Marital Rape

The day will come when men will recognize woman as his peer, not only at the fireside but in councils of the nation. Then, and not until then, will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race.” – Susan B. Anthony

Ever heard of ‘Marital rape’?. You must have, but have you ever heard of the general reaction of the people when we talk about marital rape. “Marital rape, is that even a thing?” and “How can a husband RAPE his wife?” and more questions like “He is your husband he has full rights over you. How can it be considered as rape?”, before jumping into marital rape let us talk about Rape.

Rape is mentioned in Section 375[1] of Indian Penal code which defines rape as criminal offence and states that a man is said to commit rape when he has sexual intercourse with a woman against her will or without her consent or if she is a minor. So now if look into marital rape which is also known as spousal rape, to simply describe it is having sexual intercourse forcefully with your partner or without their consent, even if you are married, is considered as rape.

India is one of those thirty-six countries which still have not recognized any law for crimes like marital rape. [2] The patriarchal history of India has set the mind that the husbands have a full right on their wives, no matter what. The male domination has affected our lives in a disregarding way such that the offence of spousal rape is covered behind the wedding ring.

Do you know even rape has different types? The following are the types of marital rape-

1. Battering Rape- In this from of rape women suffers violence, both physical and sexual violence, in different ways. Most of the marital rape victims fall in this category.[3]

2. Obsessive Rape: This form of rape involves the use of force in sexual assault compiled with perverse acts against the wife.[4]

3. Force Only Rape- In this form of rape, the husband does not necessarily batter the wife, but uses as much force as is necessary to enter into sexual intercourse with the unwilling wife.

If we look at the history marital rape can be traced to the 17th century. The statement given by Sir Matthew Hale, C.J., England, Hale-

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”[5]

So the above statement implies that when women are married they lose their right to say no for having sexual intercourse with her husband, it is expected that the sex is considered in “package” of marriage.

The problem is much deeper than we think it is, there are thousands and lakhs of women who face this problem on a daily basis. Personally, I have seen women who have faced such domestic and sexual violence on daily basis. The statistics show how real it is-

It has been released by the latest National Family Health Survey that 83% of sexual abuse that has been faced by married women aged from 15 to 49 has been by their current husband[6]. The NHFS-4 has reported that 31% women have faced to sexual and physical abuse by their husbands.[7] Although the proportion of married women suffering physical and sexual violence at the hands of their husbands has come down from 37% in 2005-06 to 29% in 2015-16. According to NFHS-4 data, only a mere 14% seek external assistance when subjected to violence by her husband, which is down from 24% reported in the previous survey. Still in present scenario 42% of men and 52% women believe that it is justified of husbands to be violent against women even if the wife refuses to engage in sexual intercourse.

Most of the sexual violence cases that have been reported are by the women that are widowed, separated, divorced or women from other religion. The percentages of cases reported by this group of women are 13%.[8]

The Indian penal code criminalizes and mentions punishment for rape in section 375 and 376 but there is no section or provision specifically talking about Marital Rape.

However Exception 2 of section talks has a general marital rape exemption .The wording of exception 2 of section 375 states as-

“Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”[9]

The issue of the violence faced by the married girls of age between 15 -18 were brought up in the case of –“Independent thought v. Union of India” [10]

A PIL was filed under article 32 which drew attention this problem.. Section 375 of IPC mentions the age of consensual sex to be 18 years that means that any person can be charged for rape if he is having forceful sexual intercourse with a girl who is not above 18 or 18. But exception 2 of the same section mentioned that if the girl child is aged between 15 to 18 years is married the husband can have non-consensual intercourse with her. This issue when brought up before the court the court observed that it is violation of article 14, 15 and 21 of the constitution and that it is contradictory to section 5 and section 6 of POSCO act. So the court declared that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.[11]”

‘While the law does not provide any punishment for marital rape but it does criminalize specific part of marital rape i.e. when the husband and wife are not living together during judicial separation which is mentioned in section 376’[12]

In India there is no legal definition or provision defining marital rape however, the Exception 2 of section 375 gives an exemption of marital rape. This section indirectly legalizes marital rape.

The crime of marital rape is easy to talk about but there are uncounted numbers of women who face situations of hell daily at home just because they are married and they are women. The patriarchy, illiteracy and many other factors are the reason of this problem. Even after the efforts of government and different claw commission reports there is no change in the situation.

The Former Chief Justice of India says that marital rape should not be made a criminal offence.

“I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”[13]

The union of home ministry said that the concept of marital rape cannot be applied in India. The Minister of State for Home, Haribhai Parathibhai Chaudhary has said in a written reply that “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context owing to various factors, e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as sacrament, etc.” [14]

There is a dire need of change in the present situation. In the 21st century when women are leading with excellence in every field and standing at the same platform as men, some women feel unsafe in their own homes. It is the time to change.

Footnotes: [1] 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:— (First) — Against her will. (Secondly) —Without her consent. (Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married. (Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT [2] Sarthak Makkar, Marital rape: A non-criminalized crime in India ,1,January 2019, 1. [3] Saurabh Mishra &Sarvesh Singh, Marital rape - Myth, Reality and Need for Criminalization, 2003,2 [4] Id. [5] 1 Hale, History of the Pleas of the Crown, 629 (1778). [6] National Family health survey (NHFS-4),566 [7] Id. [8] Id. [9] Indian Penal Code, No.45,India code(1860) [10] Independent thought v. Union of India, WRIT PETITION (CIVIL) NO. 382 OF 2013 [11] Ibid [12] “§376B: Sexual intercourse by husband upon his wife during separation" Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of §375” [13] The times of India ,Marital rape needn’t be an offence: Ex-Chief Justice of India, Apr 9, 2019, 12:40 [14] RAJYA SABHA DEBATES, Discussion on the Indian Penal Code (Amendment) Bill, 2015, 53, Session Number 237, December 4, 2015, (Last visited on December 15, 2017) available at http://164.100.47.5/newdebate/237/04122015/Fullday.pdf

Submitted by,

Anavi Parnami,

B.A.LL.B.,

Symbiosis Law School, Hyderabad.