Marital Rape – A form of domestic violence and sexual abuse.

Introduction to marital rape

It has been 70 years of our independence but women in our country are still living in fear and dark and more steps for their improvement are yet to be taken. Marriage is considered a sacramental union between the two parties i.e. husband and wife. However, in Indian law marriage is considered to be a license of sexual intercourse and in all the personal law it has been considered that the main object of marriage is to making of a sexual relationship between two parties.

In our country it has been assumed that if a man and woman are marrying then it means they have already consented for having a sexual relationship, marriage is considered as implied consent for sexual intercourse. But we have to understand that the expressed consent of both parties is necessary and if one party denies then the other party cannot forcefully put his/her will on the other party.

Marriage is considered to be the authorization of consented sexual relationships and it should not be and it is not an authorization to rape. Marital rape is not recognized as an offense under Indian Law because the sole purpose of marriage in our country is considered as procreation of children and the promotion of family.

In our society it has been considered that fulfilling all the needs of her husband is the first duty of wife whether she wants it or not, if the husband wants then she has to do this is the mentality of our society and due to this thinking and culture women are tortured and exploited by husband and they face mental torture and cruelty by the husband as well as physical torture but our law and order have provision for only mental cruelty and physical cruelty and marital rape is excluded from INDIAN PENAL CODE, 1860.

Exception to section 375

The word RAPE in IPC defines under section 375 but the second exception to this section excludes the rape by the husband of his wife if she is not under the age of 15 years, this section says that sexual intercourse or sexual act of a man with his wife not under the age of 15, is not rape.

This exception to section 375 is violative of article 14 because this section distinguishes between women of one age with another woman. Law should not make difference between women based on their age and rape is rape whether it is of married women or a girl child or a girl student or an old woman.

The second exception also infringes Article 21 of the constitution which says about the right to live with human dignity. This exception infringes on the fundamental right of women i.e. right to live in a healthy environment, right to privacy, and right to bodily self-determination.

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Another question that is the question remains is of consent if she expressly said no then no means no. marriage should not be taken as implied consent for sexual intercourse and the wife is not the separate property of the husband so her consent for making relationships is essential and it should be considered whatever the answer is it should be respected. Many women have suffered this offense and at present many are suffering from this.

Many countries in the world like Australia, Canada have recognized marital rape as an offence and violation of human rights but India is among one of the thirty-sixth countries who have not criminalized the marital rape. India is yet to recognize the same. Many women are victims of marital rape but they don’t seek any help from the law because of the two reasons where they would go if their husband will dessert her and secondly how they will face the society.

The pressure of society has put so much stress on them and they think society will abuse them and call them that they have failed in becoming a good wife. According to statistics obtained by one survey very less number of women seek the help of law in this kind of offense and our government has denied that marital rape occurs.

From 664 cases registered of women who have faced and reported domestic violence in 2015 at NGO Sneha’s crisis counseling center in Dharavi, 159 women also reported, among other issues like marital rape. And at other hospitals also hospitals like KEM and Sion hospital calculating their number 218 cases of domestic violence have been reported and among them 64 reported of marital rape.

Many cases of marital rape come to the hospital but they merely get registered because our criminal code excludes it from the definition of rape. The basic difference between rape and consensual sexual intercourse is that the former have no consent of the women and it is imposed upon her against her will and later has the consent of her.

Rape is rape whether it is done by a husband or stranger if it is done against her will then it will be considered as offense and whoever is the person and whatever the relationship they share is the same and victim should get justice and the offender should be punished for the act.

Marital rape is a Non-Criminalize offense but it has been criminalized in certain judgment and by taking this judgment as a base the legislature should make a provision for this offense for safeguarding the safety and security and fundamental rights of married women. Various judgment was given by a various court concerning marital rape are as follow-

Important Judgements related to marital rape

In NIMESHBHAI BHAVESHBHAI DESAI V/S STATE OF GUJARAT on 2^nd April 2018.R/CR.MA/26957/2017  CAV JUDGMENT

In this case, Gujarat High Court recognized and said that Marital rape is in existence in India, a disgraceful offense that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.

Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.

The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors on 28 January 2000

Physical, sexual, and psychological violence occurring in the family including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence, and violence related to exploitation;

Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

Sudesh Jhaku vs K.C.J. And Others on 23 May 1996

In the past the law of rapewas concerned with the theft of virginity and was there primarily to protect property rights [See: S. Brownmiller Against Our Will (1976), pp. 23-30; Bracton, the Laws and Customs of England, Vol. II, F.O. 147]. Redress lay in financial compensation.

Conclusion

According to Bracton, [ibid] even in the thirteenth century when penal sanctions for rape, imposed by the King’s Court were supposed to have supplanted pecuniary compensation, in practice, financial compensation continued to be paid. Even today the purpose does not seem unequivocal to be the female’s right to her bodily integrity. The fact that marital rape is protected, whatever be the considerations, is a pointer towards that.

Nikita Jaiswal

(Writer, The Legal State)