Marital Rape - Legal lacunae and need for reform

Published on 20th February 2025

Authored By: Isha Dhir

RIMT UNIVERSITY

INTRODUCTION

^[1]Intimate rape, also known as spousal rape, is a type of domestic violence and sexual assault that occurs within the boundaries of a marriage. It is defined as the forced sexual intercourse of a spouse without their consent, usually through physical violence, threats, or psychological manipulation. The research question for this article is: What is legal about the existing laws and regulations regarding marriage in India? These questions are at the heart of the debate over whether India’s marriage laws and policies need reform and require a different, more nuanced approach to understanding the difficult issues at stake. ^[2]The issues of rape marriage, legalisation, the need for reform are important in many ways. First, it emphasises the need for effective and supportive interventions to support the physical and mental well-being of women experiencing marital conflict. Second, it recognises the importance of holding perpetrators accountable for their actions while also taking into account the power imbalances and social structures that contribute to marriage. Finally, he emphasized that more detailed and nuanced approaches are needed to understand the complex issues surrounding marriage and that changes in legal frameworks, bridges and law are needed to resolve them.

^[3]RAPE AND MARITAL RAPE

Consistent with Section 63 of the Bharatiya Nyaya Sanhita, 2023, rape is described as:

Any shape of penetration via a person into the vagina, mouth, urethra, or anus of a girl, or compelling her to perform similar acts with him or some other person.
Insertion of an object or a part of the body (with the exception of the penis) into a girl’s vagina, urethra, or anus.
Manipulation of a lady’s frame to induce penetration.
Contact with a lady’s intimate components, whether or not consensual or non-consensual in particular situations.

However, the law additionally includes an exception that protects marital relationships from being classified beneath rape laws. It states: “Sexual intercourse or sexual acts by way of a person with his own spouse, the wife not being under fifteen years of age, isn’t always rape.” This exception legally permits non-consensual intercourse inside marriage, underscoring the demanding situations married girls face when seeking justice for sexual abuse by way of their spouses.

Marital rape refers to any sexual act(s) by using a partner or ex-partner, committed without consent and/or against someone’s will, received by using force, or chance of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral intercourse, forced sexual behaviour with different people, and different sexual activities which might be considered with the aid of the victim as degrading, humiliating, painful, and undesirable.^[4]

^[5]LITERATURE ASSESSMENT

1) Societal perspective:

Marital rape is regularly an emotional and bodily stigma to sufferer which constantly is at risk of needs of a few superior electricity which now not the society however patriarchal attitude of human beings tend to keep in mind. Howsoever, this has inflicted no longer the fitness of girl but increase question mark on mentality of society in which a female is thought inferior to man which provoke their spirit lots better for sexual assault and don’t forget them system for all works, provided that they married her to fulfill their necessities.

^[6]2) Diverse types of Marital Rape: Marital rapes are broadly classified into 3 categories:

Battering Rape: This majorly covers all of the marital rape as it not handiest cause sexual harassment however additionally physical violence to lady which cause them to liable to atrocities, fear, intellectual and physical troubles like strain, cervical cancer or may be undesirable being pregnant where they no longer handiest have to take care of their unborn infant however also has to fill bodily needs in their husbands.
Pressure only Rape: The violence on this kind only occurs to get physically intimated towards the will of wife by using forcefully coercing her to do intercourse. Unlike battering, this does not motivate any physical damage however best occurs for sexual means from the spouse.
Sexual coercion via non-bodily means: This takes place whilst man verbally forces a girl to enter into sexual acts by way of making her realize about her duties of being a wife, this takes till the unwilling wife enters into physical relation with husband. Despite the fact that this kind of rape arise because of non-physical force and verbal conversation it’s miles much less extreme than battering rape but reason lot of intellectual distress to married lady.

3) Legal Position In Other Countries:

^[7]When researchers looked at the differences between different types of rape, they found that marital rape accounts for about 25 percent of all rapes. Despite the rise in marriage equality, the issue has not received much attention from social scientists, clinicians, criminal justice professionals, and the broader community.

In 17 states and the District of Columbia, fathers are not protected against rape charges. However, in 33 states, husbands still enjoy some immunity from rape charges. In more than 33 states, husbands are not immune from prosecution and cannot be legally agreed upon when their wives are at their most dangerous position.

