This article has been written by Ms. Stuti Chaudhary, a 2nd-year B.A.LL.B student from Lloyd Law College, Greater Noida.
INTRODUCTION:-
Marital rape refers to any sexual act that is forced upon a spouse without their consent. In other words, it is non-consensual sexual intercourse between two people who are married or in a civil union.
Marital rape has been recognized as a criminal offense in many countries in recent years, but it is still not recognized as a crime in some places. It is important to note that consent must be given freely and voluntarily for any sexual activity to be legal, regardless of the relationship between the parties involved. Marital status should not be used as an excuse to justify sexual violence or abuse.
Marital rape can have serious physical, psychological, and emotional consequences for the victim, including physical injuries, sexually transmitted infections, unwanted pregnancies, and mental health issues such as depression, anxiety, and post-traumatic stress disorder. It is important for victims of marital rape to seek medical and legal help, and for society as a whole to take steps to prevent and address this form of violence.
MARITAL RAPE IN THE INDIAN PENAL CODE:-
Marital rape is a controversial topic, and the criminalization of marital rape varies across countries and jurisdictions. In India, marital rape is not explicitly criminalized under the Indian Penal Code (IPC).
Section 375 of the IPC defines rape as the non-consensual penetration of a woman’s vagina by a man’s penis. However, an exception in the law states that sexual intercourse by a husband with his wife, who is above the age of 18, is not rape, even if it is without her consent.
This exception has been heavily criticized by many human rights groups and women’s rights activists, who argue that it perpetuates the idea that a woman’s consent is not necessary within the context of marriage and reinforces the notion that a wife is the property of her husband.
In recent years, there have been calls for the Indian government to repeal this exception and criminalize marital rape. However, there has been significant resistance to such efforts, with some arguing that it could undermine the institution of marriage and lead to false accusations.
Despite the lack of specific legal provisions against marital rape in India, a victim of marital rape may still file a complaint under other provisions of the IPC, such as section 498A (cruelty by husband or his relatives) or section 377 (unnatural offenses). Additionally, Indian courts have recognized the right of a wife to refuse sexual intercourse with her husband, even if the act is not defined as marital rape under the law.
SECTION 375 OF THE IPC:-
Section 375 of the Indian Penal Code (IPC) defines the offense of rape in India. According to the section, 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 to do so with him or any other person.
Uses any object or part of his body (except the penis) to penetrate, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person.
Manipulates any part of the woman’s body to cause penetration into the vagina, mouth, urethra or anus, or makes her to do so with him or any other person.
Applies force or coercion of any kind to engage in sexual intercourse, even if there is some sort of consent involved.
The section also specifies that sexual intercourse or sexual acts with a girl under the age of 18, with or without her consent, constitute statutory rape.
Section 375 was amended in 2013 to expand the definition of rape and provide for more severe punishments for the offense. The amendment also introduced new provisions, such as the criminalization of certain types of sexual acts like voyeurism, stalking, and acid attacks.
HISTORY OF MARITAL RAPE:-
The concept of marital rape is not a new phenomenon and has existed for centuries. However, it was not recognized as a criminal offense until relatively recently. Historically, marriage was considered to be a legal and social contract that conferred ownership of a woman’s body to her husband. In many cultures, a wife was expected to fulfill her husband’s sexual desires regardless of her own wishes or consent. As a result, the idea of marital rape was not widely acknowledged.
It wasn’t until the late 20th century that the issue of marital rape began to be recognized as a serious problem. The feminist movement of the 1960s and 1970s brought attention to issues of gender inequality and women’s rights, including the right to bodily autonomy and the recognition of sexual violence within marriage.
In the 1970s, a few countries, including the United States and Sweden, began to criminalize marital rape. However, it was not until the 1990s and 2000s that many other countries followed suit. As of today, marital rape is a criminal offense in many countries, while in others, it is still not recognized as a crime.
The recognition of marital rape as a criminal offense reflects a broader shift towards recognizing the importance of consent in sexual relationships, regardless of the marital status of the individuals involved.
