A Critical Study on Marital Rape

Introduction: 

We live in a world where the knowledge of every person is improving day by day, but this time let’s see the lack of sensible knowledge. Many societies do not even understand its meaning; they think it’s an absurd idea or if you are married, how can it be rape? This is an old regressive way of looking things up. Unfortunately, many legal systems are stuck, including India’s. Domestic violence is a pervasive issue in India, and it has only gotten worse in recent years. According to the National Family Health Service (NFHS), Report of 2019-21, 29.3% married women of aged 18-49 years had experienced spousal violence; 3.9% married women of aged 18-49 years have experienced physical violence during pregnancy and 1.5% young women of age 18-29 years experienced sexual violence by age 18. Further, there was a 30% increase in complaints of crimes against women in 2021 compared to 2020, with marital rape, being the most common example of such violence. Since the second half of the twentieth century, the issue of sexual and domestic violence within marriage and the family unit, and violence against women, has received increasing international attention. According to the World Bank, more than 100 countries have made rape, including spousal rape, a crime, but about 32 countries, including India, have yet to do so.

History: 

In Babylonia in 1900 BCE, a person was sentenced to death if he had sexual relations with anyone else’s wife or daughter. A daughter or wife was thought to be the property of a father or husband, and previously rape was thought to be a property crime against the father and husband, and thus the husband would not rape his wife because it is his property and he can do whatever he wants with which was described by Sir Matthew Hale in the History of the Pleas of Crown which is an influential treatise on the criminal law of England and The Doctrine of Coverture in the English Common Law. By the 17th and 18th centuries when the British empire was established in India the rape laws were introduced by the Britishers who considered rape as a crime against women. The background for introducing these laws by the belief that they violated the sexual purity of a woman and women were judged based on their sexual priority in this era.  Thus, it’s believed that how his husband can deteriorate her sexual priority, and the responsibility of a woman is given on the contrary to her husband, or her father meant, to that as they can’t save themselves. In Indian Society, if some girls are annoyed with all this and inform their parents or husband’s parents about the issues, they also say that it’s their right. That’s the mentality of societies in India.

What is marital rape and relevant sections under IPC?

• Marital rape refers to sexual intercourse or any sexual act that is forced upon one spouse by the other without consent. It occurs within the confines of a marriage or similar intimate relationship.
• According to Section 375 of the Indian Penal Code (IPC) in sexual offences, rape is defined as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or at a time when she is intoxicated, duped, or of unsound mind, and in any case if she is under the age of 18 years. However, exception 2 of this section states that non-consensual intercourse or sexual act by a man with his wife at the age of 15 is rape thus, no man is guilty of raping his wife if she is over the age of 15 and has given her matrimonial consent. 

Exploring the necessity of criminalizing the marital rape

• Rights of Women

1. As exception 2 of section 375 of IPC violates Article 14 (right to equal treatment by law), Article 19 (freedom of speech and expression), and the Right to Autonomy of women under Article 21 (right to life and personal liberty)[1] of the Indian constitution which was observed in the case of Independent thought[2].
2. The Protection of Women from Domestic Violence Act, 2005, also fails to recognize marital rape as a crime but it considers a form of domestic violence, under this if any women encounter marital rape she can opt for judicial separation as well as divorce[3]. The lack of legal recognition of marital rape leaves women who experience sexual violence from their husbands with no legal recourse.

• Cultural and Social Attributes

1. It also does the disparity in the society it protects the wife till 18 years from then the law shut and seen as an inconsequential idea that can be attributed to the cultural and social attitudes that exist in the country. The belief that a husband has the right to compel sex from his wife, regardless of her inclinations, is reinforced by the patriarchal aspect of Indian culture, where males are viewed as superior to women.
2. Women are expected to be seen as submissive and obedient to their husbands, and any refusal to have sex is seen as a breach of their duties as a wife.
3. Regarding rural locations, the study notes that women have problems at a rate of 34% in these areas as opposed to 27% in urban areas. Marital rape occurs primarily in rural areas since most rural women lack education, are unaware of their rights, and adhere to long-standing customs and traditions, such as always serving their husbands. Additionally, they face social stigma because their husbands are viewed as gods and are the object of their possession, so they must serve them whenever they please.
4. In Indian Society, the concept of marital rape is exist as de facto and if some women are annoyed with all this and inform their parents or husband’s parents about the issues, they also say that it’s their right. That’s the mentality of societies in India.

