• Gaurav Kumar Yadav & Shikha Kumari

If the Body could Speak: Legal Rape in India i.e. Marital Rape


Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces.

- F.H. Batacan


“Rape is Rape, irrespective of the identity of the perpetrators, and age of the survivors. A woman who is raped by a stranger lives with a memory of a horrible attack, a woman who is raped by her husband lives with her rapist.“ The aforementioned paradox is not mere fiction but somethings which exists in the Indian Criminal Law. One of the most horrifying and repressive issues with the Indian legal is that marital rape is perfectly legal. The act of forcing your spouse into having sex without consent, is an injustice that is not yet uncommon way to demean and dislike. When a stranger does it, he doesn’t know me, I don’t know him; he’s not doing it to me as a person personally, with your husband, it becomes personal. You say, this man knows me, He knows my feelings. He knows me internally and then does so in order to do the same to me is "personal abuse”. In lockdown period SNEHA received 2,115 complaints from six months to August 2020, compared to 1,528 during the six months before March, a jump of 38%. Most of these (961) were complaints violence done by husband, after domestic violence (689). SNEHA is NGO who focuses on women health and violence done by intimate partner.


Marital rape is suppose to a form of domestic violence and sexual abuse. Domestic violence is a problem in India, and it has only escalate in recent years. About 70% of women in India are victims of domestic violence. National Crime Records Bureau (NCRB) 'Crime in India' 2019 report was worrisome but not statling. As per report, in India, a woman is raped every 16 minute, and every 4 minute, she experiences cruelty at the hands of her in-laws. Reluctant to have sex between a husband and wife, recognized as a criminal offense in almost every country in the world, India is one of the thirty-six countries that have not yet criminalized marital rape as rape. Around one in three (31.1%) Indian women between the ages group of 15–49 who have ever married said they had experienced violence from their husband according to the 2015-16 data of the National Family and Health Survey (NFHS).


Types of Marital Rape

Legal Scholars have identified, the following as three types of marital rape which is commonly practiced in society; first is bettering rape, second is force only rape, and last one is obsessive rape.


In 'bettering rape', women experience both sexual and physical violence in a relationship and they experience this violence in various ways. Some get beaten up during sexual violence, or rape can adhere physically violent episode where the husband wants to have sex with his wife and force her to have sex with his wife against her will and consent. Most of the cases of marital rape victims fall into this category. Force Only Rape is, where husbands use that amount of force which required to force their wives; bettering may not be feature of these relationships. These kinds of attacks usually occur after the woman denies sexual intercourse. Obsessive Rape is what is labelled 'seditious' or 'obsessive' rape; these kinds of attacks include torture and/or 'perverted' sexual acts and are frequently physically violent.[i]


Marital Rape and Laws in India

Government stands in Court on marital rape is that “criminalizing it will destabilize the institution of marriage”. Rape laws in our country continues with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian Constitution's Article 14. Lawmakers fails to understand that a marriage should not be viewed as a license for a husband to forcibly rape her with impunity. Married women have the same right to control their bodies as an unmarried woman. In 2017, a public interest litigation was filed by Independent Thought, a non-governmental organization, which challenged this inadvertent classification and claimed that this protection should also be provided to married women over 15 years of age. The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and women here implies that both have consented to sexual intercourse and cannot be otherwise. It violates Article 14 and Article 21 of the Indian Constitution, but Section 375 of Indian Penal Code is quite on Marital rape. Even though the definition of rape codified under Section 375 of the Indian Penal Code includes all forms of sexual assault involving non-consensual intercourse with a women.[ii]


Violation of the Fundamental Rights

Article 14 of the constitution provides that “the state shall not deny any person equality before the law or equal protection of the laws within the Territory of India”.[iii] The guarantee of ‘equal protection’ is a guarantee of equal treatment of persons in ‘equal circumstances’, permitting differentiation in different circumstances. This is what constitution provides equality to all but the Indian Criminal Law discriminates against female victims who have been raped by her husbands. Women was considered to be the chattel of her husbands at the time when Indian Penal Code was drafted in 1860.[iv]


In Budhan Chaudhary vs. State Of Bihar[v] the Supreme Court held that "the any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. To protect women and punish those who engage in the inhumane activity of rape.” Article 21 of the constitution provides that no person shall be deprived of his life or personal liberty except according to the procedures established by law.


Further, In the State of Karnataka vs. Krishnappa[vi] the Supreme Court said that "apart from being an inhuman act, sexual violence is the unlawful infringement of a woman's right to privacy and purity. In the same judgment, Supreme Court said that this non-consensual intercourse equal to physical and sexual violence." Also, in The Chairman, Railway Board v. Chandrima Das[vii] the Supreme Court states that "cases of rape violates the right to life and the right to live with the human dignity of the victim of the crime of rape. The Supreme Court said that rape is not just a crime under the Indian Penal Code, but a crime against the whole society.


