Marital Rape: Legal Lacunae and Need for Reform

Section 63 of the BNS[1] defines rape as acts such as forceful penetration, insertion, manipulation, or oral contact without the consent of the victim. All of these characteristics are met by marital rape, with the exception that it takes place in a married relationship. Non-consensual sexual relations within a marriage, or marital rape, is a serious human rights violation that frequently goes unpunished in many judicial systems. Marital rape is still stigmatized and has a long history, stemming from the archaic belief that a woman is her husband’s property. Legal systems in many nations continue to fail to sufficiently confront or prohibit this type of abuse, despite increased awareness, leaving many victims without access to justice. To guarantee that everyone is shielded from sexual violence, regardless of marital status, legislation regarding marital rape must be acknowledged and changed.

Marital rape can be divided into three groups according to a study that was conducted in 1985: battering rapes, involving situations in which the husband uses rape as a kind of physical abuse against women who already regularly experience it in order to establish dominance; Force-only rapes, which comprise just those cases in which the husband uses little force to obtain access to sexual relations; and, finally, obsessive rapes, which include the husband’s ludicrous and unusual requests for sexual relations[2]. In fact, the National Family Health Survey (NFHS), 2019-2021 reported that around 29.3 % of married Indian women between the ages of 18 and 49 had experienced domestic/sexual violence[3]. Martial rape also affects survivors’ aid-seeking behavior, which varies according to the culture in question. In New Zealand, almost 61% of victims reported getting help for sexual IPV (Intimate Partner Violence), 40% in Tanzania and Jordan, but just 24–26% in India, while only 2-4 victims reported requesting assistance from Indian authorities[4]. This incapacity of women to seek assistance and discuss the abuse has a detrimental effect on their mental as well as physical health. Marital rape can cause physical harm to one’s intimate organs, cuts, bruises, torn muscles, exhaustion, and vomiting. Other physical effects that might arise from being beaten and sexually assaulted by their husbands include fractured bones, black eyes, bloody noses, and knife wounds. Miscarriages, stillbirths, bladder infections, infertility, and the possible acquisition of sexually transmitted illnesses are among the specific gynecological effects of marital rape[5]. Among the immediate psychological consequences of marital rape are severe anxiety, sadness, suicidal thoughts, and post-traumatic stress disorder. Common long-term effects include eating disorders, depression, sleeplessness, trouble forming reliable relationships, and increased negative self-perception.  Years after the abuse, some survivors of marital rape describe experiencing emotional distress, sexual dysfunction, and flashbacks[6].

India as well as Thirty-six other nations still do not have laws against marital rape. In India, exception 2 of S.63 of BNS[7] provides an exemption from marital rape which states “Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape”. This gives men the legal justification and, in a way, the right to forcefully have sex with their spouses without being held accountable for rape. Section 9 of the HMA[8], which directs a woman to fulfill her marital obligations and cohabitate with her spouse, further strengthens this right by making it impossible for her to refrain from forced sexual relations given the present state of the marital rape exemption. Martial rape is so demeaning that it breaches some of the victims’ most fundamental human rights in addition to subjecting them to agonizing physical and psychological pain. The Indian Constitution’s most basic fundamental rights—the right to equality under Article 14 and the right to life and personal liberty provided by Article 21—are violated by the exemption for marital rape. According to Article 14[9], the state cannot deny equality before the law or equal protection of the laws to any person within India. However, it appears that exception 2 of section 63 of BNS violates and contravenes the marital rape exemption. The marital rape exemption creates a clear division between married and single women, providing them with two distinct levels of protection i.e. married women are not protected from spousal rape, while single women are protected from rape by any man according to the law. The exemption violates Article 14 since married women are not afforded the same protection against sexual abuse and rape as unmarried women. Furthermore, the exemption also violates Article 21[10] which states that no person can be deprived of their life or personal liberty except according to a procedure established by law. The Indian Supreme Court has affirmed in numerous rulings that an individual possesses the freedom to freely choose their personal relationships, that they should not be coerced into engaging in sexual activity, and that using force will be considered physical-sexual violence violating the right to live with human dignity. The notions of equality of rights and respect for human dignity are allegedly violated by this kind of discrimination against women, according to the “United Nations Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW), to which India is a signatory. The damaging misconception that marriage confers an automatic claim over a spouse’s body is perpetuated by these legal lacunae, harming women’s autonomy and dignity. The law disregards the requirement that permission be freely given in every sexual encounter, regardless of marital status, by not making marital rape a crime. Despite increasing advocacy from human rights organizations and recommendations from legal committees, marital rape remains a legally sanctioned act in India. This underscores the urgent need for reform to ensure that all individuals, including married women, are protected from sexual violence.

