Should Marital Rape be an Offence in India?
Should Marital Rape be an Offence in India?
“Marriage doesn’t make you happy, you make your marriage happy”
Marriage is a divine union amongst all the religion. In Hindu, bridegroom treated as shiv- Parvati. From the Vedic era, the marital union has been recognized with piety. A wife carries an honorary role in a family. The wife is ardhangini of her husband. Yet, in today’s society marital rape become a serious issue.
Just think today’s modern era, some married women are compelled to have sex with their husband without their consent? In India, most of the women are just used as a means of satisfaction by their spouses. As per the society, marriage is approval for rape. The mentality of people thinks that once a man is wedded, he need not take approval from his wife for sex with her. The patriarchal ideals grant the male the right to control his wife and the wife is deemed to execute her responsibility of keeping her husband happy. The society does not care about the wife’s wish, consents and feelings?
However, the ultimate truth is if a man has sexual intercourse with a woman without her permission then that is rape.
What is Marital Rape?
Marital Rape is the act of compelling a wife into having sexual intercourse with her husband without any consent. As per the National Crime Records Bureau’s ‘Crime in India’ 2019 report, about 70% of women in India are victims of domestic violence. As per the latest National Health and Family Survey (NFHS-4) for 2015-16, 5.4% of women have undergone marital rape. Marital rapes has been illegalizing in more than 100 countries. Under sections 375 and 376 of the Indian Penal Code, rape by a stranger is a criminal offence in India but not a marital rape is an offence. While various legal modifications have been inducted to the criminal law that protects women but the non-criminalization of marital rape in India still endangers the prestige and human rights of women.
Causes of Marital Rape:-
1. Dominance- Psychiatrist Dr Arun John a member of the Vandrevala Foundation pointed out the factors of marital rape. He stated that when the conflict between the spouse’s gains, the husband may try to contend himself by compelling himself upon his wife. In a try to one-up his wife, he will use the utmost weapon in his arsenal to demean and impair her. This way he is indicating his dominion over her and eradicating her privacy. By doing so, he is abusing what the woman deems most sacred.
While the act of rape is horrible, it is always the detailed process of abusing, assaulting and disrobing the victim that makes marital rape demeaning for the woman. The man needs to contend that he is stronger than the woman and his wife will be permanently at his mercy.
2. Sexual dissonance between the couple- Dr John stated that sometimes, the wife may not be interested in sexual intercourse for reasons that are obvious only to her and may reject her husband. So when the man is denied sex by his wife, he treats it as disrespect to his manhood.
Manisha Lomash, a worker in Dr Happy Life Counselling said that the female body is built to receive the sexual activity and the male body is implied to give. When the wife rejects sex, it could be because she has had a past of sexual abuse at a young age and may not esteem sex as a positive, pleasing activity. So she may not accept it the way the husband wants her to. He may then not feel accepted because he is refuted from executing the sexual act.
This may induce variance between the couple and the man, in a bid to overcome the embarrassment of sexual rejection, will force himself upon the wife.
Type of Marital Rape:-
Marital rape can be of several types. They are discussed below:
1. Threatened or Forced sex- In threatened or forced sex, the husband used force techniques to intimidate the wife into accepting his demands. He may compel her with terrible effects and physically compel his wife into agreeing.
2. Battering rape- As per the study conduct on marital rape in 1985, this is the popular form of marital rape. 48% of all marital rapes come under this category. As per the study, battering rapes were performed out of animosity, reprisal and embarrassment towards the wife. Many suffer verbal and physical abuse also undergoing this kind of marital rape.
3. Obsessional rape- This is one of the uncommon types of marital rapes. Obsessive rapes are noticed only in 6 % of marital rapes. In obsessional rape, men want their wives to accept unique sexual activities. These men have an obsession with sex and experience sexual arousal from pervert acts and by imposing pain on their wives.
Legal Framework of Marital Rape:-
The United Nations Population Fund declares that more than 2/3rds of married women between 15 – 49 years in India have been beaten, raped or forced to give sex. Yet, despite the increasing number of cases of marital rapes in India, marital rape is not interpreted in any statute or law.
The Constitution of India – The fundamental rights of the Indian Constitution ensures all the citizens of India regardless of their caste, race, gender, religion, place of birth.