ESSENTIAL ELEMENTS OF MARITAL RAPE:-
Marital rape is a form of sexual violence that occurs within the context of marriage or a committed intimate relationship. The term refers to non-consensual sexual activity between spouses, in which one partner forces the other to engage in sexual acts against their will. Here are some of the essentials of marital rape:
Lack of consent: The most important element of marital rape is the lack of consent. Consent means that both partners willingly and enthusiastically agree to engage in sexual activity. If one partner is forced, coerced, threatened, or manipulated into sexual activity, it is not consensual and can be classified as rape.
Use of force: Marital rape often involves the use of physical force or violence by the perpetrator to coerce the victim into sexual activity. This can include verbal threats, physical violence, or other forms of intimidation.
Relationship between the parties: The parties involved in marital rape are married or in a committed intimate relationship. The existence of a marital relationship does not automatically imply consent to sexual activity. Each partner has the right to decide whether or not to engage in sexual activity, regardless of their marital status.
Psychological trauma: Victims of marital rape may experience psychological trauma, including anxiety, depression, post-traumatic stress disorder (PTSD), and a range of physical health problems. Marital rape can have long-lasting effects on a victim’s emotional and mental well-being.
Legal recognition: In many countries, including India, marital rape is not recognized as a criminal offense. However, some jurisdictions have criminalized marital rape and recognize it as a serious form of sexual violence.
Overall, marital rape is a complex and multifaceted issue that requires a nuanced approach to prevention, intervention, and treatment. It is important to recognize that sexual violence is never the victim’s fault and that every person has the right to control their own body and sexual choices.
MARITAL RAPE AND SECTION 375:-
Section 375 of the Indian Penal Code (IPC) defines the offense of rape in India, but it contains an exception clause that exempts husbands from being charged with rape if they have sexual intercourse with their wives without consent. This means that a husband cannot be charged with the crime of rape if he forces sexual intercourse with his wife, even if it is against her will.
This exception has been widely criticized by women’s rights activists and human rights groups, who argue that it perpetuates the notion that wives are the property of their husbands and that sexual assault is acceptable within the confines of marriage. Many countries, including the United States, Canada, and several European countries, have criminalized marital rape, but India has not yet done so.
Victims of marital rape in India may still file complaints under other provisions of the IPC, such as section 498A (cruelty by husband or his relatives) or section 377 (unnatural offenses), or seek redress under civil laws such as the Protection of Women from Domestic Violence Act, 2005. However, these laws do not explicitly address the issue of marital rape and may not provide adequate protection to victims.
There have been ongoing efforts by women’s rights activists and civil society groups to repeal the exception clause in section 375 and criminalize marital rape in India. However, the issue remains contentious, with some arguing that criminalizing marital rape could undermine the institution of marriage and lead to false accusations.
TYPES OF MARITAL RAPE:-
Marital rape refers to non-consensual sexual activity that occurs between spouses. There are different types of marital rape that can occur, and they may involve various forms of coercion or force. Here are some examples:
Force-only rape: This type of marital rape involves the use of physical force, such as hitting, pushing, or holding down the victim, to compel them to engage in sexual activity.
Battering rape: Battering rape involves not only the use of physical force but also emotional and psychological abuse to intimidate the victim. This type of marital rape often occurs in the context of a physically abusive relationship.
Obsessive rape: This type of marital rape involves a spouse who becomes obsessed with having sex and is unable to control their sexual impulses. The victim may feel pressured or coerced into sexual activity even if they do not want to engage in it.
Gaslighting rape: Gaslighting is a form of psychological manipulation that involves making the victim question their own reality. In the context of marital rape, this might involve convincing the victim that they are overreacting or that the sexual activity is consensual when it is not.
Marital rape as a form of spousal abuse: Marital rape can also be used as a form of spousal abuse to exert control over the victim and undermine their sense of autonomy and self-worth.