In Bodhisattwa Gautam v. Subhra Chakraborty[viii] the Supreme Court said that "rape is a crime against essential right that is human rights and the violation of most cherished rights of victim that is fundamental rights, namely, the violation of the right to life in Article 21 of the Constitution"; and in Kharak Singh v. State of U.P.[ix], Govind v. State of Madhya Pradesh[x], and Neera Mathur v. LIC[xi] the Supreme Court has perceived that "a right to privacy is intrinsically ensured under extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. Any type of intense sex damages the right of protection, sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded lady's entitlement to protection by driving her to go into a sexual relationship without wanting to.” If any women after marriage faces sexual violence then it is the violation of Fundamental Right.


Lacunae in Indian Legal System

The Centre told the Delhi High Court that criminalization of marital rape can “destabilize the institution of marriage” and become an easy means to harass husbands. The Centre in it's affidavit also said that criminalizing marital rape may also lead to misuse just like Section 498A of Indian Penal Code, 1860 that deals with cruelty to a wife by her husband. This was the Central Government's response to petition filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape survivor, the petition challenge the exemption in Section 375 of Indian Penal Code, 1860.


The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exemption, and in a landmark judgement, the Supreme Court criminalized unwilling sexual contact with a wife between 15 and 18 years of age.[xii] Adding insult to injury were Swaraj Kaushal tweeted that; “There is nothing like marital rape. Our home should not become police stations. Also there will be more husbands in the jail than in the house." These tweets don’t only tells that force sex in marriage cannot be rape also makes fun of the issues.


In the lower house of Parliament the Centre was equally resistant to a 2018 bill introduced by Congress MP Shashi Tharoor in the Lok Sabha i.e., Women's Sexual, Reproductive and Menstrual Rights Bill, 2018, the bill called for criminalization of marital rape among other rights of women and later sought support from the government. In a written reply to a question in Parliament Maneka Gandhi said "the concept of conjugal rape being understood internationally cannot be applied in the Indian context for various reasons"; factors like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs (and the) mind-set of the society to treat the marriage as a sacrament.


The Justice Verma committee recommended removing the exception to Section 375 but this recommendation was rejected. A study conducted by the ICRW and UNFPA in 2014 in 8 states of India showed that "a third of men in those status admitted to having forced a sexual act on their waiver or their partners". The Justice Verma Committee also states that “for the empowerment of women and the achievement of equality, it is necessary to have a joint effort between the individual and the State”.


Conclusion and Suggestions

Marital rape should be recognized by the Parliament as an offence under the Indian Penal Code, 1860. Corresponding changes in the matrimonial laws should be made forcing women to do sex without her consent can lead to disempowerment. An analysis of NFHS 2015-2016 data indicates that an estimated 99.1% of the sexual violence cases go unreported and that the average Indian women is 17 times more likely to face. Sexual violence from her husband than from others. So, the punishment for marital rape should be the same as one prescribed for rape under Section 376 on the Indian penal code. The time has came to criminalize the marital rape, there is immediate need. But mere declaring marital rape is crime is not enough some more steps should be taken like sensitize police and judiciary and educate the masses at large scale about this crime.


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[i] D.K. Gosselin, Heavy Hands — An Introduction to the Crimes of Domestic Violence (Prentice-Hall Inc., 2000) [ii] Indian Penal Code 1860, s 375 [iii] Constitution of India, art 14 [iv] HLR, To Have and To Hold : The Marital Rape Exemption and the 14th Amendment (1986) 99(6) Harv. L. Rev. 1255,1256 [v] Buhdan v State of Bihar AIR (1955) SC 191(India) [vi] The State of Karnataka v Krishnappa (2000) 4 SCC 75 [vii] The Chairman, Railway Board v Chandrima Das Civil Appeal No. 639 of 2000 [viii] Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490 [ix] Kharak Singh v State of U.P. 1964 SCR (1) 332 [x] Govind v State of Madhya Pradesh AIR 1975 SC 1378 [xi] Neera Mathur v LIC 1991 SCR Supl. (2) 146 [xii] Independent Thought v Union of India (2013) 382 SCC (2017)


*The author(s) of this post are Gaurav Kumar Yadav from Faculty of Law, Integral University, Lucknow; and, Shikha Kumari from Career Point University, Kota.


Article Number: 2021/LKLR/06B13

 

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Journal.

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