In the case of wife rape, the spouse is considered the primary perpetrator, because the spouse often cannot withdraw consent to sexual intercourse as part of the marriage contract. However, in 1991, the protection against marriage was completely removed. In ^[8]R v. R, SC said that if a husband forces his wife to have sex against her will, the law cannot be considered violence against the husband, and that it is immoral and cruel, a law that does not represent the work of women today.

Furthermore, the fact that the parties are married or in a regular relationship does not guarantee a reduction. If convicted, perpetrators of marital violence face up to 16 years in prison. Recent amendments to the Criminal Procedure Code in Sri Lanka have recognised marital rape only when there is a complaint of infidelity between legally separated spouses.

^[9]THE INDIAN SITUATION

In Buddhasattwa Gautam v. Subhra Chakraborty, the Supreme Court ruled that “the crime is a violation of human rights and violates the victim’s most fundamental right to life, guaranteed under Article 21 of the Constitution.” Article 63 of the Indian Constitution, the Hindu Model Law, 2023, states that there is no protection against marital rape in general and therefore, women who have been sexually abused are now seeking to combat the situation of protection without access to their husbands.

^[10]Those who are under the age of 15, 16 and those living separately from their spouses. The molestation of a girl below 12 years of age is punishable with imprisonment for 10 years or more, but the punishment for molestation of a girl below 15 years of age is much more severe. In 1983, there was some progress in the issue of domestic violence against women with the insertion of Section 66 of the Bharatiya Nyaya Sanhita, 2023 makes rape of a divorced woman a punishable offence. The amended law has been prepared based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Constitution of India. The Committee rejects the claim that marriage is a license to rape. So if the husband first has intercourse with his wife, if he trespasses a second time and if his wife leaves him a third time, whether by law, custom or tradition, the husband can now be prosecuted and sentenced to imprisonment for up to 2 years. But this is still just a legal document and Parliament has a lot of work to do on the issue of marriage. When the Ministry of Justice proposed in its 42nd report that sexual intercourse between men and their underage wives should be criminalised, it gave hope. The joint committee that examined the proposal rejected it. The committee argued that a husband cannot be convicted of assault, regardless of the age of his wife.

CONSTITUTIONAL PROVISIONS

Article 14 of our charter states that every citizen has to accept equal rights but it no longer denies reservation till and until it has reasonable nexus. but this law, differentiate the provisions of rape relevant on married female past or 18 years of age and the above.

Article 21 of our constitution states that every citizen ought to have the right to privacy, food, lifestyles, liberty, and so on. but this law once more raises questions about the right to liberty through supplying unequal get right of entry to married ladies.^[11]

LACUNAE IN INDIAN REGULATION

The predominant criminal lacunae that come inside the way of empowering women towards marital rape are:

The judicial interpretation has expanded the scope of Article 21 of the constitution of India by way of leaps and bounds and “proper to live with human dignity” is within the ambit of this article.
Article 14 of the charter guarantees the essential property that “the country shall no longer deny to any character equality before the law or the equal safety of the legal guidelines inside the territory of India”. Article 14 therefore protects someone from nation discrimination but the exception underneath section 63 of the BNS discriminates with a spouse on the subject of protection from rape.
Although safety of the dignity of women is a essential responsibility underneath the constitution, casting a responsibility upon each citizen “to give up practices derogatory to the respect of a lady”; it appears that evidently domestic violence and marital rape do not come below the definition of dignity.
The “United countries conference on the removal of All kinds of Discrimination in opposition to ladies” (CEDAW), of which India is a signatory, has considered that this kind of discrimination against ladies violates the principles of equality of rights and admiration for human dignity.
A husband cannot be prosecuted for raping his wife due to the fact consent to matrimony presupposes consent to sexual intercourse. This means that having sex every time, anywhere and of any type is an implied time period of the contract of marriage, and the spouse could not breach that term of the contract.
The law prevents a woman under 18 years from marrying, however then again, it legalizes non-consensual sexual intercourse with a wife who’s simply 15 years of age.
The BNS states that it’s far rape if the female is not the wife of the person worried and is below sixteen, although she is of the same opinion. However if she is a wife, no longer underneath 15 and does no longer consent, it isn’t rape.^[12]

^[13]How did the Exception on Marital Rape find its way into the IPC?

British Colonial Rule:
- The IPC was carried out in India at some stage in British colonial rule in 1860.
- Under the primary model of the rules, the marital rape exception changed into relevant to ladies over 10 years of age which turned into raised to 15 in 1940.

