries have come forward and acknowledged marital rape as a penalized crime. Women in India are not spared of this cruelty and torture, they need a sense of security so as not to feel helpless and at the mercy of their husbands.
 The National Health and Family Survey. Available at: https://thewire.in/gender/indian-law-denies-marital-rape-exists-5-4-married-indians-claim-victims
 Protection of Women against Domestic Violence Act, 2005 (Act No. 43 of 2005, w.e.f. 26-10-2006)
 Rukmini S., Marital and other rapes grossly under-reported, The Hindu (May 23, 2016 16:31 IST). Available at: https://www.thehindu.com/news/national/marital-and-other-rapes-grossly-underreported/article6524794.ece
 2004 (5) SCC 518
 C.R. v UK Publ. ECHR
Author: Khushi Mittal,
JEMTEC, SCHOOL OF LAW OF 2ND Year / BBALLB