• Stambh Organization

MARITAL RAPE:  A CRIME


ABSTRACT

Marital rape is a serious societal issue not criminalised in our country. This not only violates

the rights of woman but also affect their right to live with dignity and respect. Our

constitution provides provisions and rights to protect women from any injustice but it does

not recognise marital rape as a crime. India is focusing on the protection and prevention of

crimes against women but fails to protect married women. There is a need for the

criminalization of this crime. Women are subject to humiliation by men, rape is the best

example of atrocities committed against the dignity of women. Women are treated as an

object and every day they are being assaulted and disrespected. The research paper provides an overview of constitutional provisions and the importance of criminalizing marital rape.

KEYWORDS:   Rape, consent, criminalised, spouse, woman rights.


INTRODUCTION

“The day will come when men will recognise woman as his peer, not only at the fireside but

in the council of the nation .then, and not until then will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race”.

                                                                -Susan B. Anthony

Marriage is a sacred union between a man and woman but not a licence to rape. Consent from both partners is a necessary element that  maintains the sacred nature of marriage with dignity and respect. Men are not the owner of women body. They must respect each other decisions and privacy. Exchange of vows does not mean that they get the right to owns anyone body and seizes her right to say no.

In India women are considered inferior to men and their conditions are getting worse.

Women in India are subject to criminal atrocities such as rape, domestic violence, sexual

harassment, human trafficking and forced prostitution .

 


DEFINITION OF MARITAL RAPE

Marital rape also known as spousal rape or inmate partner rape is the act of sexual intercourse done forcefully by the spouse without the consent of other spouse. NON CONSENSUAL SEXUAL INTERCOURSE WITH A WOMAN  . The lack of consent is the main element in this offence . India have not criminalised  marital rape and   is one of the only 36 countries where marital rape is not the crime .the sexual intercourse with her by accused would not constitutes offence of rape even if it was by force or against wishes . Although there are many amendments and provisions for the protection of woman .The non –criminalization of marital rape in India undermines the dignity and human rights of women .

Marriage gives a right to husband and wife to lawfully consummate their marriage . But not

permits a man to forcefully have sex with his wife . It must be consensual and not an

obligation of the wife .

Rape is an unlawful sexual activity carried out forcefully or under threat of injury , against

the will of the victim .If the consent of the woman is obtained by coercion or causing

grievous hurt or death it will also called rape . Rape is defined under Section 375 of Indian

penal code and punishment of rape is defined under section 376 of Indian penal

code   . Exception 2 of section 375 exempts unwilling sexual intercourse between a husband

and wife over 15 years of age and immunize such acts from prosecution .

“Section 375 violates the rights of the married women, who are victims of rape, to

be treated equally with their husbands and with other victims of the same offence.”

Causes of marital rape

  1.         A dominating husband tries to enhance his status over his wife. he uses his weapon to

degrade her and force her to do that what he wants from her without the wife will

  •       when a woman denies sexual intercourse the man takes an insult to his manhood

  •      Illiteracy is one of the reasons causing marital rape.


WHEN RAPE IS ALLOWED BY LAW

  •   Treating a wife body as something owing to husband and committing a sexual act against her will is nothing but marital rape.

  •    More than two-thirds of married women in India aged 15 to 49  beaten, forced

  • to provide sex, regardless of their socio-economic position ( As per UN Population Fund)

  •   1 in 5 men forced his wife or partner to have sex  ( as per international men and gender equality survey 2011)   Over 104 countries across the world have criminalised marital rape.

  •   Marital rape a ground for divorce

  •   The Kerela high court in a significant judgement upheld marital rape as a good ground to claim divorce 

  •    A husband licentious disposition disregarding the autonomy of the wife is marital rape albeit such conduct cannot be penalised it falls in the frame of physical and mental cruelty.

  •   A spouse in a marriage has a choice, a choice not to suffer which is guaranteed under natural law and the constitution.

 

Why is marital rape still not recognised as a crime

  • The Justice Verma committee suggested marital rape should be made an offence.

Rape should be categorised in two -  rape within marriage and outside marriage. The

exception to marital marriage must be removed.


  •  United nations convention on the elimination of all forms of discrimination against

women: proposed that marital rape criminalization is an infringement of law of equality and

human dignity.

  •   It is against Indian culture stated by CJI Dipak Mishra  marital rape should not be made

crime in India as it is part of western culture and the fear of marriages falling apart

stopping the government from criminalising marital rape.

