CRIMINALIZING MARITAL RAPE IN INDIA: A LEGAL BLIND SPOT

Author: Suman Chettri, J.B Law College, Gauhati University

Marital rape in India is not an offense. Marital rape is an important concept  not just  for the protection of the women but the strengthening of the whole society as a whole. Though there are various national and international legislations which protect women from every angle ,yet legislation regarding the marital rape remains an untouched rather ignored topic. This study examines the importance of criminalizing marital rape, the challenges that may be caused for its implementation , the historical factors, the consequence or the disadvantages that may be caused after its implementation. India's absence on this legislation brings it in contradiction with the international treaties. It supports the filling up of the legal blind spot, dispelling  all the myths and educating people. 

According to Hindu Law, marriage is a sacrament, a union, an indissoluble union of flesh to flesh, bone with bone, to be continued even in the next world.(Tikait v.s. Basant Kumar) Marriage in India has always been considered sacred and it is assumed that  no wrong can be possibly done in this pure relationship. Thus, this mentality has given immunity to the men who abuse their wives sexually or, to be accurate, raping her! The mentality that marriage gives the right to do anything to a woman, whether it's abusing her physically, mentally or sexually. 

“The total; statutory abolition on the marital rape is the first necessary step in teaching societies that dehumanized treatment of woman will not be tolerated and that marital rape is not a privilege , but rather a violent act  and an injustice that must not be tolerated”( Hindustan Times, 2015). Though the marital rape is not recognized in India, in simple terms it means an unwanted intercourse by a husband on his wife, obtained by force or by the use of violence or threat to use violence when she is unable to give the consent(Shrivastava,2013). Marriage till date acts as a license to the so-called superior patriarch to abuse the women’s body in any way he wants without the fear of being punished. Tyranny begins when law ends and in a condition where there is no legislation at all in this area, women feel nothing but helpless and hopeless.

IS Non criminalization of marital rape is creating legal lacuna?

 Indian society has always been male dominated. Patriarchy has run in the blood of Indian society since centuries. Women have always remained a chattel for men. Women should obey whatever men say, shall oblige them on their fingertips, has been running in the mindset of Indian society. From the menstrual stigma to education to everything, women have always been subjected to discrimination and marginalization. The stereotype that the world is run by men is deep rooted in Indian society too. Indian women have seen practices like sati where women had no right to live if the husband dies not only shows what situation women had faced but also how unsafe women were in Indian society. The concept of marital rape is not a recent concept but has been prevalent since centuries and relatively in more heinous way. The fact that women had to fight for their basic right to education gives us an overview that marital rape remained a distant topic to be expressed. Though in India women did not have to fight for the right to vote but this right came like a bed of roses is also very wrong. The women worldwide had to struggle to get this right in their favour. Hence, Criminalization of marital rape is no less than a herculean task to be implemented in India. The society where victims of rape are given justice after waiting for years and years, criminalization of marital rape seems like a dream. 

It was only on the 20th century onwards that there has been growing international conventions and voices against the sexual violence in marriage. Inspite of it the legalization of marital rape has been under ambiguity in many nations. Marital rape is not a concept which has emerged in recent times but it is as old as the system of marriage itself. The society which we live in had the mindset that the women had no rights and integrity of their own and were considered as an object to fulfil pleasure. This theory is still relevant in the countries which have not criminalized marital rape and India is one of them. After many years the legal system formed Penal Codes which recognized rape, which India recognizes, and slowly criminalized marital rape too but, India is not one of them. Countries like United States, Poland ,England, Canada, Australia have criminalized marital rape. Now in India, voice for the same is growing. There are arguments on both for and against. Some says that marriage is itself a contract and gives license to have intercourse with or without consent while other says that rape in any form is a rape.

Most of the laws in India were made by the Parliament of England. In England too it was only in 1992 in the case of R v.s.R where the court considered it as illegal and one can be given imprisonment up to 9 years and in extreme cases, life imprisonment.

In Australia, in 1976, Mr. Peter Duncan introduced legislation according to the legislation given by the Mitchell Committee. Since Australia has seven federal states and thus the punishment differs in all seven states. 

In U.S. in the case of 1976 of Nebraska became the first to recognise marital rape and before that the concept of consent is irrevocability was present. By 1993, marital rape was a crime all across the 50 states of U.S. 

In India, marital rape is not considered a crime and husbands are free to have any kind of sexual violence with wife because the so called marriage gives them irrevocable right. It's ironic that people in India worship Devi and call women as Lakshmi, talk about how women should be protected in malls, transports, and public but hesitate talking about how unsafe women are in their own homes, within their four walls, with their nearest. Though the Domestic Violence Act, 2005 has given some protection to women against the violence in their own house hold, however, it has not been able to add marital rape in its ambit. Though marriage gives the right to have intercourse  but the thing that should be focused here is that it should not wither away the right of a woman to say "no". According  Section 375 in The Indian Penal Code, 1860

375. Rape.—

A man is said to commit "rape" if he—(a)penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or(b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or(c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or(d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person. In Exception II, sexual intercourse with a wife, not below 15 years, is not rape .Hence women in India do not have remedy on this basis. The figure or the increasing number of marital rape is alarming. These factors are giving rise to the divorce rates, and when no other option, murders and other heinous crimes.Though India has ratified the CEDAW Convention where in it has been said to remove all the exemption relating to marital rape  but still there has been no active effort on the part of its government to implement it. 

