This article has been Written by ELAVARASI. P from THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY

Table of Contents

INTRODUCTION:

Marital Rape= Married/ Matrimonial+ Rape. Rape is considered to be the most heinous crime that should be eradicated from mankind. it is a common Term which is used to describe a man forcefully or abusively having a sexual intercourse with a woman without her consent or against her will. This is called as rape. it not only affects the body but also the mind. To prevent men from doing these heinous crimes there are many Laws which gives high punishment for rape. Those laws also defines what is rape and what constitutes rape., but they Don’t recognise the same in marriage. Have you ever heard of the term ‘Marital Rape’? The word marital itself means after the marriage or the process of marriage is Being completed .

Here the persons to the marriage officially become husband and wife. Sexual activity between husband and wife is quite common in marital relationship. Even though the husband is having a sexual intercourse with his own wife he must have the consent and will of the wife, Without that it shall be considered as rape that too is a marital rape. This article focuses on exploring what is Marital rape and it’s Harmful effects on the wife and also explores it’s global perspective.

WHAT IS MARITAL RAPE?

“Rape is a Rape, Even if it is done by Husband, it is Rape”.

Marital rape it is a term used to describe when husband forcefully has a sexual intercourse with his wife , the sexual intercourse is against the will and consent of the wife. it is done forcefully or using violence. Here the husband will use physical force or authority turns to use force on the wife or threaten her with any other persons or use violence to satisfy his sexual desires. This marital rape is very much common in all the families though it is common it doesn’t mean that it is right. many married women or sexually assaulted and raped by their own husbands to whom they share their lives happiness and trust.

WHY IS IT HAPPENING?

There is a common stereotype in the society that is when a woman says ‘no’ then it means ‘yes’. Husbands applies the same while having sexual intercourse with their wife. when the wife refuses to have a sexual activity with husband, they don’t even care about it And forcefully considered it as a consent. Most probably the marital rape happens due to various reasons such as;

1.Male dominance:

Husband as a rapist , rape his wife to show his dominance over her.
As India is considered to be a Patriarchal society where in most families male holds a dominant position in the family.
He dominates because he gives financial support and moral support
Stereotypes are like without male partner women can’t live safely and women are always dependent on her husbands.
This gave a advantage for husbands to have a forceful sexual intercourse with their wives.

2.Control:

Abusive husbands always want to control their wives.
They use their masculinity and have forced intercourse as a way to control their wives. Husbands don’t want their wives to be independent because they can go out of control and the sense of dominance will be lost.
They control their wives, physically, financially and even psychologically.
Husbands would make their wives believe that he loves her, and using violence or abusing is a way to express that love.
By doing so wives believes that such activities are common and correct and doesn’t want to end the relationship.

3.Petty marital problems:

Some husbands Always use violence as a means to win the conversation.
Sometimes they also abuse their wife and use violence when they have sexual intercourse.
Some of the research says that 20% of married women in the research undergoes marital rape whenever there is a problem arise between the couples.
Violently behaving and I having forceful sexual intercourse for a petty problems leads to psychological distress in the mind of women.
Here economic dependence of wife towards husband also plays a role. Due to this she can’t refuse her husband and bears all the abuse that he did to her.

4.Regular sexual needs:

Sexual activities between husband and wife are very common. It is said that marriage is a means for procreation of children and also it is to suffice the sexual needs of men and women.
regular sexual activity without the will of the wife can cause serious physical and mental issues to the wife.
it can also cause pain both mentally and physically.
by doing so the trust between the couples are also broken resulting in regular marital disputes and at worst case it can leads to the end of marriage or the death of wife.

5.Traditional view:

From the ancient to the present society there is a common norm where the woman marries a husband and stays in husband’s house. she has to carry on her marital duties obediently and perfectly. she has to make her husband happy, be obedient to him and carry on all the marital duties.
Whether in marriage or during sexual intercourse or any other activities the consent of women is very much less , more likely it is not at all obtained.
The rights of women are more deprived and they are like a toy in eyes of abusive husband.

All the above said can be considered as the reason for marital rape. Apart from these reasons there can be other reasons like raping his own wife for joy, sexually psychotic and etc.,

EFFECTS OF MARITAL RAPE:

There are many stereotypes in the society like women are born only to give birth to children and they shall only depend on their husbands and they cannot be independent. Some also says that married women must be obliged to his husband and fulfill all his needs despite any controversies. Despite all the above things Do you know what are the effects of marital Rape? . We can broadly divide it into two;

1.Physical Harm and 2.Mental Harm

1. Physical Harm:

Strictly speaking in India there are many married men who would abuse his wife physically like Beating (sometimes resulted in death) , slapping, that too in different forms. The physical Harm caused during marital rape include Pain and injuriesto private organs, irritation in muscles, difficulty in walking, soreness, bruising, HIV disease, urinary infections etc.,

If a women is pregnant and undergo forceful sexual activity it would result in miscarriages and sometimes can lead to death of both mother and child if violence is used in sexual activity.

2. Mental / Psychological Harm :

A woman who undergoes marital rape would likely suffer severe psychological effects that includes traumatic experience, Humiliation, low self worth, having trouble to sleep can result in insomnia, repeated actions may lead to anxiety, suicidal intentions, intense fear, depression, increase in stress level leads to many physical health problems.