  • Devipoojak Mukeshkumar ... vs State Of Gujarat  the husband of a girl child between

15 and 18 years of age has blanket liberty and freedom to have non-consensual sexual

intercourse with his wife and he would not be punishable for rape under IPC since such non-

consensual sexual intercourse is not rape for the purposes of Section 375 IPC.

  •  The crime in India 2019 report of the national crime records bureau was difficult .

according to the report woman raped every 16 min. in India

  •  National family health survey 2015-2016 shows 99.1 % of sexual violence cases are not

reported

  •   Independent thought v. Union of India Supreme court states that criminalising

will  destroy the institution of marriage

once married women perpetual consent is implied .the law must bodily uphold the bodily

autonomy of all the women irrespective of their marital status.

  • Women can misuse the law and can accuse their husband and can become a easy tool to

harass the husband

  • Multiple petitions have been filed in various courts across the country

to criminalise marital rape. Unfortunately, none of them have reaped any benefit yet.

Both the judiciary as well as the government is divided in their approach to tackle the

issue. The High Courts of different states have given differing verdicts leading to utter

confusion. For example, in August this year, the High Court of Chhattisgarh observed

that sexual intercourse or any sexual act by a husband  would not constitute rape even


if it was forcible or against the consent of a legally wedded wife. The Kerala High

Court upheld a family court’s decision to allow divorce on the grounds of marital rape

because it forms physical and mental cruelty.

  • The judiciary has not played any active role on this issue. The government seems to

have turned a deaf ear in the name of culture or the matter falling in the private

domain. A Rajya Sabha member declared that ‘the concept of marital rape, as

understood internationally, cannot be suitably applied in the Indian context due to

various factors — e.g. level of illiteracy, poverty,  social customs and values, religious

beliefs, mindset of society to treat marriage as a sacrament…’ According to many

members, recognising marital rape would lead to ‘ interference with marital

relationship’ which has the potential of destroying the institution of marriage,

which is sacred in India. Most recently, in 2018, a private Bill introduced by Congress

MP Shashi Tharoor in the Lok Sabha, sought to criminalize marital rape, among other

rights. However, it lapsed after the failure to garner support from the elected. Multiple

petitions have been filed in various courts across the country to criminalise marital

rape. Unfortunately, none of them have reaped any benefit yet.

 


Marital rape a ground for divorce

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental

and physical injury that causes danger to life, limb and health. The intangible acts of cruelty

through mental torture are not judged upon one single act but series of incidents. Certain

instances like the food being denied, continuous ill-treatment and abuses to acquire dowry,

perverse sexual act etc included under cruelty.

Cruelty defined in the black law dictionary is the intention and malicious infliction of mental

or physical suffering on a living creature , especially a human.

Cruelty is a ground to claim divorce under Section 13 of the Hindu marriage act and section

27 of Special marriage act, granting divorce on the ground of physical and mental cruelty is

valid and it led to solemnizing of the marriage. The law cannot force a spouse to suffer

against the IR will by refusing to grant a divorce. Forcing for sex also amounts to cruelty.

In case:  X   V. Y

A bench of Justice A.Muhamed Mustaque and Justice Kauseeer Edappagath

Kerala high court ruled that although marital rape is not a criminal offence in India but a

good ground for divorce.

Observed that “A HUSBAND LICENTIOUS DIPOSITION DISREGARDING THE

AUTONOMY IF WIFE IS MARITAL RAPE, ALBEIT SUCH CONDUCT CANNOT BE

PENALISED IT FALLS IN THE FRAME OG PHYSICAL AND MENTAL CRUELTY ”

Law does not recognise marital rape under penal law , it does not inhibit the court from

recognising the same as a form of cruelty to grant divorce .

 

Marital rape outside India

In India, marital rape exists de facto but not de jure. While in other countries either the

legislature has criminalized marital rape, or the judiciary has played an active role in

recognizing it as an offence, in India however, the judiciary seems to be operating at cross-

purposes.

  • The highest punishment for marital rape is of  15 years of imprisonment in Austria which was criminalised in 1979.

  •  In 1994, Finland criminalized and proscribed punishment upto 4 years; and if violence has been committed on a married woman then the punishment provided is more severe.

  • Jordan: a husband who has committed marital rape on his wife shall be punished with at least 10 years of rigorous imprisonment. 