According to estimates released by the World Health Organization, around one in three (30%) women globally have experienced intimate partner abuse, either through physical or sexual means[11]. In India, the issue of marital rape is made worse by centuries of social conditioning and patriarchal cultural systems. Its roots are deeply ingrained in people’s societal conditioning, the prevalent belief that a woman is the possession of her husband, a lack of knowledge about consent, the dynamics of marital power, and the incapacity to view marriage as a partnership between equals rather than a male-dominated one. Future efforts must consider both preventive and curative methods in order to effectively address the problem of marital rape. Some preventive methods can be Comprehensive Sexuality Education (CSE)[12], Media, government advertisements, posters, etc. to sensitize young minds on the basic components of sex and related rights and issues. Regarding remedial measures, criminalizing and eliminating the legal basis for marital rape is the first step in providing impacted parties with a remedy. Legal reform is required to make marital rape an adequate cause of divorce, grant the victim of the crime the right to maintenance from the offender, and give the victim priority over taking care of the child. In addition, the offender must pay the child’s support in accordance with the applicable laws. To effectively address the issue of marital rape, all remedies must be pursued concurrently, with an emphasis on legal reform to ensure the formation of a right against the crime of marital rape. Education and media-based programs are essential to influence society and act as a deterrent to crime.

In conclusion, marital rape is a profound violation of human rights that continues to be overlooked by legal systems, particularly in countries like India. The legal gap of the failure to recognize marital rape as a crime not only undermines the autonomy and dignity of married women but also perpetuates harmful societal norms that condone violence within the sanctity of marriage. Criminalizing marital rape is not only necessary from a moral standpoint but also from a legal one. It would uphold the values that all relationships require permission, regardless of marital status, and that no type of sexual violence is acceptable. Reforms of this kind would enable women to stand up for their rights in marriage and challenge cultural norms that condone violence against women. In the end, closing this legal loophole is essential to building a more equal and just society in which everyone is safe from sexual assault.

Reference(s):

[1] Bharatiya Nyaya Sanhita, 2023.

[2] David Finkelhor and Kersti Yllo, License to Rape: Sexual Abuse of Wives (Free Press 1985).

[3] ‘Nearly 30% of married Indian women face domestic violence, shows data’ Business Standard (14 May 2023).

[4] M. Leonardsson and M. S. Sebastian, ‘Prevalence and predictors of help-seeking for women exposed to spousal violence in India – a cross-sectional study’ (2017) BMC <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5670508/> accessed 23 August 2024.

[5] R. Thornhill & C. T. Palmer, A Natural History of Rape — Biological Bases of Sexual Coercion (1st Edn., MIT Press Cambridge Mass., 2000).

[6] R. Thornhill & N. Thornhill, The Evolution of Psychological Pain, in Sociology and Social Science (Texas Tech University Press, 1989).

[7] Bharatiya Nyaya Sanhita, 2023.

[8] Hindu Marriage Act, 1955.

[9] Constitution of India, 1950.

[10] Constitution of India, 1950.

[11] Violence against women, World Health Organisation, <https://www.who.int/news-room/fact-sheets/detail/violence-against-women> accessed 27 August 28, 2024.

[12] Comprehensive Sexuality Education, World Health Organisation,<https://www.who.int/news-room/questions-and-answers/item/comprehensive-sexuality-education> accessed 27 August 2024.