Shattering the Myth: Marital Rape is a Crime

What is Rape? 

Rape is an act that involves forcing someone to have sexual intercourse against their will. Section 63 of BNS (Bharatiya Nyaya Sanhita) defines rape and categories various actions tags constitute this offense ranging from penetration with body parts or objects to manipulation causing penetration, all under specific circumstances outlined in seven descriptions. 

What is marital rape? 

Marital rape is an act of forcing one’s spouse to engage in sexual intercourse against their will. It is an issue that long been stigmatized. Marital rape is a manifestation of domestic violence. The idea was due to the deeply-rooted patriarchy in the world that needs to be changed in today’s world. The government should aim to protect the bodily autonomy of all women irrespective of whether they are married or not. The argument that it would destroy the institution of marriage is not a reasonable contention. When a woman at home is not being treated with dignity and respect that moment only, the failure of the marital relation reflects. The state should enter into the realm of home and bring the most atrocious crime under the purview of state laws. The license given to the husband for forced sex is a total negation of a woman’s self-worth. Therefore, there is a muchneeded reform for criminalizing marital rape in India to protect women’s integrity and dignity in India 

Violation of Fundamental Human Rights under Marital rape 

The act of marital rape violates multiple human rights, they are as follows: 

1. Article 14 – Right to Equality

Marital rape is a gender based violence. It perpetuates the belief that the women’s are property of their husbands. 

2. Article 19 – Freedom of speech and expression
3. Article 21 – Right to life and personal liberty

Everyone has right to live free from violence. Article 21 guarantees the protection of life and liberty. The right to life is not restricted to mere animal existence but also includes the right to live with dignity (Maneka Gandhi Case). Marital rape violates a host of rights as referred to in Article 21, such as the right to privacy, right to bodily self-determination, right to live with dignity, and right to good health. In several judgments, the SC has held that the offence of rape violates the right to live with the human dignity of the victim of the crime. In Bodhisattwa Gautamv. Subhra Chakraborty (1995), the SC said that “Rape is thus not only a crime against the person of a woman, but it is also a crime against the entire society. It destroys the whole psychology of a woman and pushes her into deep emotional crises.” and hence it is violative of Article 21 of the Constitution. 

It denies the agency over their own bodies to womens. Every individual has the right to control their own body and make decisions about what happens to it.

Causes of marital rape 

1. Dominance

When discord between the spouses increase, the husband may try to assert himself by forcing himself upon the women. 

2. Sexual dissonance between the couple

Sometimes, the woman may not be interested in sex for reasons that are clear only to her and may refuse her husband. Men are generally more oversexed than women are. So when the man is denied sex, he treats it as an insult to his manhood.” In a bid to overcome the humiliation of sexual rejection, will force himself upon the wife.

3. Economic dependency over her husband and in-laws

This is one of the reasons that womens are unable to protect themselves from frequent practice. 

4. Wide spread gender inequality prevailing in our society.

It is another aspect of our patriarchal and male-dominated system of social norms where women either married or un-married do not have equal rights in any which way. 

5. Role traditionally assigned to married women in our society.

The role as defined by society to married women is of pati-vratastri means pure, faithful and obliging women. Thus, a married woman is supposed to follow her husband’s directions fully and fulfill all his demands without any questioning. So the notion of ‘good wife’ is not good for women but for men only. Sexual relationship has been considered as an important part of married woman’s duty towards her husband and she is not supposed to deny that to him. Her role must be of submission and surrender. 

6. Stereotypes

Stereotypes about women and sex, such as the idea that women enjoy forced sex, can lead men to believe they should ignore a woman’s protests. 

Is relationship of marriage a defence? 

European commission of Human Rights in C.R. V U.K. endorsed the conclusion that a rapist remains a rapist regardless of the relationship with the victim. The exemption for Marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. 

According to the common law of converture, a wife was deemed to have concented at the time of the marriage to have intercourse with her husband at his whim. Moreover the consent could not be revolved.

The report of justice JS Verma committee said that marriage or any other intimate relationship between man and a woman is “not a valid” defence against sexual crimes like rape. 

The committee recommended that the law ought to specify that a marital or other relationship with the perpetrator or victim is not a valid defence against the crime of rape or sexual violation. 

The committee also prescribed that the “relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape. 

Reasons cited for not criminalizing marital rape 

An antiquated British philosophy served as the foundation for the non-criminalization of marital rape. A wife has little rights and is not a full legal person under the common law system. “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover she performs everything; and is therefore called in our law-French a femecovert,” according to Sir William Blackstone, who defined the doctrine of coverture.

Consequently, In accordance with the doctrine of coverture, a woman was legally regarded as her husband’s property. She had no legal authority to appear in court, sign contracts, or do business, and any property she may have owned before to marriage passed to her husband on her wedding day. This theory has a significant impact on the idea of marital rape, emphasizing how a woman’s identity is merged with her husband’s. When women were not viewed as a distinct entity from men, provisions pertaining to rape offenses were drafted. The patriarchal established dogma, which did not acknowledge men and women as equals, is the foundation of the rape standards.

“It is against the Indian culture” 

“I don’t think it should be regarded as an offense in India,” stated Dipak Mishra, the former Chief Justice of India, in reference to marital rape. It will bring complete chaos in many families in the villages, and the family platform, which supports family values, is what keeps our nation afloat. He added that before making marital rape a crime, issues like poverty, illiteracy, the mindset of society, the lack of financial empowerment of most women, and the great variety must be taken into account. He maintained that those who mindlessly adhere to western traditions need to realize that India is not yet prepared to make marital rape a crime due to cultural and socioeconomic disparities between the two areas. The fear of marriage falling apart in India makes the government reluctant to criminalize marital rape. 

However, the Supreme Court stated in Independent Though v. Union of India that criminalizing marital rape would undoubtedly not undermine the institution of marriage if divorce and legal separation cannot. The Gujarat High Court ruled in Nimesh bhai Bharat bhai Desai vs. State Of Gujarat (2018) that marital rape betrays faith and confidence in the marriage, harming the institution of marriage.

2. Women’s perpetual implied consent after marriage

Deeply ingrained patriarchal thinking underlies the idea of continual implied consent. It began in the eighteenth century, when women were viewed as their husbands’ property. However, the clause discriminates against women in the twenty-first century. Whether or not they are married, women should have the right to physical integrity and autonomy.

3. Women might misuse the law on marital rape against men

The legislature feels that making marital rape a crime will provide women with a simple means of bothering their spouses. Women will falsely accuse their husbands of any sexual conduct between them; women alone have the authority to decide whether or not it is marital rape. Even though some women may abuse the law, it is the judiciary’s responsibility to identify false cases and punish them appropriately. The government has redirected the unfairness from protecting women to the abuser, who is being portrayed as the victim of a false report.

Reference(S):

Marital Rape in India/https://www.drishtiias.com/(last visited Sept. 18, 2024) 

Marital Rape India much needed reform/https://blog.ipleaders.in/(last visited Sept. 18, 2024) 

Marriage-intimate  relationship-not  a  defence for rape-justice-j-s-

verma/https://m.economictimes.com/(last visited Sept. 19, 2024) 

Marital rape-what are its causes and implications/https://www.thehealthsite.com/(last visited Sept. 20, 2024)