The gray of marital rape
Rape has always been one of the biggest hurdles for our country. We are still fighting with this awful ill-practise against women of our nation. When we usually talk about rape, we always talk about a rape victim who isn’t married. We never discuss about rape that happens within a marriage. This is because marriages in India are considered as a sacrament. It implies that once a man and a woman are married, they both have consented to sexual intercourse for the rest of their lives. This is what we can call as an ‘implied consent’.
According to a United Nations estimate, approximately 75% of the married women in India are victims of marital rape. Based on this estimate, the UN Committee on Elimination of Discrimination Against Women had recommended India to criminalize the offence of marital rape. As of today, marital rape is still not a crime in India.
Before discussing about marital rape, let’s first understand what rape is. The word ‘Rape’ originates from a Latin word ‘rapere’ which means ‘to seize and take away by force’. In common terms, rape is a forcible violation of woman without her consent. It is coercive and an act of violence against the private person of a woman. Rape is not just confined to the physical abuse of a woman; it leaves behind deep scars that which can destroy the persona of that woman.
Whenever we talk about rape, we usually have the propensity to think about the offender being a stranger. This is because we would never a person who’s in close proximity to the victim could commit such an offence. Marital rape is hard to deal with merely because the offender is someone the woman knows and trusts. Marital rape is not just a one-time act. Various surveys show that women who have been raped by their husbands are victims of such an act for over a period of time. Since marriages in India are considered to be sacred, the reported cases of marital rape are very less in number. Women have been made to believe that once they are married, they are supposed to surrender to their husband’s needs. They are supposed to succumb to the sexual desires of their husband irrespective of the fact that they have an equal right to refuse or that her husband might be tormenting her or exploiting his rights as a husband. In our society, it is generally assumed that a woman must be obliging to her husband in every possible way.
Men here think that they don’t need to ask for permission and are free to impose themselves on their wives just because they are married. They think marriage is a kind of a license that permits them to force their wives to have sex and that the same wouldn’t be termed as rape. Majority of the women subjected to marital rape do not come in front and complaint about the same because of a lot of reasons like loyalty towards the family, financial dependence on the husband, future of her children and the fear of losing respect in the society. Another major reason for not reporting such a heinous crime is the lack of a proper law that recognizes marital rape as a crime.
Marital Rape – Indian legal system
While most of the advanced nations have penalized the crime of marital rape, there is no law to protect a married woman against rape by her own husband in India. Even after the recommendation of the UN, India has failed to criminalize the offence of marital rape. Legislations concerning marital rape are either esoteric or open to interpretation by the courts. The offence of marital rape has been excluded from the provision of rape under the Indian Penal Code. Section 375 of the IPC defines rape with 6 descriptions and an exception. The exception under the section states that “Sexual intercourse by man with his own wife, the wife not being under 18 years of age, is not rape.” The law refuses to recognize marital rape as a criminal offence. Marital rape will be considered as an offence only if the wife is below 18 years of age. There is no legal protection for a woman above 18 years who has been raped by her husband.
Apart from this, the Protection of Women from Domestic Violence Act, 2005 considers marital rape as a form of domestic violence. Marital rape is covered under ‘physical abuse’, ‘sexual abuse’ and ‘verbal and emotional abuse’ under Explanation I of Section 3 of the said act. Under this act, a woman who has been raped by her husband can obtain judicial separation from her husband for the offence of marital rape. The legislature and the courts are still including marital rape under the blanket of ‘abuse’. The logic behind this blanket is that in our country, the consent to marriage includes a consent to indulge in sexual activities.
Marital rape is not just an attack or violation of a woman’s body, it also violates her right to privacy and her right to live with dignity. Just because a woman is married doesn’t mean she would have to submit to sex at the wish of her husband. A consent to indulge in sexual activities does not imply that the woman is consenting to being inflicted with sexual violence. Consent for any kind of a sexual activity is a sine qua non, i.e., an essential condition.
Due to the lack of a proper legislation, the offence of marital rape is open to interpretations by the courts. Gujarat High Court in its 2018 judgment observed that ‘destructive attitude’ which promotes rape in a marriage can be removed only if the offence of marital rape is made illegal. The court stated that the husband cannot be prosecuted for the offence of rape because Section 375 of IPC does not cover marital rape. Justice J B Pardiwala said – “the total statutory abolition of marital rape is first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that marital rape is not a husband’s privilege”.
Extending the scope of marital rape, the Delhi High Court had observed that “marriage does not entail a natural lease of life-long consent to have sex or demand it from your partner”. The court stated that in a marriage, both husband and wife have a right to say ‘no’ to physical relations. Furthermore, the court ruled that being married does not mean the wife is always ready for sex.
As I’ve discussed above, marital rape violates a woman’s right to privacy and her right to live with dignity. The offence of rape is not just a sexual offence, it is an act of violence and hostility which is aimed at demeaning and disgracing a woman. It disturbs the normal routine life of a woman. They experience humiliation, guilt and depression because of the trauma. Exemption of the provision of marital rape from IPC or any other law is violative of the provisions of Article 21 of the Constitution of India. Any legislation that violates a woman’s right to live with dignity and also gives her husband a right to force to have sexual intercourse without her consent is unconstitutional. The Constitution under Article 21 also guarantees a Right to Privacy. Any form of sexual violence is an infringement of a woman’s right to privacy. Every woman has been granted sexual privacy and no person can violate her privacy without her valid consent as per his wish and convenience.
I feel that we, as a society and as a nation, shouldn’t discriminate the offence of ‘rape’. A rape of a married woman is as heinous and unacceptable as that of an unmarried woman. We shouldn’t classify a rape victim just because she is married to the man who raped her. I believe the intention behind men not wanting to recognize marital rape as a criminal offence is because they don’t want to give their wives the power to say ‘NO’. Marital rape is more traumatizing because the offender is a trusted person and even after the offence has been committed, the victim has to live with her assailant daily. The need of the hour is to criminalize the offence of marital rape and bring an affirmative change for the plight of women in India.
 Nimeshbhai Bharatbhai Desai vs State Of Gujarat R/CR.MA/26957/2017