Marital Rape - An Institutionalized Crime
Author: LawSphereX
Category: Criminal Law
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MARITAL RAPE: AN INSTITUTIONALIZED CRIME
Kanan Joshi, Law College, Dehradun Gargi Pant, Law College, Dehradun
ABSTRACT
Marital rape, often overlooked or jarred, is a widely tolerated manifestation of violence within the context of marriage. Marital rape refers to nonconsensual sexual acts perpetrated by one spouse against another. Despite the growing recognition of women's rights in various countries, the Indian legal system disregards marital rape as a legal offense. The problem here lies in the Determination of consent of either of the spouses which needs to be continuous, but due to lack of education and awareness reluctance and discomfort are not given primal importance along with that patriarchal structures often normalize the unequal power dynamic within marriages, which leads to spousal entitlement where one holds absolute power over the other mostly leads to violation of the integrity of the spouse.
This form of sexual violence challenges the traditional notion that marriage implies automatic consent to sexual activity. This paper highlights the need to penalize marital rape and what might be the challenges that often stem from deeply ingrained societal norms which undermine the severity of such acts within marital relationships. The objective of this paper is to bring attention to the violation of women’s fundamental rights, specifically, those protected under Article 14, Article 19, and Article 21 these articles though guarantee every citizen's right to equality, freedom of speech, and expression and right to life and personal liberty but marital rape undermines the principle by assuming implied consent and degrades the woman to mere objects within marriage and negatively impacts their mental, emotional and physical wellbeing.
Despite these constitutional rights, India does not have specific laws criminalizing marital rape. Section 375 of the Indian Penal Code (IPC) penalizes forced sexual intercourse within marriage only if the wife is below
18 years of age. The absence of specific legislation criminalizing marital rape
in India is a significant concern and a barrier to upholding women’s fundamental rights within marital relationships. This paper will also provide a solution to address the need to adequately criminalize marital rape.
Introduction
Marriage, traditionally venerated as a sacred bond between two individuals, is often considered a sanctuary of trust, love, and mutual respect. However, within the walls of marital relations, a dark and trembling reality perseveres – one that shatters the illusion of peace and exposes the harsh reality of abuse within these relations. Marital rape is a form of sexual violence committed by one partner against another, it goes against the mutual respect, dignity, and integrity in a marriage. Despite its presence and impact, it remains a taboo masked under societal norms, legal complexities, and social stigmas. It involves the use of physical force, psychological manipulation, and emotional torture to compel a spouse into unwanted sexual activities completely sidelining their right to bodily integrity and dignity.
While marital rape has been recognized in various countries in the world, this issue remains prickly in various societal contexts. Rape in a marriage is an agonizing concept the dread of having to face your perpetrator with every passing day and letting him violate, humiliate and mutilate your body while silently bearing it takes a huge toll on the mental and psychological state of a women. The woman has been given ample of rights to protect herself from a perpetrator who’s a stranger, but when the violators is their own husband, who she married to in a pious ceremony, such protection is skipped In regions where patriarchal norms prevail, women many a times endure various atrocities in silence bound by societal expectations, economic dependency, and fear of social ostracism.
The consequences of marital rape go above and beyond physical scars, it also causes a huge impact on people’s psyche, relationships, and overall health. Survivors may be enclosed with feelings of shame, guilt, and self-blame. The research aims to explore the violation of women’s fundamental rights which are enshrined in the constitution of India. The right to life and liberty, freedom of speech and expression, and right to equality. Marital rape – An Insight The word rape generally gives an idea of a stranger, a malicious person. Mostly one does not think of rape in the context of marriage. Even the women might find it difficult to believe that their husbands can rape them. After all, how can a man rape his wife, if he is only availing his marital right?
While the legal definition differs, marital rape can be defined as any unwanted intercourse or penetration (vaginal, oral, or anal) obtained by force, threat, or manipulation. The word rape originates from the term ‘rapio’ which translates to “to seize”. Rape is the ultimate violation of a woman’s dignity. The Supreme Court pertinently pronounced marital rape as “deathless shame and a gravest crime against human dignity”. 1 The law didn’t theorize marital rape as an offense against the woman, it rather conceived rape as an apparatus to protect a man’s property from another man. Therefore, the act of rape within a marriage was never recognized as women were considered the property of the husband, and a man had the right to exercise unfettered rights over his property.
Marital rape is one of the most under-reported crimes, even the women who understand this concept are discouraged to report as they are economically dependent on their husbands, and reporting their husbands will leave them and their children in a difficult situation. There have been plenty of legislations passed in India regarding the abuse faced by women within the walls of their house for example dowry, cruelty, domestic violence, and female infanticide. Marital rape which greatly jeopardizes the dignity and integrity of the marriage has failed to gain recognition in the eyes of the legislature. Though we have evolved in various fields, we have yet to criminalize marital rape. The final version of section 375 is a manifested form of clause 39 of Macaulay’s draft.
Section 3752, the IPC echoes a very outdated exception clause where it criminalizes marital rape if the wife is under the age of 15 or is judicially separated from her husband. 3 The Protection of Wife from Domestic Violence Act, 2005 was passed which did not consider marital rape as a crime, it considers it a form of domestic violence. 4 Under this act, a woman who suffered from marital rape can appeal for judicial separation. The IPC has dealt with his form of rape in a very disorganized manner. The issues arise that consent given for marriage is equivalent to consent 1Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922 2 The section 375 of the Indian Penal Code (45 of 1860) reads: —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: — First.