Figures show that approximately 10-14% of women are raped by their husband in US. Approximately one-third of women report having unwanted sex with their husbands.Women are not only subjected to vaginal sex oral and anal rape. Researchers generally categorise marital rape into; force only rape, battering rape and sadistic rape. Study shows that about among married women from the age of 18-49, who have experienced sexual violence, 83% report their current husband and 13% report their former husband as perpetrator. According to the National Family Health Survey  of 2019 to 2021, 29%women spousal sexual or physical violence and this percentage could be much higher in reality. The case of 2017 regarding the marital rape is still pending in the Supreme Court.

 One of the recommendations of the Justice Verma Committee that was set up after the Nirbhaya case described above was that marital rape be penalised. (Verma Committee Report, 2013). In 2014, the Special Rapporteur on Violence Against Women also recommended “the amendment of Criminal Law (Amendment), Act 2013 [to] include a definition of marital rape as a criminal offence”.42 In 2015, the Pam Rajput Committee appointed by the Government of India to study the status of women in India strongly recommended that marital rape be criminalised and argued that marriage does not presume consent.

Marital rape is violative of Article 14, 15,21 of the PART III of the Constitution. Equality should not be taken for granted because one is married. Article 15 speaks about the special provision for women and children and marital rape is one of such area where provisions have to be framed. Article 21 gives everyone not just the right to live but to live with human dignity. The dignity of a woman should not be compromised just because she is married. In fact marriage should be that relationship where the women should receive all the dignity, protection and respect. 

1) Despite criminalization of marital rape,  conviction rate remains much lesser (5 to 10 %)

2) A survey in Malawi showed that 48% of the women still believe that men have the right to intercourse anytime.

3) In Nepal though marital rape was criminalized in 2002 but a survey in 2020 showed that the authorised government officials would turn blind eye to such victims and often recommend them counselling.

 Though there is still lot to be done, governments are taking measures to create awareness like-

1) Australia’s NO MEANS NO campaign has increased the number of reporting by 30% indicating better awareness.

2) Gender sensitization modules are helping in the higher conviction rates. 

3) Shelter homes have been created in many countries to give a safer environment to the victims.

4) Fast track courts are working to deal  against sexual offences.

FEAR FACTORS OF CRIMINALIZATION OF MARITAL RAPE 

1) Weak enforcement: There is an implementation gap due to police apathy and judicial insensitivity.

2) Criminalization may be protested against by the conservative sections of the society. The voices may be crushed more and they might be coerced to remain silent.

3) It is often argued that the law could possibly be misused during the times of divorce and child custody. It may further dilute the enforcement mechanism.

4) It is hard to prove the burden of proof because it is hard to produce  witnesses from the four walls of the room. While the victim may be staying with the perpetrator. Court may not further believe without the visible injury.

5) Critics argue that marriage is a private affair and interference would possibly bring overregulation. In marriage there are ups and downs, chaos and peace and the law on it could possibly be misused.

6) Women may face more backlash including domestic violence and economic abandonment.

7) The judges may not be trained in this area and might not be able to handle such cases. In African countries, less than 20% of the judges were trained in handling spousal sexual violence.

Since this is an alarming topic there are many studies, literature, papers, articles, journals which have discussed its importance and gravity of this topic. Similar ways and advice have been given. When one looks for the legal discourse, they share a similar view raising similar doubts as well. There were a few articles addressing the situation in India as well saying how the current laws are not fully adapted to the current circumstances.

The article relies on a secondary analysis of qualitative data, drawing on a range of existing sources including research papers, articles and other pertinent documents related to the topic. These resources form the essential data base for this study. Studying arguments made both for and against the topic is important as it helps to grasp the actual current situation putting aside any bias. 

Recently, in Ajit Kumar v.s. state of U.P , the  Allahabad High Court, said that “grabbing breast and opening pyjamas do not amount the preparation of rape”. The amount of insensitivity the judiciary holds makes it seem like a distant dream but better late than never. Criminalization is the first critical step but along with it the educational awareness, support of the society, support of the system, proper training of the judges, is equally important. Though there are many arguments against its criminalization, from the legal point of view, it is irrelevant. Marital rape is clearly a crime and it is against the constitution, against the principles  of human rights, immoral and needs an urgent attention. Marriage should not be a defence to any crime against women. The reason behind not criminalizing marital rape is deep rooted in the patriarchy mindset of the society and bound by the so called “duties” of the wife .Removing of the Exception II of 375 needs both policy and institutional support.   The government of India use the term “excessively harsh” to criminalize the marital rape. Thus, Non criminalization is  creating a deep legal lacuna in the developing country like India.Despite of the hardships, it is hereby proposed for the criminalization of marital rape and implementation of the legislation for the same. The society can only progress when the women in it are safe, the whole nation strives when women are strong.

1. Raquel Kennedy Bergen & Elizabeth Barnhill, Marital Rape: New Research and Directions (Feb. 2006), VAWnet (Nat’l Res. Ctr. on Domestic Violence), https://vawnet.org/material/marital-rape-new-research-and-directions .

2. “Marital Rape: Most Married Women Are Sexually Abused by Their Husbands, Says NFHS Data,” The Hindu Businessline (Oct. 2023), https://www.thehindubusinessline.com/data-stories/data-focus/marital‑rape‑most‑married‑women‑are‑sexually‑abused‑by‑their‑husbands‑says‑nfhs‑data/article65409875.ece .

3. The Hindu Marriage Act, No. 25 of 1955 (India), May 18, 1955, https://indiacode.nic.in/handle/123456789/1560?locale=en .

4. Muslim Personal Law (Shariat) Application Act, No. 26 of 1937 (India), Oct. 7, 1937, https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf .

5. Law Review Article, “Marital Rape and Law,” Manupatra (2024), https://articles.manupatra.com/article-details/Marital-Rape-and-Law .