Marital Rape-Whether Marriage Signifies Consent to Rape?

Aug 29, 2020

The word ‘rape’ has been derived from the Latin term raptus which states, the act by one man of damaging or destroying the property of another man. Here, property primarily referred to wife or daughter of another man. India is one of the thirty-six countries that have not criminalised marital rape. If we understand the root cause of this issue, it can be traced back to 1860s when the Indian Penal Code was drafted, during this era women were considered as chattels of their husbands. Unlike, the Vedic period, women are not were not given equal status as men. Patriarchal status has been rigid since then. During the British Colonial Rule, India was deeply influenced by English laws. In the colonel period, there was a deep influence of Victorian era, patriarchal norms did not recognize men and women equal, women were not permitted to own property and not have a separate identity from me, this is known as Doctrine of Coverture. Marital rape is defined as an unwanted sexual act by the spouse or ex-spouse, committed without consent and/or against a person's will, obtained by force, or threat of force, intimidation, or when a person is unable to consent. There are various types of rape, including battering rape, force-only rape, and obsessive/sadistic rape. The exception (2) of Section 375 of Indian Penal Code, 1860, states that non-consensual sexual intercourse by a man with his own wife, if she is over fifteen years, does not amount to rape. This act basically shields men who rape their wives. This section is violative of the article 14 of The Constitution of India, which states equality before law, Article 21, which states no person shall be denied of his life and personal liberty except according to the procedure established by the law. 

On July, 2018, Delhi High Court Bench, stated that, marriage does not mean that a women is giving her consent for physical relationship. Marriage is a societal contract between two individuals. Both men and women have equal say and right in the marriage. The concept of consent has been evolving over the years. The basic mentality of people nowadays is that, if man and woman are married to each other, they have attained the licence of sex, irrespective of the woman’s consent. However, it is sad to say, but the harsh reality is that, the concept of concept of marriage is stuck within the area of sheets and blankets. The bench also observed that physical force is not the pre condition for rape, the husband can impose financial pressure for physical intimacy. Once a man and woman is in a wedlock, it gives equal right to both the parties to say NO, when they are unwilling to have physical intimacy.  

There has been many PILs, writs filed in various high courts and Supreme Court in India to criminalise marital rape, also, the Justice Verma Committee after the Nirbhaya gang rape case and murder, suggested to criminalise marital rape, but the mentality of the Officials, Authorities and Government is quite orthodox and CHUTIYA, because they say that the concept of rape cannot be applied in India due to wide spread of illiteracy, poverty, religious beliefs etc. have failed to protect married women in India from brutality by their husbands.  In the case of State of Karnataka V. Krishnappa, it was held that forced sex is unlawful intervention to one’s right to privacy. In Suchitra Srivastava V. Chandigarh Administration, it was held that women have the right to dignity, personal liberty with the right to choose her sexual partner. In another cases of Budhan Choudhary V. State of Bihar and State of West Bengal V. Anwar Ali Sarkar, it was held by the Supreme Court, that exception 2 of section 375 defeats the purpose of the section to punish the accused who engage in inhuman activity of rape, sexual assault etc.  

According to the data by The Indiana University Press, 1990, states that 1 in every 7 women who have been married has been raped in by their husbands.  According to United Nation, more than two-thirds of  women aged between 15-50 in India have been subjected to forced sex, beaten, tortured along with a demand for dowry. Many countries have enacted marital rape laws, repealed marital rape exceptions. Recently Indonesia and Turkey have criminalized the marital rape in 2005 and Mauritius and Thailand in 2007.

Rape is one of the most heinous crimes in today’s era. It is an immaterial fact that a women is married or not because raping a women is a serious and barbaric crime committed by either men or husband and both of them should be punished equally. However, it is difficult for a married women to escape abusive conditions at home because they are legally and financially tied to their husbands.  Marital rape should be covered under anti-rape laws in India because she should be allowed to protect her dignity. The official data on marital rape is meaner, activists and lawmakers maintain there is plethora of evidence to imply it is on the rise. If a woman marries, it should not mean that she has lost her dignity against her husband. She cannot be considered as a property of the husband. She should be empowered to say no, if she is not willing to have sex with her husband. Women today who suffer from such crimes must be made aware of their rights and the remedies available to them against such heinous acts. Women should raise their voice against such mistreatment backed by support from the society. Indian culture has always emphasized on equality, strength and not on abuse, control or power. Therefore it is expedient to the need for justice for women that the Indian judicial system criminalizes marital rape and includes it as a fault ground for divorce.