The woman who doesn’t even know that they are raped by her own husband would have the effects of self doubting, self blaming, low self esteem, anger issues, Fear while having physical contact with any persons, and so on

LEGAL PROVISIONS IN INDIA:

The Indian laws clearly defines rape and it’s punishments. But what about Marital Rape?

Rape is defined in section 375 of Indian Penal Code and its punishment is given in section 376 of Indian Penal Code.
But these sections does not say forceful intercourse with a wife by his husband is a rape.
Section 375 of Indian Penal Code expressly says marital rape is not a rape.
This section also says that if a man forcefully has a sexual intercourse with his wife who is below 15 years then it shall be considered as a rape. But if the married girl is under 18 years of age but above 15 years of age and the husband forcefully has a sexual intercourse with with that girl then it does not amounts to rape. In 2017 supreme Court increases the age to 18.
Independent Thought v. Union of India (2017)

In this case the supreme Court of India Held that the second exception to section 375 is unconstitutional. The court said that the minors age must be below 18 and increases the age from 15 to 18.

RIT Foundation v. Union of India ( 2022)

This case is similar to the above case. Here the High Court held that the age of a minor must be 18 and above which the Forceful sexual intercourse shall not be considered as a rape.

By this we can understand that this provision does a great injustice to married women above 18 years. Not only the Indian law does not give any punishment to the rapist who is the husband but also it does not give any remedy to the married women who is a victim of marital rape. In India there is no expressly said provision that criminalise marital rape.

section 376 B says that if the husband forcefully has a sexual intercourse with his wife at the time of judicial separation then that should be considered as an offence and this is punishable upto 2 years of imprisonment and fine.
Section 498A recognises this act as a cruelty because it involves both physical and mental harm. Yet it doesn’t recognise it as marital rape.
Protection of Women from Domestic Violence Act ,2005 gives civil remedies for married women who are Sexually abused.
In India there is no way to seek criminal proceedings for marital rape against husband.

Because of many remedies already exists for married women like Section 498A of Indian Penal Code and Protection of Women from Domestic Violence Act ,2005 and various other personal laws that deals with marriage and divorce are there to give remedies for married women. Because of this the need for criminalizing marital rape is suspended.

But due to constant petitions on criminalizing marital rape the Delhi High Court in May 2022 gave a split judgment where one judge supports criminalizing marital rape while other oppose it.
In September 2022 The Supreme Court held that for the purpose of medical termination of pregnancy act the definition of rape should include marital rape.
The Criminalisation of marital rape is yet to be attained in India.

CASE LAWS:

Emperor v. Shahu Mehrab

In this case the husband was held liable under the Section 304A of IPC because he forcefully and negligently had sexual intercourse with his wife when she was pregnant. This causes the death of both his wife and his unborn child. Thus he is punishable under Section 304A of IPC.

Nimesh Bhai Bharatbhai Desai v. State of Gujarat

In this case the court said that marriage is not a licence for rape.it is a bond created with trust And love. the existence of marital rape itself is strain for the institution of marriage.

R v R

It is a England case law where the House of Lords abolished the exemptions on marital Rape and considered it as an offense.

Navtej Singh Johar v. Union of India

In this case the justice Chandrachud noted some important points about private sphere. He said that it is necessary to apply constitution in the private sphere of family. Thus we can consider that laws shall be made on marital rape even though it is within private sphere.

GLOBAL PERSPECTIVE :

Most of the countries in the world criminalised marital rape as it causes both physical and psychological harm to the wife. Nearly 150 countries criminalised marital rape while 34 countries decriminalised marital rape. India is one of the 34 countries.

Poland is the first country to criminalize Marital Rape explicitly.
Countries like United States of America and United Kingdom has explicitly criminalised marital rape.
In USA all of its 50 states have criminalised marital rape from the year 1993. The criminalisation laws and punishments for different states of USA differs from one another.
Similarly UK also criminalised the marital rape and it also gives the highest punishment of life imprisonment for those who are guilty of marital rape.
Countries like South Africa and Canada also made marital rape as illegal and punishable.
But, Countries like India, Indonesia, Sri Lanka and many others has not yet criminalised marital rape.

Reasons for criminalization:

On what perspective should we criminalize marital rape or spousal rape.? We should criminalized marital rape to protect all the followings;

Right to Dignity and life.
To protect Human Rights.
To protect women Rights
To create a healthy surrounding.
To protect women from violence and abuse.
To punish the perpetrators.
To give remedies to victim.
To give a safe and secured feeling for the women in their home.

SUGGESTIONS:

Many countries have already criminalized Marital rape by knowing it’s importance and to protect the women within married institutions. In India there are many institutions, organisations and foundations spread awareness about marital rape and the frequent and constant petitions before the court to criminalise the marital rape explains it’s importance. The government must provide awareness programs on Marital rape and implement laws on marital rape. Before everything it has to consider marital rape as a rape and give punishments to those perpetrators who violates the rights and dignity of women.

CONCLUSION :

“MARITAL RAPE IS A RAPE”. Marriage is a sacred bond it is made up of trust and love. Marital rape is a societal evil which must be condemned and punished. The societal awareness about marital rape must be conveyed through every possible sources. In conclusion to protect them dignity and right of all the married women within the institution of marriage recognising the marital rape and criminalising it would give invincible structure to the constitution of India. to protect all these the society also need to take significant role and promote Respect, consent, and dignity of the women.