Marriage is a sacramental union and it is a tie that can’t be untied latter. No, any relation is as pious as marriage. But this relationship is also tanning with the passage of time. Marital rape is one of the factors which really abuse the purity of this relationship. There is a passage in Manu Smriti which says, “I hold your hand for Saubhagya that you may grow old with your husband, you are given to me just, the creator, the wise and by the learned people”. With the following words of Manu Smriti, one can understand that the wife has to remain with the husband. She has to be obliged, faithful and silent whatever be the circumstances. The whole responsibility of holding the relationship relied upon the wife, the husband has no say in this regard.
Does marriage make husband eligible for doing rape? Does marriage mean the consent to do rape? Is vermillion becoming a signpost for doing marital rape?
It is a matter of concern, that while on one hand, India is celebrating some glorious decisions in the legal arena from the Hon’ble Supreme Court of India like landmark judgments in the matter of “the rights of the LGBT community” and ‘”Triple Talaq’ creating new cornerstones for the judiciary; on the other hand, to the general disappointment, the Central Government has given its view against criminalizing marital rape, saying doing so would ‘destabilize the marriage institution’.
As observed by Justice Arjit Pasayat:
“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”
The cases of marital rapes are increasing at a stringent rate and irony is that there is no definition of ‘Marital Rape’ till now. In India, where the wife is considered as “ardhangini” which means the husband is half without his wife. With the passage of time, this meaning gets changed and some people started considering wife as a body that can be used for doing sex only. In India, marital rape exists but there is no punishment for this if the age of wife is above 15 years of age. Thus, it can be concluded from the above fact that it exists de facto but not de jure. The marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage.
Meaning of Marital Rape
Marital rape is a term used to describe the sexual acts committed by the husband without the consent of his better half. It is outside the ambit of conviction. He may use force, threats to use force against her or another person, or implied harm based on prior assaults causing the women to fear that there would be any physical harm to her if she resists. It is such type of rape that is being holed up behind the hallowed drapes of marriage. Few researchers have concluded the fact that husband does this just to show their anger and to reinforce their dominance, control over the wife. Marital rape is also perceived as an infringement of human rights. Stereotypes regarding sex and women are that women enjoy forced sex, if she says “no” then it really means “yes” and it’s a wife’s duty to have sex continue to be reinforced in the culture. Such stereotypes mislead the men into believing that they should ignore the woman’s protest.
Types of Marital Rape-
Force only Rape- The term “Force only rape” clearly indicates that the husband uses threats and violence only to the degree necessary to coerce sex. It usually occurs in those relationships where violence is predominantly verbal, and/or in relationships where violence occurs only/ primarily in sexual intercourse.
Battering Rape- In this type of marital rape, beatings and rape are combined. Sexual abuse is a part of a general pattern of psychological, verbal, emotional, economic and physical abuse.
Obsessive Rape– In this, the abuser seems to be obsessed with sex, and the sexual act itself is violent.
Marital Rape and Laws in India
According to Exception 2 of Section 375, Indian Penal Code, 1860, the rape committed by the husband if the spouse is not being fifteen years of age is not rape. The punishment for the same is also very mild. The spouse can be criminally arraigned for this offence only in those situations when the wife is between 12-15 years of age.
In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which considers marital rape as a type of local violence. Under this Act, the wife can go to the court and get a legal partition on this ground. It is unexpected that a woman can ensure her entitlement to life and freedom, however not her body inside her marriage. It is the demand of the time that the very meaning of rape should be changed. The main resort for a woman so far is section 498-A of the IPC, managing remorselessness, to insure themselves against “unreasonable sexual direct by the spouse”.
Grey areas under the law
The present section is a violation of Article 14 of the Indian constitution which talks about equality before the law but on the other side, Indian criminal law discriminates against female victims who have been raped by their own husbands. During the drafting of the IPC, a married woman was not considered as an independent legal entity. The marital exception to IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms. These norms did not recognize men and women as equals, married women were not allowed to own property, and merged their identities under the “Doctrine of Coverture.”
Exception 2 creates a distinction between married and unmarried women, which also violates Article 14. In Budhan Choudhary v. the State of Bihar1 and State of West Bengal v. Anwar Ali 1 AIR (1955) SC 191 (India).
Sarkar,2 held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test and can be passed only if the classification has some rational nexus to the objective which aims to be achieved. But, exempting husband from punishment is contrary to the objective which purports be achieved by section 375. The consequences of rape are the same whether the victim is married or unmarried then the punishments should also be the same.
Violation of article 21- From its various judgements, the courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in Article 21. Right to life does not mean merely a right to exist but it means a right to have a dignified life. In The State of Karnataka v. Krishnappa,3 it was held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” Further, it was held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in the case of Suchita Srivastava v. Chandigarh Administration,4 the court had equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under the right to life and personal liberty.
Thus, from the above discussion, it can be concluded that Exception 2 to Section 375 of the IPC is a violation of both Articles 14 and 21 of the Constitution.
Arguments in favor of the legality of Marital Rape
1. Once married, perpetual consent is implied.
2. Women will misuse the law against Marital Rape.
3. If the law will be enacted in favor of the women then it would be against the Indian
Marital rape is like a scar on the most pious relationship called Marriage. Till now, there is no any ointment for this scar and this scar is making the relationship very ugly. The victim has to live with the aggressor and the dilemma is that the victims are not able to share all this with anyone due to our so-called society. Marital rape is a genuine type of offence which requires government’s consideration. There should be no difference between the accused of rape under section 375 and the accused of marital rape. Rape is rape and it must not matters that the rape has been done by whom. The punishment should not be mild for such an offence.
2 AIR (1952) SC 75 (India). 3 (2000) 4 SCC 75 (India). 4 (2008) 14 SCR 989 (India).
Author: Prity Kumari,
Central University of South Bihar