  •  Ireland: it removed marital rape exemption from Irish criminal law.


  •  Germany: in 1947, the exemption was removed through an amendment.

  •  Dominican republic: criminalized spousal rape in 1997.

  •   US: marital rape has been criminalized.

  •  Israel: In 1980, the decision of the Supreme Court of Israel criminalised marital rape. It is considered a felony crime, with punishment up to 16 years or 20 years.


Marital rape:  Against legal and Constitutional rights

RIGHT TO LIVE WITH HUMAN DIGNITY

ARTICLE 21 includes right to live with human dignity and all includes all minimum

essentials of life  adequate nutrition , clothing  and shelter

Francis Corallie Muin v. Union territory of Delhi

An offence of rape violates right to life and right to live with human dignity of victim of

crime of rape .

RIGHT TO SEXUAL PRIVACY

Right of privacy  included under article 21 of the constitution

Kharak Singh v. State of U.P

Right to privacy ensured in article 21  incorporates a right to be allowed to sit unbothered and aggravated . the exclusion of marital rape damage the wedded lady entitlement to protection by driving her to go into sexual relationship without wanting to .

RIGHT TO BODILY SELF - DETERMINATION

Sexual relationship is the individual right of a woman and is a self- expression and self -

assurance . Right to make choices as regard to intimate relation

Justice K.S. Puttuswamy v. Union of India

The supreme court recognise the right to privacy includes women have decisional privacy on

intimate relation . forced sexual relation is violation of fundamental right .

ARTICLE 14  of the Indian constitution the state shall not deny to any person equality before

law and equal protection of law with in the territories of India .in India married women is not

considered as separate legal entity she is considered to be the part of her husband and she

does not get her independent rights

Although the constitution guarantee equality to all but it discriminates against married

women by denying them equal protection from rape and sexual harassment.

Right to sexual autonomy Jaideep Bhaanushankar Verma v. Union of India

The Gujarat high court issued plea challenging the constitutionality of exception 2 which

exempts a man to rape his wife if she is not under 15 years of age

SECTION 375 OF IPC exception 2 is arbitrary , unreasonable and violate of ARTICLE

14,15,19 &21 of constitution of India. Doctrine of coverture is incompatible with Indian

constitution which treats women as equal to men .

Pradeep Tomar  And Another vs State Of U.P. And Another

girl child has no recourse to law under the provisions of IPC notwithstanding that

the marital rape could degrade and humiliate her, destroy her entire psychology pushing her

into a deep emotional crisis and dwarf and destroy her whole personality and degrade her

very soul. However, such a victim could prosecute the rapist under the POCSO Act.

Legal provisions  


Section 498A of Indian penal code defines Husband or relative of husband of a woman

subjecting her to cruelty .Women being subject to cruelty by her husband or relatives of her

husband shall be imprisoned for up to 3 years and also liable to pay fine

(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit

suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)

of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any

person related to her to meet any unlawful demand for any property or valuable security or is

on account of failure by her or any person related to her to meet such demand.

 

Domestic Violence Act 2005 – this recognise forced sexual abuse punishable. Any act in

which women are forced to perform sexual activity without their consent and desire are

punishable .it aims to protect women from violence by a man.

Conclusion

The duty of safeguarding women rights is not confined to the judiciary; it must be imbibed in

the collective conscience of the nation.

About 70 % of the wives in India are suffering from sexual violence, women seems to be a

property . Before she get married , a women is her father property and then after her marriage she belongs to her husband . Women seems to have no agency , autonomy or even personhood of her own . She has no desire of her own . Criminalizing this offence is

necessary to protect the women of our society from bodily and metal abuse and providing

them a dignified and respectful life .


References

https://www.livelaw.in/

https://Indiankanoon.org/doc/623254/

https://www.Indiatoday.in/opinion-columns/story/marital-rape-marriage-cannot-mean-

irrevocable-implied-consent-1846631-2021-08-29

https://www.theleaflet.in/only-36-countries-have-not-criminalised-marital-rape-India-is-one-

of-them/

https://www.advocatekhoj.com/library/lawareas/divorceinIndia/7.php?Title=Grounds%20for

%20Divorce%20in%20India

https://lawbeat.in/top-stories/marital-rape-though-not-penal-form-cruelty-good-ground-grant-

divorce-kerala-high-court


About The Author

Mitali Upadhyay

Student of  Kumaun University BBA.LLB

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