• Addressing Prevailing Health Concerns

1. The nonconsensual intercourse by the husband with their wife in the form of mental abuse, psychological, social, spiritual, and emotional abuse which affects their mental health, physical health, sexual health etc. which leads to trauma, suicide, emotionless, anxiety, shock etc.
2. It dehumanises and degrades the victim, and whether the victim is a young or defenceless innocent kid, it leaves a traumatic experience in its wake. This trauma not only results in physical harm but also marries a woman’s most prized status, her honour, reputation, virginity, and dignity.

Arguments and consequences averse to the criminalization of marital rape

• As in India, the marriage between two partners can be seen as a sacrament, a legally socially and socially sanctioned union, customs beliefs, laws etc. and it exists in its purest form after marriage there is implied consent between partners related to their life. Some communities may hold cultural beliefs that make reporting marital rape difficult.
• Disgruntled, irate, and vindictive women who wish to exact revenge on their husbands or relatives may file false reports of rape and assault.
• It has been challenging for the judiciary to verify the initial claim that the couple’s sexual interactions were consenting or nonconsensual or it can be seen as to destroy many relationships or marriages in society.

Judicial Interpretations and Case Law Surrounding Marital Rape

• In terms of case history, the Queen Empress v. Hurree Mohun Mythee, commonly referred to as the Phulmoni Dasi rape case, was the first instance of a husband raping his 11-year-old wife. She passed away later. Following this, on January 9, 1891, Viceroy of India Lord Lansdowne introduced the “Age of Consent” law, which stated that having intercourse with a girl less than 12 is considered rape regardless of whether she is the wife.
• The concept of “consent” is crucial in the context of rape, according to the 84^th Law Commission Report, published in 1980. However, much concern was not raised regarding marital rape, as it was stated that “the marital union is technically in place, and the husband cannot be charged with the crime of rape if he has sexual relations with her even against her will or consent.
• In 2012, following the Nirbhaya Case, Justice J S Verma Committee recommended changes to the Criminal Law, stating that the exception to section 375 of the IPC should be removed to make marital rape a crime and that marriage should not be interpreted as an irreversible consent to sexual acts.
• The court lowered the age from fifteen to eighteen years old in Independent Thoughts v. Union of India (2017), ruling that “sexual intercourse or sexual intercourse by a man with his own wife, not being under eighteen years of age, is not rape.” The court also declared that this judgement would have a prospective effect.
• As of right now, on July 19, 2023, the Apex Court of India has decided to list the pleadings to criminalise marital rape in response to petitions that were aimed at the Delhi High Court judgement from 2022, which stated to strike down the exception of 375 of the Indian Penal Code, and the Kerala High Court judgement, which stated that “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”[4] make the marital rape as ground for divorce under cruelty. Nonetheless, the Kerala Government, citing the Justice J. S. Verma Committee report, concurs with the Kerala High Court’s ruling.
• In addition, a 2021 ruling by Justice N K Chandravanshi of the Chhattisgarh High Court held that a husband’s sexual relations with his lawfully married wife are not considered rape, even if they are forced or nonconsensual. This ruling relied on the exception of section 375. However, in a recent ruling on December 17, 2023, the Gujarat High Court upheld the criminalization of marital rape, holding that rape is rape regardless of whether it is committed by a husband.

Conclusion and my point of view                  

In conclusion, I believe that everything that is negatively imposed tarnishes a person’s soul. I condemn it, and it is a crime and a sin regardless of whether it is a rape or a marital rape. It is ridiculous to think that just because a woman is married, she has to forcefully fulfil her partner’s wants without getting her permission. I feel bad for guys who think they have a claim to a married woman’s soul. Our view has to shift. No, can’t not and should not be converted into okay.