1847 Draft of Lord Macaulay:
- In January 2022, it became argued via amicus curiae that the IPC is based at the 1847 draft of Lord Macaulay, the chairman of the first regulation commission set up in colonial-generation India.
- The exception in the draft decriminalised marital rape without any age restrict.
- The availability is an age-vintage concept that implies consent with the aid of married ladies and protects the conjugal rights of the husband.
- The concept of implied consent comes from the Doctrine of Hale, given by Matthew Hale, then British chief Justice, in 1736.
- It states that a husband can not be responsible of rape, given that “through their mutual matrimonial consent and contract the spouse has given up herself on this kind to the husband”.

Doctrine of Coverture:
- In step with the Doctrine of Coverture, a lady has no individual criminal identity after marriage.
- Appreciably, the Doctrine of Coverture found a point out throughout the hearing whilst the supreme courtroom of India struck down adultery as a criminal offence in 2018.
- This doctrine, even though now not recognized by the constitution, holds that a girl loses her identification and legal rights with marriage, is violative of her fundamental rights.^[14]

JUDICIAL PRECEDENT

^[15]The right to privateness diagnosed by the ultimate court docket in state of Maharashtra v. Madhukar Narayan upheld each female’s right to sexual privacy, which must not be taken away with the aid of every person. If rape by way of a stranger is a criminal offense, then the same act inside marriage should be handled with same seriousness, because it violates a girl’s essential and human rights.

In addition, following the Nirbhaya case, the Justice Verma Committee, which changed into installation to recommend modifications in legal guidelines associated with sexual offenses, strongly endorsed for the criminalization of marital rape. The Committee recognized marital rape as a severe violation of girls’s rights and argued that except for it from the definition of rape contradicts the concepts of equality and justice. regardless of these pointers and the submission of numerous petitions over the years advocating for the criminalization of marital rape, this area stays neglected in Indian regulation, and marital rape is still legally unaddressed.

BREAKING THE SILENCE

Nisha Sharma: A Stand towards Dowry

In 2003, Nisha Sharma made headlines when she courageously called off her marriage because of dowry demands from her in-laws. Although this situation does now not contain marital rape, Nisha’s selection to speak out against the exploitation confronted through many girls within the organization of marriage inspired endless others to take a stand towards home violence. Her story emphasizes the significance of recognizing and addressing the numerous kinds of violence and exploitation ladies face, empowering them to call for recognize and equality in their relationships.

Kerala Marital Rape Case: A legal Milestone

A considerable improvement came about in 2021 whilst the Kerala high courtroom stated marital rape as a valid floor for divorce. In this example, the spouse accused her husband of automatically forcing her into non-consensual sexual acts, labeling it as marital rape. even though marital rape stays uncriminalized in India, this ruling provided hope to many ladies facing comparable conditions, suggesting that the legal gadget ought to evolve to understand the rights of women in abusive marriages.^[16]

^[17]WAY FORWARD

In light of the above dialogue following guidelines are made:

Marital rape need to be recognized by using Parliament as an offence below the Indian Penal Code.
The punishment for marital rape have to be the same as the one prescribed for rape under section 63 of the BNS
The reality that the parties are married need to now not make the sentence lighter.
It should no longer be a defence to the fee that the wife did no longer fight returned and resisted forcefully or screamed and shouted.
The spouse should have an alternative of having a decree of divorce if the rate of marital rape is proved towards her husband. though a case of marital rape may additionally fall below “cruelty” or “rape” as a ground of divorce, it’s miles really useful to have the prison function clarified.
Demand for divorce can be a choice for the spouse, but if the wife does not need to lodge to divorce and desires to keep with the marriage then the marriage has to be allowed to continue.
Corresponding modifications within the matrimonial legal guidelines have to be made.^[18]

^[19]CONCLUSION

Marital rape or spousal rape need to be handled as a crime as it’s miles nowhere a right of a husband to force or threaten his spouse to go into into any sort of sexual hobby. Exception 2 to segment 375, IPC, is ultra vires the fundamental rights guaranteed with the aid of the charter of India i.e., Article 14 and Article 21. It isn’t always justified to discriminate in opposition to a married lady to that of unmarried and marital repute should not be a parameter to determine whether or not the rape has been devoted or not. Marital rape restrains women from living a healthful existence with human dignity and provides unique privilege to husbands to act autocratically as they’re properly versed with the truth that no movements can be taken at the ground of marital rape as it’s now not penalized. It’s high time now that the legislature should awaken and strike down this provision from the statute as it’s the obligation of the kingdom to protect an individual whether married or unmarried from such barbaric acts. ^[20]