INDIAN LEGISLATIONS ON MARITAL RAPE:-
In India, marital rape is not recognized as a criminal offense under the Indian Penal Code (IPC), and there is no specific law that criminalizes marital rape. The exception clause in section 375 of the IPC states that sexual intercourse by a husband with his wife, who is above 18 years of age, is not rape, even if it is without her consent.
However, there are other laws in India that can be used to address instances of marital rape, including:
Protection of Women from Domestic Violence Act, 2005: This law defines domestic violence broadly to include physical, sexual, emotional, verbal, and economic abuse. It can be used to seek protection, restraining orders, and compensation for victims of marital rape.
Section 498A of the Indian Penal Code (IPC): This law criminalizes cruelty by husbands or their relatives against wives and provides for imprisonment for up to three years. It can be used by victims of marital rape to seek legal redress.
Section 377 of the Indian Penal Code (IPC): This law criminalizes unnatural sexual acts and can be used to prosecute cases of non-consensual sexual activity between spouses.
Despite these laws, the absence of a specific law on marital rape and the exception clause in section 375 of the IPC make it difficult for victims of marital rape to seek justice. There have been ongoing efforts by women’s rights activists and civil society groups to repeal the exception clause in section 375 and criminalize marital rape in India, but no concrete steps have been taken by the government to address the issue.
MAJOR CASES OF MARITAL RAPE IN INDIA:-
As marital rape is not recognized as a criminal offense in India, there are no official statistics on the number of cases of marital rape. However, there have been several high-profile cases that have come to light in recent years, highlighting the prevalence of the issue.
Here are some of the major cases of marital rape in India:
Independent Thought v. Union of India:
In 2017, the Supreme Court of India ruled that sexual intercourse with a minor wife, even if she is above the age of 15, amounts to rape. The case was brought by the NGO Independent Thought, which challenged the exception clause in section 375 of the IPC.
Jolly Tamma Joseph v. State of Kerala:
In 2019, a woman from Kerala filed a case against her husband for raping her repeatedly over a period of several years. The case garnered widespread media attention and sparked a national conversation on the issue of marital rape.
Lalita Toppo v. State of Jharkhand:
In 2019, a tribal woman from Jharkhand filed a case against her husband for repeatedly raping her and subjecting her to physical and mental abuse. The case highlighted the vulnerability of tribal women to sexual violence within the context of marriage.
These cases represent just a few examples of the many instances of marital rape that go unreported and unpunished in India. The lack of a specific law on marital rape and the exception clause in section 375 of the IPC make it difficult for victims to seek legal redress and perpetuate a culture of impunity for perpetrators.
CRIMINALIZATION OF MARITAL RAPE IN INDIA:-
Marital rape is not yet criminalized in India, although there have been ongoing efforts by women’s rights activists and civil society groups to repeal the exception clause in section 375 of the Indian Penal Code (IPC) and criminalize marital rape.
The exception clause in section 375 of the IPC states that sexual intercourse by a husband with his wife, who is above 18 years of age, is not rape, even if it is without her consent. This means that a husband cannot be charged with rape if he forces his wife to have sexual intercourse without her consent.
However, the issue of marital rape has gained increasing attention and scrutiny in recent years, with many activists calling for the repeal of the exception clause and the criminalization of marital rape. The National Commission for Women (NCW) has recommended that marital rape be made a criminal offense, and several high-profile cases have drawn attention to the issue, including the Independent Thought v. Union of India case, which resulted in a Supreme Court ruling that sexual intercourse with a minor wife, even if she is above the age of 15, amounts to rape.
Despite these efforts, the government has yet to take concrete steps to criminalize marital rape, and the issue remains a contentious and unresolved topic in Indian law and society.
NEED FOR STRICTER LAWS TO PREVENT WOMEN:-
There is a clear need for stricter laws to prevent marital rape in India. Currently, marital rape is not recognized as a criminal offense in India, and the exception clause in section 375 of the Indian Penal Code (IPC) allows husbands to rape their wives with impunity.
