Author- Janvi Vishnani
The rate at which crime rates are rising in India is disturbing and shameful for a multi-cultural, massive, and secular country like India. Marital rape the most critical issue but still unaddressed by modern legislation.
Marital rape or spousal rape refers to sexual activity perform against the wife by her husband without her consent. He can coerce or can use physical force against her or another person which creates a sense of fear that she might be injured if she refused. Marital rape has always been spotlighted when it comes to India. Indian laws have focused heavily on rape, sexual harassment, and sexual violence, but have largely ignored the concept of marital rape. The government of India seems to believe that it will undermine family values and be a hard strike to the institution of marriage, they also believe that if the husband will be subjected to abuse if the marital rape will be criminalised.
As the report prepared by the National Crime Records Bureau stated that “about 70 per cent of women in India are victims of domestic violence”. As per the report in India, a woman gets raped every 16 minutes, and every four minutes, she suffers from cruelty by her in-laws. How shameful these figures are for a country like India which claims to be the world’s largest democracy.
Types of marital rape
- Battering rape:
In battering rapes, women are subjected to physical and sexual abuse in their relationships, which manifests themselves in a variety of ways. Any woman is beaten during the rape, or the rape may occur during a sexually abusive episode in which the husband tries to make adjustments by forcing his wife to have sex against her will. The vast number of cases of marital rape fall into this group.
- Force-only rape:
Husbands use only the amount of force required to coerce their spouses in what is known as force-only rape; battering may not be a feature of these relations. The assaults usually occur after the woman has declined to engage in sexual activity.
- Obsessive rape:
Other women are subjected to what is known as sadistic or obsessive rape, which involves humiliation and/or twisted sexual actions and is often physically aggressive.
Effect of marital rape on a woman
The woman who has been the victim of marital rape suffers from various effect but it can be classified into two broad categories: –
- Psychological effect :-
Rape’s psychological effects have been well studied. Rape victims experiencing depression, low self-esteem, poor body confidence, posttraumatic stress disorder, and generalized negative feelings about men and sex. Marital rape victim is forced to reside with the rapist every day for a prolonged period and cannot take shelter somewhere else, marital rape is much more violent, physically traumatic, and harmful. Stranger rape occurs while the attacker is outside the house, whereas marital rape occurs when the enemy is inside the home.
In the stranger, “rape violence may not occur as frequently and the perpetrator is not intimately known to the victim but marital rape is much more traumatic and has a long-lasting emotional effect”. The woman who has been raped by a stranger is allowed to sue and can also raise her voice, However, if she is raped by her husband, no one will sympathize with her because it is her ‘duty to keep her family intact and happy,’ and by complaining about such ‘trivial, non-issues,’ she is stepping over the line which is between bedroom privacy “and the public domain outside the bedroom.”
- Physical effect: –
Victims of marital rape face serious physical consequences in addition to the psychological effects. The physical effect such as painful intercourse, vaginal pain during intercourse, bladder infections, vaginal haemorrhaging, delay in the menstrual cycle, miscarriage, sexually transmitted infection.While women who have been raped by strangers experience a long period of fear, particularly about their physical safety, and are consequently careful about being alone, where they go and with whom they have gone, but women who have been raped by their partners have been found to lose trust in their partners.
Analyzing section 375 exception from the perspective of the constitution
While the term “rape” is specified in section 375 of the Indian Penal Code, there is no such definition of “marital rape” and no reorganisation of marital rape under Indian law. Section 375 of IPC defines marital rape as: –
Rape.—A man is said to commit “rape” if he-—
- Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
- Manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her do so with him or any other person; or
- Applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person,
However, exception 2 says that “Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape”
In the case of Chairman, Railway Board v. Chandrima Das the court ruled that rape is not only a breach of a person’s ordinary rights but also a violation of fundamental rights. Rape is a crime not only against a woman’s but also against society as a whole. It is an offence against universal human rights and a violation of the victims most fundamental right that is the Right to life which includes the right to live with dignity under Article 21.
Marital rape is a violation of the basic fundamental values on which our whole justice system is built. Not recognizing marital rape as rape is giving a licence to the husband to rape her wife. The judiciary and government have failed to carry out this duty.
“The State shall not deny to any citizen equality before the law or equal protection of the laws within the jurisdiction of India,” as per article Article 14. Article 14 protects an individual from discrimination by the government. However, when it comes to rape rights, the exemption under Section 375 of the Indian Penal Code, 1860, discriminates against a wife. Thus, the exemption is given under Section 375 of the Indian Penal Code, 1860, is a sheer violation of article 14.
The famous J.S. Verma Study, which reignited the debate on marital rape in recent years. To effectively criminalise marital rape, they stated that the exception clause should remove.
But when the PIL was filed before Delhi High Court by the NGO claiming that the exception clause of 375 is violative of article 14, 19,21 but the government gets involved and argued that if they will criminalize marital rape it will become an easy tool for women to harass their husband and also it will destabilize the sacrosanct institute of marriage.
The government’s remarks, which are blatantly anti-women from the start, are extremely disappointing. The government has believed that all husbands’ sexual acts will be labelled as rapes and that all women are prospective liars who will falsely accuse their husbands.
Why is it that a nation that brags about its many achievements can’t cope with the most basic aspect of offering a dignified life to half of its population? The explanations for this may be due to patriarchal asymmetric systems and attitudes. Women are not seen as equal partners in the home or society, women are devalued due to sexist mentality.
The legal and social systems’ silence on marital rape serves to empower the attacker, the rapist to rape her wife, Rape is rape, regardless of whether it is committed by an individual in a close relationship. Hence marriage should not become a “license to rape a woman.”
Rape is an offence against women that violates their integrity and self-respect, and when it happens within the confines of a matrimonial home, it reduces the woman to the status of a sexual object. There is an urgent need for a separate law on this subject. In India, the laws on marital/spousal abuse should be in line with international standards an issue.
Why are there two yardsticks for measuring a single crime that has the same effect on the victim? On the one hand, an Indian law book punishes strangers who rape a woman but acquits or punishes the same person when he is married to the victim for different sympathy offences.
MARITAL RAPE should be made illegal, since we are all aware of how men abuse their power and force over women, denying their will. As a result, many women become victims commit suicide, Man has had the right to rule women since ancient times, but this law should be changed in modern India.
The need of the hour is to criminalize this societal evil. Enough talking, raising voices against it, uniting as women leaving behind the identity of mother or sister, and enforcing a strict law is all that is needed to end marital rape. It will be the women who must stand up and fight for their rights, joining hands with one another. Forced marital sex should be classified as rape under Section 375 of the IPC. A relationship between the defendant and the victim, whether marital or otherwise, should not be considered a legitimate defence or a mitigating factor justifying a lesser rape sentence.
Nonetheless, society must address this problem, and parents must teach and help their daughters to speak up when they feel oppressed. There must be sufficient knowledge so that poverty and illiteracy do not become impediments to criminalizing this unethical activity.
Janvi Vishnani is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing a BA.LL.B (Hons).