By Aparna Menon, Government Law College, Mumbai.
Marital rape, a contemporary term which means sexual perversion extended by the husband on to his wife without her consent in the due course of their legal marriage. It is non consensual intercourse obtained by the man with his wife through force, threat of force, violence in case of absence of consent of the spouse. This is a battering/sadistic or an obsessive form of sex which propagates masochistic ideas in the society and marital rape is one of those forms which has been evading the Indian Penal Code and hence, is not punishable.
Catering to some statistics, The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed, occasional wife-beating to be justified.
During the 1600s , Sir Mathew Hale, Chief Justice in England in his most renowned work wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” Therefore , looking over the view of such eminent jurists , it doesn’t come as a surprise to us that there were no laws governing marital rapes and this has never been a matter of concern to the judicial systems across the world .
The ranging figures of marital rape and domestic violence have now paved way for rising concerns regarding them in the society followed by feminist movements to protect the fundamental rights of married women. Countries like New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia along with 3 Australian and 18 American states have declared marital rape as a severe offence under their laws, whereas India, having such high crime rates with regards to rape and sexual assault has failed to address marital rape as an offence .
The concept of marriage has been a sacrosanct institutional one from the time of its very existence in the country. It has been defined as a bond of trust, affection and faith. The absence of consent on the part of the wife and extended perversion in the due course of marriage and hence, non consensual forceful penetration defeats the very essence of marriage. Also, this violates the basic fundamental rights of life and liberty of a woman in the country. Despite of amendments to the rape laws in our nation and new law commissions, marital rape is an issue which has evaded the eyes of all further worsening the status of married women in the society .
The Indian Penal Code, Section 375 explicitly states that “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Moreover, Section 376 of the Indian Penal Code talks about the punishments for rape where in a rapist shall be punished for at least 7 years or in some cases 10 years or lifetime imprisonment. This section also states that a husband can be punished for marital rape only if the wife is under the age of 12 and hence can be sentenced a 2 year imprisonment, fine or both. Ironically, the legal age of marriage for any women in our country stands at 18 years. Therefore, a female between the age of 12-18 doesn’t not have protection from such an offense, though she is married at a very young, impressionable and unlawful age.
One of the respites available to married women is Section 498 of the IPC-A which protects them from perverse sexual conduct by the husband. But the very flaw in this section is the vagueness and ambiguity regarding the meaning of ‘perversion’ and ‘unnatural’ which makes it difficult for the judiciary to understand due to the absence of a standard measure and hence, resulting into competent judgements. The interpretation by the courts is subjective and hence, differ from case to case and court to court.
A woman in India is imaged as a goddess in the temples and holy books, known for her courage and bravery. She, being as powerful as any other male-Gods in our holy books. But, at the same time, a woman in India can be imaged as a puppet in the hands of her husband post her marriage, where in her individuality to do or not do something burns down into ashes as the ceremonial flowers and grants in the marriage pier. Her right to life and liberty which is ensured to every individual of the country by our constitution becomes questionable, because her consensus to succumb to her spouse’s physical overture has no value and hence, her individuality and freedom of choice is subdued forever.
The Nirbhaya case, which had led to a number of reforms under rape law for facilitation of justice and equity also didn’t not mention any reform of marital rape. In a patriarchal society like ours, where women are told to stay covered for men to not rape them, where men believe to be superior over women and intend to impose restrictions on them to highlight their exclusive rights of freedom and power, legalizing such a sin is not only unjust but also deepens this filthy mindset and promotes masochistic and patriarchal ideas in our society .
The 172nd Law Commission has made various recommendations to the legislature over rape laws which consists of the following:-
- ‘Rape’ should be replaced by the term ‘sexual assault’.
- ‘Sexual intercourse as contained in section 375 of the IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
- In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
- Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
- A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
- Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
- Marital rape: explanation (2) of section 375 of the IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
- Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.
Marriage is a sacrosanct concept which doesn’t thrive over sex and physical intimacy that shall be obtained by the husband even in the absence of consensus. It is rather a tie of two individuals who bond in faith and trust, retaining their individuality thereby not denigrating the status of any under any circumstances.
 Amitabh Vikram Dwivedi, Rape In The Metropolis: The Geography Of Crime In Delhi, Glocalism: Journal Of Culture, Politics And Innovation 6 (2014)
 Sir Matthew Hale et al., Historia Placitorum Coronae (1847).