Here are some reasons why stricter laws are necessary:
Protection of women’s rights: Marital rape is a violation of women’s fundamental right to bodily integrity and sexual autonomy. By criminalizing marital rape, the government can send a strong message that women have the right to control their own bodies and sexual choices.
Prevention of violence against women: Marital rape is a form of domestic violence that can have serious physical, emotional, and psychological consequences for women. By criminalizing marital rape, the government can send a clear signal that violence against women, including within the context of marriage, will not be tolerated.
Deterrence of perpetrators: Stricter laws and harsher punishments can act as a deterrent to potential perpetrators of marital rape, and can help to change attitudes and behaviors around sexual violence within marriage.
Empowerment of women: Criminalizing marital rape can help to empower women to speak out against sexual violence and seek legal recourse, and can promote a culture of respect for women’s rights and bodily autonomy.
Overall, stricter laws are necessary to prevent marital rape in India and to protect the rights and dignity of women. It is important for the government to take proactive steps to address this issue and to ensure that perpetrators of sexual violence, including within the context of marriage, are held accountable for their actions.
CONCLUSION:-
In conclusion, marital rape is a serious issue in India, and there is a clear need for stronger laws and legal frameworks to protect women’s rights and prevent sexual violence within marriage. The exception clause in section 375 of the Indian Penal Code (IPC) is widely criticized by women’s rights activists and civil society groups, who argue that it perpetuates the myth that women are the property of their husbands and have no agency over their own bodies. There have been ongoing efforts to repeal this exception clause and to criminalize marital rape in India, but progress has been slow. It is important for the government to take proactive steps to address this issue, including through education and awareness-raising campaigns, and to ensure that perpetrators of sexual violence, including within the context of marriage, are held accountable for their actions. Only through a concerted effort to change attitudes and behaviors around sexual violence can we hope to end this pervasive problem and protect the rights and dignity of women in India.
REFERENCES:-
The Indian Penal Code: https://www.indiacode.nic.in/bitstream/123456789/1836/1/THE-INDIAN-PENAL-CODE-1860.pdf
National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India, “Crime in India 2019”: https://ncrb.gov.in/en/crime-india-2019
Independent Thought v. Union of India, Writ Petition (Criminal) No. 194 of 2017: https://indiankanoon.org/doc/117821063/
National Commission for Women (NCW), “Report on Marital Rape”: https://ncw.nic.in/pdfReports/ReportonMaritalRape.pdf
Amnesty International India, “Breaking the Silence: Marital Rape in India”: https://www.amnesty.org.in/wp-content/uploads/2021/05/REPORT_BreakingTheSilence_MaritalRapeInIndia_2017.pdf
The Guardian, “India: Does the law protect women from rape within marriage?” https://www.theguardian.com/global-development/2019/apr/16/india-does-the-law-protect-women-from-rape-within-marriage
LiveLaw, “Marital Rape: The Debate Continues”: https://www.livelaw.in/top-stories/marital-rape-the-debate-continues-172710
The Hindu, “Marital Rape: Why criminalizing it is necessary”: https://www.thehindu.com/opinion/op-ed/marital-rape-why-criminalising-it-is-necessary/article22752000.ece
Indian Journal of Psychiatry, “Marital Rape: A Distressing Reality”: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6722414/
Hindustan Times, “Marital rape: a hidden form of violence in India”: https://www.hindustantimes.com/analysis/marital-rape-a-hidden-form-of-violence-in-india/story-ycPstt7IT34qgT2exBsSjN.html
The Wire, “Marital Rape: The Myth of Conjugal Rights”: https://thewire.in/women/marital-rape-conjugal-rights-indian-law
India Today, “Marital rape: Why the law must be changed”: https://www.indiatoday.in/india-today-insight/story/marital-rape-why-the-law-must-be-changed-1233267-2018-05-24
Economic and Political Weekly, “Making Marital Rape Visible: The Need to Criminalize Marital Rape in India”: https://www.epw.in/journal/2019/31/perspectives/making-marital-rape-visible.html
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