— Against her will. Secondly. —Without her consent. Thirdly. — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. — With or without her consent, when she is under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 3 Indian Penal Code (45 of 1860), Section 376A. Intercourse by a man with his wife during separation. —Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine
4 The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1(ii).
given for sexual intercourse. But, implied consent to engage in sexual activity does not mean consent to being sexually violated. Marital Rape in Violation of the Constitution of India The constitution of India also considered the grundnorm of the nation reflects the core believes of the country. The constitution of India controls authorities, define their powers, ensures the compliance of fundamental rights and legal rights and balances the interests, cultures and operates as a torchbearer of development and unity. According to the constitution any law passed by the legislation has to be validated by the fundamental rights and the basic structure which are the core of the constitution, any law which doesnot crosses the threshold of the constitution is considered ultra vires and is eventually struck down by the courts and are declared unconstitutional.
Marital rape violates various fundamental rights guaranteed by the Constitution, specifically Articles 14, 21 and 19. Article 14 of the constitution guarantees the right to equality before the law and equal protection of laws to every citizen of India. 5 However, all citizens are not treated equally due to the classifications laid down by the Supreme Court which stated that the classification must be founded on intelligible differentia which distinguishes those that are grouped from others; and differentia must have a rational relation to the object sought to be achieved by legislation. 6 Marital rape encourages unequal power dynamics in a marriage, this unequal treatment contradicts the principle of equality in Article
14. Section 375 criminalizes rape but exempts married women from the definition, the
classification and different treatment of married women rests on the assumption that married women unlike unmarried women have no interest in receiving protection from the state against violent acts. The act takes away a woman’s right to make choices deprives her of her individuality and violates a woman’s right as mentioned in Article 19 and Article 21 of the constitution of India guarantees the right to life and personal liberty.7the case of Maneka Gandhi v. Union of India8 paved the way for the protection of human rights and liberty in a wider sense. In Munn. v. Illinois9 it was held that ‘life is more than mere animal existence’. Which was asserted by the Supreme Court in the case of Bandhua Mukti Morcha v. Union of India.10 The Supreme Court held that the offense of rape violates the right to life and dignity of
5 The Constitution of India, Article 14
6 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80
7 The Constitution of India, Article 21.
8 AIR 1978 SC 597.
9 94 US 113 (1877).
10 AIR 1984 SC 802, 811
the victim therefore, society must treat the victim with utmost respect rather than trampling on it. 11In the case of the State of Maharashtra v. Madhukar Narayan, it was held by the Supreme Court that every woman was entitled to sexual privacy and it was not possible for any person to violate her privacy12 in this case a prostitute was given the right to refuse for sexual intercourse. Rape within marriage and the exemption provided in the IPC violates the right to privacy of a married woman therefore, it is unconstitutional, many high courts in India are criminalizing marital rape. Suggestions Addressing marital rape in India requires a multi-layered approach that involves legal reforms, education, awareness campaigns, and a support system for survivors.
the problem is that marriage is sacrosanct in India which needs a deeper understanding of the social matters before implementing any policy. There should be a committee formed at the state as well as union level which should be mostly composed of women who shall conduct door-to-door surveys of the atrocities faced by women and whether they are educated about the concept of marital rape, after gathering the data they should form policies based on their research. Ensure easy access to legal aid and support services for survivors of marital rape. Establish mechanisms for survivors to obtain protection orders against their spouses to prevent further abuse. Incorporate education on consent, gender equality, and respectful relationships into school curriculums to instill values of mutual respect and consent from a young age.
Organize workshops and awareness campaigns in communities to challenge harmful gender norms and promote healthy relationships. Set up dedicated hotlines and helplines operated by trained professionals to offer immediate support and guidance to survivors.
11 Bodhisattwa Gautam v. Subhra Chakraborty AIR 1196 SC 922
12 AIR 1991 SC 207
Offer vocational training and skill development programs for survivors to increase their economic independence. Implementing these ideas requires collaboration between government agencies, societies, organizations, grass root movements, and other stakeholders to address the complex factors contributing to marital rape and create a society where every individual’s right to bodily autonomy and dignity is respected and protected. Conclusion In conclusion, addressing marital rape in India requires a comprehensive and harmonized approach that incorporates legal transformations, education, awareness campaigns, support services, empowerment initiatives, and engagement with different business holders or sponsors. The current legal structure must be reformed to explicitly criminalize marital rape and bring it under the ambit of section 375.
The question which arises is can the state enter in the private lives of couple? The answer is “yes” and it already has, in the case of dowry, domestic violence and divorce then treating marital rape as an exception does not seem reasonable. Not only minor wives but all wives regardless of the age should be included in section 375 of IPC. Given the circumstances, there is an urgent need for criminalization of marital rape, such changes should not only be legal or administrative but should also be social. Though women might feel secure under the Domestic Violence act, but it does not openly speak about rape within marriage. By implementing policies which are catered to these battered women will take India towards a society where marital rape and other crimes against women are condemned, survivors are supported and, and everybody’s fundamental rights are protected and upheld.
Such entrenched structures are not easy to uproot but with collective efforts and effective policies it can be achieved and such a future can be created where no individual suffers in silence. It is the need of the hour to protect a woman’s right, and how can India be a developed nation until the women of the country do not feel safe in the walls of their own house.