Marital Rape in India

If you are married and sexual intercourse is being done with you without your consent, even then it’s not rape~ Still a status in India!

Introduction

Marriage is a sacred union bringing two distinct individuals together for a lifetime. It is a union of souls coming together and binding each other with matrimonial obligation. One of the essential elements of marriage is considered cohabitation. However, with this beautiful relationship, some critical issues are attached, such as marital rape happening everywhere, but listen very little! Marital rape is one of those inhumane crimes that is against women most commonly prevalent in all nations, societies, cultures, and where not! The term rape carries with itself the label of crime, so adding a prefix, i.e., marital, would not change its character. The amount of atrociousness the term rape carries is impliedly carried by marital rape. The marriage is a pure bond of trust and love, but some narrow-minded people consider it a license to rape. The need of the hour is to address this problem with immediate effect.  

Meaning

Rape is a barbaric act of sexual intercourse committed against a person against their consent. Marital rape is a heinous type of rape committed by a husband on his wife without her consent. The term marital rape cannot be defined as such in concrete terms. Marital rape is a deemed form of sexual and domestic abuse and violence. Marital/spousal rape is the most heinous, barbaric act of sexual intercourse committed against the wife by her husband without his consent. 

History/ background 

Historically, India was a patriarchal society with very conservative thinking, considering men as the dominant ones as they were the sole earning members in the society and were given more respect irrespective of men’s character.

• Before marriage, the daughter was considered property of the father.
• After marriage, the women were considered sexual property of the husband.

Any act of rape was considered damage to the father or the husband and not to the dignity of women or purity of women. It was considered, and even still in some societies, that a wife is the property of the husband, and he can use her in any way he wants to, and it was expected from her to just surrender herself to his men and do whatever he says without denying him. One forgets that a rapist will be a rapist irrespective of the fact relationship he shared with the victim. India is a country full of values where marriage is given a supreme position. It is considered a sacred union, and on the other hand, by lowering the prestige of women by committing an immoral act, the sanctity of this union is destroyed at the core level.

People should regard the fact that marital rape is a deadly evil that needs to be addressed at any cost. It should be considered that by not criminalizing marital rape, we are categorizing rape as good rape and bad rape.

Doctrine of Coverture 

According to this doctrine, women have no individual legal personality or character after their marriage. The wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked.

Laws Dealing with Marital rape in India

In India, we don’t have any specific legislation enacted dealing with marital rape because it is still not criminalized in India and it is treated under the cloud of domestic violence and sexual abuse.

The Domestic Violence Act, 2005^[1], provides for civil remedies in cases of marital rape, which is considered domestic violence or sexual abuse, but in India there is no way for rape marital victims to initiate criminal proceedings against the one who did. The only remedy provided by the act is to ask for judicial separation by the court. The point to be considered is whether this remedy is enough. One should not forget that justice should not be done but seen to be done.

Further, the woman can recourse to Section 498A^[2]of the Indian Penal Code and now Sec. 85^[3]of Bharatiya Nyaya Sanhita, through which she can file a suit for cruelty. Treating marital rape just as a form of cruelty raises the suspicion that marital rape is only equivalent to cruelty or it amounts to something more.

The only protection is given to married woman under the age of 15 years if sexual intercourse is committed without the consent of the wife by her husband as provided in Sec. 375(2)^[4],  Indian Penal Code 1860, and now Sec. 63(2)^[5] of Bharatiya Nyaya Sanhita deals with the same.

Any act that is clearly violating the basic fundamental rights of a person i.e., Article 14^[6] and Article 21^[7], which form the backbone of the Indian Constitution irrespective of the gender the person holds, requires a strict action on the part of both the legislature and judiciary.

Independent thought vs. Union of India^[8]; in this case, an NGO filed a petition challenging Sec. 375(2). Age factor under exception Sec. 375(2) increased from 15 to 18 years, but it didn’t consider married women victimized by marital rape. 

More than 100 countries have declared it criminalized, but sadly, India is one of those 36 countries that is still waiting!

Why in the news!? 

The central government has gone against criminalizing marital rape to the Supreme Court, stating that it needs a more “comprehend approach” than the “strict approach.”

In 2022, the Karnataka High Court allowed a trial against a husband for rape, holding that the marital rape exception was an “age-old…regressive” concept. “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the High Court had said.^[9]

In addition, the applications were sent to the Supreme Court of India in an attempt to amend the legislation on marital rape following a split decision rendered by the Delhi High Court in 2022. The Indian government has informed the Supreme Court that criminalizing marital rape would be “excessively harsh.” The main contention raised by the Indian Government is that they recognize that the husband does not have any fundamental right to violate the consent of his wife. But, considering the crime in the same bracket of ‘rape’ as the institution of marriage, considered to be excessively harsh. Further, it is argued by the Indian government that there are already sufficient legal protections provided to married women against sexual and domestic violence. ^[10]

National Family Health Survey (NFHS)

As per NFHS-5, 5% of Indian married women who faced sexual violence identified their husbands/former husbands as the perpetrators. The disturbing situation is that over 90% of those who were victims of sexual violence did not seek help from anyone. 