Rape statutes in India are violating Article 14 and 21 of the Indian Constitution.
Article 14: Article 14 is enshrined the essential right to equality for every citizen of India. This means that every individual who is a citizen of India has the right to live a life of equality without any intolerance. Though, due to the mostly patriarchal confines of the Indian marriage laws. The Indian Penal Code still furnishes that a husband is freed from being accused of the act of rape on his wife, subject to the age of the wife. This is a precise example of the current standard being archaic and heavily favoured against women in India. Under the second exemption of section 375 of the Indian Penal Code, it has been provided that sexual intercourse by a man with his wife, if the wife’s age is more than 15 years, is not asserted as rape.
Article 21: Article 21 of the Indian Constitution ensures the protection of life and personal liberty of all people. A married woman in India has the right to live a life with dignity, right to privacy and rights over her body. Marriage can in no path take away these rights from her.
Indian Penal Code-The Indian Penal Code, 1860 is the major criminal code in India. It lays down the crimes along with its punishments. Section 320 of this code deal with grievous hurts that’s mean any hurt which endangers life. Section 321 of the Indian Penal Code deal with voluntary causing hurt that means Whoever performs any act which causes harm to any person, or with the information that he is inclined to cause harm to any person, and does thereby cause harm to any person, is said voluntarily to cause hurt.
Section 349 of this code deals with force. A person is said to use force to another if he causes action, change of action, or extinction of action to that other, or if he causes to any entity such action or change of action, or extinction of action as brings that substance into contact that other’s body, or with anything which that other is wearing or carrying, or with anything so positioned that such contact consequences that other’s sense of feeling. Provided that the person inflicting the action, or change of motion, or extinction of action, causes that action, change of action or extinction of action in one of the three ways hereinafter described.
Section 351 of the Indian Penal Code deal with the assault. Any person makes any indication, or any practice aspiring to or knowing. it to be likely that such indication or practice will cause any person present to comprehend that he who makes that indication or practice is about to use illegal force to that person, is said to engage an assault.
Section 375 of the Indian Penal Code deal with rape. A man is said to commit rape if he has sexual intercourse with a woman under some circumstances. That is if a man rapes women against her will, consent or attained by assigning her or any person in whom the women are interested in fear of death or hurt, at the time of her unsound mind or intoxication, she is incapable to understand the nature and outcomes of that to which she gives consent and with or without her consent when her age is under 16 years. In 2013, the United Nations Committee on Elimination of Discrimination Against Women approved that the government of India should illegalize marital rape.
The JS Verma committee also approved the legalization of marital rape after the consequence of nationwide protests over the nirbhaya gang rape case.
Marital rape is a terrible crime that is yet untouched by the legislators of India. Rape is rape, whether it is occurring by a stranger or a husband. The women in India are not a toy, the society and the government should understand that and the legislation should amend strict laws against marital rape. The women should know their rights even in India lots of women did not any idea that marital rape is a serious offence.
By Shreeparna Goswami
3rd year B.A.LL.B.
Shyambazar Law College.
 Happiness Quotes – Marriage doesn’t make you happy – you make…,https://www.marriage.com/quotes/216.
 Marital Rape in India, https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india.
 Government Denies Marital Rape Occurs, National Survey Shows 5.4% of Married Women Are Victims, https://thewire.in/gender/indian-law-denies-marital-rape-exists-5-4-married-indians-claim-victims.
 All you need to know about marital rape – leaders, Diganth Raj Sehgal,(Aug 9, 2020),https://blog.ipleaders.in/need-know-marital-rape/.
 Marital Rape: How Bad is the Problem in India and Why Coronavirus-led Lockdown Made it Worse, https://in.makers.yahoo.com/marital-rape-how-bad-is-the-problem-in-india-and-why-coronavirusled-lockdown-made-it-worse-030058552.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAMxh2-XFx1h5ihDMaUvtP2hhTVA5ana3w0NgD0j4pj3RVDcoUDy_PHvzltbh4DRG_h9cq6MwUqFVYYWmnLEx8rPrJzhyTYni-_ZgKBwNbuc30IuHwn2CfgYuBYnreme0QEDg3mN9LlVBvLOfr7cegU9PCTGToWyo5NGfD2X970jg.
 Indian Penal Code 1860 Bare Act.