References

(1980). 84th Law Commission Report. Law Commission of India.

Bhattacharyya, A. (n.d.). Marital Rape Laws: An International Overview. Retrieved from Legal Service India: https://www.legalserviceindia.com/legal/article-7872-marital-rape-laws-an-international-overview.html#:~:text=As%20per%20reports%2C%20Marital%20Rape,criminalised%20Marital%20Rape%20in%201994.

Chandra, I. (2022, November 17). WHY EXCEPTION II OF SECTION 375 OF THE INDIAN PENAL CODE NEEDS TO BE DECLARED UNCONSTITUTIONAL. Retrieved from Manupatra: https://articles.manupatra.com/article-details/WHY-EXCEPTION-II-OF-SECTION-375-OF-THE-INDIAN-PENAL-CODE-NEEDS-TO-BE-DECLARED-UNCONSTITUTIONAL

Desk, E. W. (2021, August 26). ‘Sexual intercourse by husband, not rape, even if by force’: Chhattisgarh HC. Retrieved from Indian Express: https://indianexpress.com/article/india/marital-rape-chhattisgarh-hc-section-377-7471940/

Independent Thought v. Union of India, 10 SCC 800 (Supreme Court October 11, 2017).

India, T. O. (2022, May 11). Nearly 1 in 3 women have suffered spousal sexual, physical v .. Retrieved from The Times of India: https://timesofindia.indiatimes.com/india/nearly-1-in-3-women-have-suffered-spousal-sexual-physical-violence-family-health-survey/articleshow/91491367.cms

Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., 4161 (Supreme Court 2017).

Justice Verma Committee Report Summary. (n.d.). Retrieved from Pre Legislative Research: https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary#:~:text=Under%20the%20IPC%20sexual%20intercourse,marital%20rape%20should%20be%20removed.

Phulmoni Dasi rape case. (n.d.). Retrieved from Wikipedia: https://en.wikipedia.org/wiki/Phulmoni_Dasi_rape_case

Queen Empress v. Hurree Mohun Mythee, ILR (1890) 18 Cal 49 (Calcutta HC July 26, 1890).

Rathore, B. (2022, July). Marital Rape Exception; Challenges and Arguments. Retrieved from SPRF: https://sprf.in/wp-content/uploads/2022/07/SPRF-2022_IB_Marital-Rape-Exceptions.pdf

Ritoprita. Ghosh. (n.d.). Marital Rape- Current legal scenario in India in comparison to the world. Retrieved from Legal Service India: https://www.legalserviceindia.com/legal/article-3759-marital-rape-current-legal-scenario-in-india-in-comparison-to-the-world.html

Singh, S. M. (n.d.). Marital Rape — Myth, Reality and Need for Criminalization. Retrieved from EBC: https://www.ebc-india.com/lawyer/articles/645.htm

Supreme Court agrees to list pleas to criminalise marital rape before a three-judge Bench. (2023, July 19). Retrieved from The Hindu: https://www.thehindu.com/news/national/three-judge-bench-to-hear-pleas-relating-to-criminalisation-of-marital-rape-supreme-court/article67097000.ece

Yadav, H. (2023, July 24). Crime Against Women. Retrieved from News18: https://www.news18.com/india/crime-against-women-30-increase-in-complaints-received-by-ncw-in-2022-half-of-them-from-up-8407525.html

 

[1] (Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., 2017)

[2] (Independent Thought v. Union of India, 2017)

[3] Kerala High Court Judgement, SCC Blog, https://www.scconline.com/blog/post/2021/08/10/marital-rape/, Visited on 18^th December. 2023 at 9:22 pm

[4] https://www.thehindu.com/news/national/three-judge-bench-to-hear-pleas-relating-to-criminalisation-of-marital-rape-supreme-court/article67097000.ece Last Visited on: 19^th December 2023 at 11: 38 pm