By Shrishti Saxena
Among the various violences suffered by the spouse in a marriage, the most heinous and hateful is marital rape. It is marital rape if the other has sexual intercourse with their spouse without the consent or permission of the spouse. This act destroys the spouses mental state and leaves them in trauma. Lack of consent of the spouse in a marriage is an essential element in marital rape.
The ongoing debate is that whether marriage gives husband a complete right over his wife in every sense including sexual intercourse. In Indian culture, the core foundation is that it is considered to be an implied consent when a woman agrees to marry a man. Marriage is not just merely just a physical relationship but is also considered as an emotional relationship between two people.
Marriage is considered as the most important and serene bond and facing such heinous crime like rape is cruel. Marital rape is offensive and violates many basic human rights which are mentioned under Article 14 and Article 21 of the Constitution. The Constitution acts as a safeguard to the citizens from the government, it is a contract between the state and the citizens. Marital rape is divided into two categories through physical force and other one is through societal or conservative ideas that wife is expected to fulfil.
It was stated in Nimesh Bhai Bharatbhai Desai v. State of Gujarat, that after observing law for sexual violences, just because one has married a woman does not give the permission or right to the husband to forcefully compel the wife to have sexual intercourse with him. In India, marital rape still exists and it being an immoral act has disturbed the belief of people in the holy matrimony.
Marital rape in Indian is considered to be a branch of domestic violence. Recent conclusions of the National Family Health Survey say that three out of 10 women suffer some form of domestic violence. The survey said violence against women notably increased during the lockdown, and the data also indicates 79% increase of domestic violence since 2019.
“Rape is a not consensual sexual contact with a woman” as stated by Section 375 of Indian Penal Code,1860. Exception is that the husband is not liable for having intercourse without the consent of the wife if the said wife is above 15 years of age.
In this scenario, spousal rape is more horrifying for a woman as she has to live with her rapist. Due to the graveness of this issue, it is clear-cut that marital rape being a heinous crime should be criminalised. In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court ruled that rape is said to be violative of the fundamental human rights. According to Article 21 of the Constitution, “No person shall be deprived of his life or personal liberty except procedure established by law.”
Justice Rajiv Shakdher of the Delhi High Court in May 2022 gave a neutral verdict on criminalisation of marital rape. He said the abolition of the right to consent is a violation of women’s right to life and personal liberty. It was said to be unconstitutional. This verdict was opposed by Justice C Harishankar. He rejected the appeal for criminalisation of marital rape. He said the legislature cannot make any changes in the law as the issue is very sensitive and it should be checked in various aspects like social, cultural and legal.
He concluded that criminalising marital rape would end up with too much interference in the institution of marriage. In State of Maharashtra v. Madhukar Narayan, the court of law observed that every women has the right to sexual security and no one can violate it until the woman consents for sexual intercourse.
Differentiating marital rape from rape infringes the wife’s right to equality, right to life and freedom of expression which are assured in the Constitution for all citizens irrespective of gender. On this matter, two High Court judges had a split verdict where one of them said “Rape is rape” while the other said “Sexual intercourse between a marital couple is sacred.” Sex workers have the right to say ‘no’ under the law but wives do not have any right to say no which clearly violates “Article 14 (equality before law), Article 15 (prohibition of discrimination on terms of religion, race, caste, sex and place of birth), Article 19(1)(d) (freedom of speech and expression) and Article 21 (right to life and personal liberty)” of the Constitution of India. Justice Shakdher stressed on the point that “certain sexual offences need to be called out for what they are”.
Just because the accused is the husband and the victim is the wife, rape cannot be categorised under domestic violence and non-consensual sex, even if they are married cannot be called sacred. Right over their own body is a birth right and basic human right which is also stated in Article 21. In RV Chase, it was observed that it is about the intention to touch or attempt to touch any private part of a women even though he didn’t commit the act and it is the intention that matters even though the act was not committed.
In India, marriage is considered to be a sacrament and the most important social event. Marriage in India is not just between two individuals but it is a union of two families. Marriage is believed to be in the interests of a person’s mental, social, economic and physical wellbeing. The main objective of marriage is to protect society from foulness and unchastity.
In India, spousal rape is not believed to be a crime. The Supreme Court expressed that criminalising marital rape would cause “excessive interference with the institute of marriage”. It was also supported that a husband having sexual intercourse with his own wife will not amount to rape as being married itself is a consent.
Section 375 of Indian Penal Code,1860 defines rape which states that “a man will be held liable for the offence of rape, that is, for having sexual intercourse with a woman when it falls under any of the below mentioned six circumstances: –
- Having sexual intercourse against the will of the women
- Having sexual intercourse without her consent.
- Having sexual intercourse with her consent but that consent is obtained by means of threat.
- Having sexual Intercourse with consent obtained by fraud or on false pretext of marriage. Promising her that he will marry her or making her believe that they are married. Sexual intercourse with consent when such consent is obtained by putting her in intoxication or is of unsound mind with her own or by him with an unwholesome substance.
- Having sexual intercourse with her, with or without her consent when she is under 16 years of age.
The exception under Section 375 of Indian Penal Code,1860 is that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
International human rights activists had questioned the exception to Section 375 of IPC as there is no legal security for age above 15 years. It cannot be denied that marital rape exists in society even now and a lot of women suffer in silence as still there is no legal norm to protect the victims of marital rape.
Section 375 of the Indian Penal Code needs to be amended so that the exception which says that marital rape is not rape is removed as sexual intercourse with any person without their consent amounts to rape. It should be amended to protect and grant justice to victims of marital rape. The basic human rights of women are violated in the name of marriage where they are forced to involve in sexual intercourse against their will.
A husband cannot use marriage as a permit/grant/authority (choose any word) to have forceful non-consensual intercourse. Rights should be the same for all the citizens and irrespective of their marital status. Marriage is for companionship; a husband cannot treat her as his property but as his equal. Marital rape cannot be taken under domestic violence as both the issues should be punished differently.
Rape is rape either if it’s before marriage or after marriage. In the case of Sakshi v. Union of India, the Supreme Court ruled that sexual assault on any body part should be considered rape.
—Shrishti Saxena is a BBA, LLB student of Symbiosis Law School, Hyderabad