As per the data, 18% of married women in India said they cannot say ‘no’ to their husbands even if they do not want to have sexual intercourse. About 20% of husbands said they would get angry and reprimand their wives for refusing to have sex, while about 13% said they would refuse financial support. ¹¹

Justice Verma Committee

The Justice Verma Committee suggested criminalizing marital rape, but the Standing Committee of the Parliament opined that if we criminalized marital rape, the family system of India would come under stress. Married women in India who are victims of sexual abuse have not received justice from the criminal justice system since marital rape was regarded as a private family affair.

Arguments in favor of criminalizing marital rape in India

• Violation of Article 14: The marital rape is considered to violate Article 14 of the Indian Constitution, which provides the right to equality, and the marital rape discriminates between married and unmarried women. The males who are married are free to do marital rape on their wives and treat them the way they like. This clearly gives the idea that the right to equality of women is in grave danger.
• Violation of Article 21: Article 21 of the Indian Constitution provides for the right to life and liberty as per the procedure established by law. Marital rape prima facia violates the married woman’s right to live with dignity. Also, the right to autonomy is violated under Article 21.
• Bridging the Gap and Flows: with the criminalization of marital rape, the various loops in the legal system could be corrected and the gap can be filled.
• Healthy and Smooth Marital Relationships: With the introduction of proper laws against marital rape, the marital relationship between husband and wife would be based on more trust, respect, and love towards each other.
• Strong Foundation of Society: Marriage is considered the basis of society. With the introduction of proper laws against marital rape, a healthy family environment can be created, which will in turn help to build a great society.

Arguments against criminalizing marital rape in India 

• Breakdown of Family Values: Some critics of the criminalization of marital rape argue that it will lead to the breakdown of traditional family values by interfering with the sanctity and purity of marriage and family life.
• Harassing the spouse: Criminalization of marital rape may lead to unnecessary harassment of the spouse and will pave the way for baseless and false accusations, resulting from motives such as divorce proceedings, the feeling of revenge, etc:
• Harm to Cultural and Religious Sentiments: Some critics argue that criminalizing marital rape interferes with cultural and religious practices that uphold the belief that husbands have authority over their wives’ bodies within marriage.

Conclusion and Suggestions

It can be concluded that marital rape is a dreadful threat to our society, and it needs to be eliminated at any cost. A woman’s body is her own; she is the one who has the sole right to that, and if she says no, then that should mean ‘No’. The old concept of treating women as property should be changed. The present legislative framework dealing with the problem is not enough. The necessary legislation should be passed to curb the same. The main focus should be on educating the society so that their perception in regards to marital rape is changed. Instead of treating women as property, the focus should be on providing them equal status to that of men. The rights given to women should not remain in books and statutes; rather, they should be given a meaningful effect.

Some recommendations which can be suggested to curb the menace are as follows:

• Firstly, the exception clause of Sec. 375(2) of the Indian Penal Code, and now Sec. 63(2) of the Bharatiya Nyaya Sanhita, 2023 should be removed in regard to the age restriction imposed on married women. By removing the age restriction barrier, this heinous crime should be criminalized as a whole.
• A marital or other relationship between the accused or victim should not be a valid defence against rape or sexual violence.
• Every coin has two sides, and if we keep on looking on the positive side, favouring decriminalizing then we cannot get a solution. Instead, our focus should be on providing Training and awareness programs so that people’s inner consciousness is developed and they themselves discard this evil from society.
• Also, the India Government should rely upon Prof. Sandra Fredman of the University of Oxford^[11], who has provided that training and awareness programs should be there at all levels of the criminal justice system, and ordinary people should be made aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife.
• The legislature should provide sufficient safeguards while criminalizing marital rape, as malicious prosecution is rampant these days. It should be kept in mind that no one should be allowed to take advantage of their own acts. One who seeks justice has a larger duty on their shoulders, i.e., they should come with clean hands.

Reference(s):

[1] Protection of Women from Domestic Violence Act,2005.  

[2] Indian Penal Code,1860 Sec. 498 A

[3] Bhartiya Nyaya Sanhita,2023 Sec. 85

[4] Indian Penal Code,1860 Sec. 375(2)

[5] Bhartiya Nyaya Sanhita,2023 Sec. 63(2)

[6] India Const. art 14 

[7] India Const. art 21 

[8] Independent Thought vs Union of India AIR 2017 SUPREME COURT 4904  

[9] Ananthakrishnan G Centre argues against labeling marital rape as ‘rape,’ says it is ‘disproportionate’ and ‘harsh, The Indian Express (Oct 4, 2024, 07:25 IST), https://indianexpress.com/article/india/centre-sc-criminalisingmarital-rape-9602198/#:~:text=In%202022%2C%20the%20Karnataka%20HC,the%20High%20Court%20had%20said.

[10] Arshad R. Zargar, India’s government formally opposes bid to criminalize marital rape, CBS News (Oct 4, 2024, 8:47 a.m.), https://www.cbsnews.com/news/india-rape-in-marriage-government-opposes-update-law/. ¹¹ 25th May, 2022 https://iasscore.in/data–story/data–story–nfhs–5–on–sexual–violence

[11] JS Verma Committee, 3 Jan 2013,

https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf