MARITAL RAPE – ALL YOU NEED TO KNOW

This article has been written by MS. KHAN GULFASHA BANU WAHID a Second year BA.LLB Student from HVPS COLLEGE OF LAW.

INTRODUCTION:

Marital rape is the term used to describe sexual acts committed without a wife’s consent and against her will by the women’s husband. He may use physical force, threats of force, to her or another person, or implied harm based on prior assaults, causing the women to fear that physical force will be used if she resists.

India has advance in almost every field, yet sexual violence which occurs within the four walls of a matrimonial home is considered to be private, family matter and is excluded from scrutiny by public institution like courts. Marital rape is not an offence in India and the criminal justice system has failed to render justice to married women who are victim of sexual offence.

Section 375 of the INDIAN PENAL CODE – reflects somewhat archaic sentiments, stating in its exception clause that “sexual intercourse or acts by a man with his own wife not being under age of 15 is not rape”  

SURVEY ON MARITAL RAPE:

 In 2011, a survey in India revealed that one in five men have forced their wives to have sex. More than two-thirds of Indian married women between 15 and 49 years old claimed to have been beaten or forced into sex by their husbands.

The International Institute of Population Sciences claimed that 26 per cent of women in Pune, 23 per cent in Bhubaneswar, and 16 per cent in Jaipur often have sex with their husbands against their will. The study found a direct link between alcoholism and sexual abuse. One-fifth of the women surveyed said their husbands were often drunk while forcing sex.

Comparative Study between India and USA

The United Nation population fund states that more than 2/3rd of the married

women in India, who are aged between 15 to 50, have been beaten, raped or

forced to provide sex with him. In the year 2005 nearly more than 6500 cases

were recorded where women were murdered by their husbands or by them.

Marital Rape in the United States

In the year 2006 United Nations Secretary General analysed in-depth study on

all forms of violence against women which is the marital rape. It stated that in at

least 53 countries rape by husband is not considered to be an offence. In the

United States, Marital rape has become much more criminalized. In many

countries the marital rape laws are ambiguous and they are not clear that the

person can be prosecuted for a marital rape or not. where in the absence of the

law it may be possible to bring prosecution for acts of forced sexual

intercourse. In countries where the laws on rape exclude husband were the

countries have inherited the Penal Code which states that the sexual intercourse

by a man with his own wife is not rape.

Marital Rape in India

If we look into the judicial aspects of India, it clearly states that “sexual

intercourse by a man with his own wife, the wife not being under 15 years of

age, is not rape” under section 375 of the Indian Penal Code. Section 376 of

the Indian Penal Code provides punishment for rape. According to this section,

the rapist should be punished with imprisonment of either description for a term

which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine or both.

CASE LAWS:

possible under the English Criminal Law the commit rape on his own wife. The defendant, 

that is the husband, claimed that he can commit rape on his wife since the wife gave him 

irrevocable consent by the contract of marriage. Thus, as a reaction to this, both the House of 

Lords and the Court of Appeal held that there is no exception of marital rape under the 

English law. 

COUNTER ARGUMENTS: 

∙Criminalising marital rape would be an attack to the holy sacrament of marriage 

∙Women can misuse the defence of marital rape with every disagreement they face 

with their husband 

∙Criminalising marital rape for women is too woman centric 

∙Marital rape is okay as long as its between the husband and wife 

∙Courts cannot interfere in a personal matter like marriag

U.K landmark case is R v R. In this case, the House of Lords held that it is 

possible under the English Criminal Law the commit rape on his own wife. The defendant, 

that is the husband, claimed that he can commit rape on his wife since the wife gave him 

irrevocable consent by the contract of marriage. Thus, as a reaction to this, both the House of 

Lords and the Court of Appeal held that there is no exception of marital rape under the 

English law. 

COUNTER ARGUMENTS: 

∙Criminalising marital rape would be an attack to the holy sacrament of marriage. 

∙Women can misuse the defence of marital rape with every disagreement they face 

with their husband.

∙Criminalising marital rape for women is too woman centric.

∙Marital rape is okay as long as it’s between the husband and wife. 

∙Courts cannot interfere in a personal matter like marriage.

In Saretha V.T. Venkata Subbiah case, it was held that, rights and duties in a marriage, is

like a creation and dissolution and not the term of private contract between

two individuals. The right to privacy is not lost by marital Association. hence

there is no punishment for marital rape and the remedy lies with her. 

TYPES OF MARITAL RAPE:

• Battering rape: This is a type of marital rape where women experience both physical and sexual violence in the relationship in many ways. Some occasions are those where the wife is battered during the sexual barbarity, or the rape may follow a physically brutal episode where the husband wants to make up and pressurizes his wife to have sex against her will. In most cases, the victims fall under this stated category.
• Force only rape: In this type of marital rape, husbands use only that amount of force, as it is required to pressurize their wives. In such cases, battering may not be an attribute, but women who deny sexual intercourse usually have to face such assaults.
• Obsessive rape: In obsessive rape, assaults involve vicious torture and/or perverse sexual acts and are most commonly fierce in form. This type has also been categorized as sadistic rape.

CONCLUSION: 

It has been concluded that Indian laws have failed to provide a proper protection to women as earlier as the women are still treated as the property of husband and he has all the rights to exploit her and no remedies have been provided. Though a husband’s violent and non-consensual act of intercourse may entitle a wife to bring action for criminal assault, the incorporation of the principal of liability for marital rape in our penal laws is not present. This prima facie violates Article 14 and 21 of the Indian Constitution. Non-criminalization of marital rape is the major concern in the Indian legal system. In order to protect the women, the Judiciary should take initiatives to safeguard them. Married women should be taken proper care and they should not be subjected to sexual assault or violence. Hence this section has a very narrow view in dealing with sexual assault and as such till now there is no legal provision which protects the married women.

REFERENCE:

https://www.legalservicesindia.com/article/2369/Marital-Rape.html

https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/

http://www.hiddenhurt.co.uk/marital_rape.html

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