Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.

“What is marital rape, how a wife can be raped by her own husband and why rape by someone is punishable but rape by husband is acceptable”? These are some of the questions that have aroused the concept of marital rape in India

India is the most democratic country in the world. The population of India is over 1.2 billion and is the seventh-largest country in the world. It is blended with various cultures, religions, customs, usages, languages etc. With the increment in population, the crime rate including crime against women is also increasing at an alarming rate. It has been said that the quality of a country is judged from the position given to women. In India women have never been given importance, their position is the same as earlier. Women are always considered inferior to men, which led India to develop with male chauvinist ideologies. Women are always subjected to criminal brutalities such as domestic violence, rape, sexual harassment, forced prostitution and trafficking. These are just part of the never-ending of crimes against women.

Rape is understood as a terrible kind of sexual violence against women in society. The word raped is derived from the word “rapio” which means to seize[1]. Rape is a brutal, heinous and shameful crime that down the dignity, chastity and pride of women. It is defined as unlawful sex with women without her consent. Supreme Court of India has defined as rape “gravest crime and deathless shame against the dignity of human”. It is an act of aggression and violence that denies the self-determination of the victim. In India rape is defined under section- 375 and 376 of Indian Penal Code.

Marital Rape also called Spousal Rape or Inmate Rape is defined as an unwanted sexual penetration or intercourse which obtained by threat of force, force or without the consent of wife[2]. It is sex by a partner with his better half without her consent or by danger. It is a form of domestic violence, sexual abuse and partner rape. Generally, women do not recognise sexual assault by their husband as rape as compared to the sexual assault by others and hesitate to report it. It is an implication that a wife cannot be raped by her own husband. Another implication is that it is not necessary to define rape with violent or unwanted sex rather it is illegal sex.

According to sacred scriptures of God, Marriage is an institution in which men and women are united into wedlock. According to ancient Hindu scriptures, no religious rites can be performed by men without the participation of his wife[3]. Marriage is such a socially and legally recognised union where the wife expects the respect, equality, faith, understanding, trust and love from the husband in the relationship. But the union of the soul is reduced to just for lust. Women are dependent on men in various aspects like poverty, illiteracy, family, children, myth, tradition, and education and if the wife grabs the courage to complain about rape in marriage than there is now law in India to recognise the rape in marriage.

In India, the sacred institution of marriage express the implied consent to sexual intercourse to hide the pain that is suffered by many married women saying that in marriage there is no rape. And according to our law, after marriage husband is given absolute licence to exploit his wife to any extent. But no part of wedlock permits the husband to have forcefully sexual intercourse with his wife. The wife should have right the right liberty to have sexual intercourse consensually or to refuse to have sex and cannot be forced by her partner to do it. Even today the Indian law system does not recognise marital rape as an offence.

The exception of section 375 states that sexual intercourse by a husband with his wife without her consent if she is above 15 years than the intercourse, does not amount to rape. Thus non-consensual sexual intercourse by a husband with his wife who is above 15 years does not come under the ambit of rape and allows a husband to exercise his marital right of undesired sexual intercourse with his wife.

At present scenario, many nations have either established laws for marital rape or have laws that do not give recognition to marital rape as well as ordinary rape. Marital rape is demonstrated as an infringement of human rights. In 2006, it was evaluated by 100 nations that marital rape is an offence under the criminal law but India was not one of them.

History

In ancient time, men who rape their wives were not liable to the punishments. The exception of marital rape came from 17th century when Sir William Hale with common law said that “a man cannot be guilty of rape of his lawful wife, by their matrimonial mutual consent and contract given by the wife, who she cannot retract.” This statement then became model in English law and was carried by English Colonies of North America. This model also called the Doctrine of Hale, declared in the case of Commonwealth v. Fogarty [4]that a married woman cannot be raped and was officially accepted by the American Legal System in 1857. Agreeing to the Hale doctrine, Blackstone developed the “Unities theory”. This theory states that after marriage a man and woman become one entity and the legal existence of the wife is suspended and the wife becomes the property of the husband during marriage. In the 18th century, it was believed that marital rape could not exist because a husband could never cause harm to his own property or commit a crime against his own wife.

 In the 1970s, the marital rape was raised as a serious issue by the Women’s Movement. Laura X was influential and published the murder trial of Judy Hartwell that broke the concept of irrevocable consent by allowing women to forcefully resist the sexual intercourse with their husbands. Then she led a campaign in California that criminalizes marital rape in 1978. Laura X than founded the National Clearinghouse on Spousal rape and Date rape to provide education and advocate to exempt the liabilities of marital rape.

Finkelhor and Yllo on the basis of marital rape classified states into three categories: absolute exemption, partial exemption and no exemption[5]. Absolute exemption states have no laws to allow marital rape, hence making it legal. Partial exemption state allowed marital rape in certain cases where the couples are living apart, divorced or legally separated. No exemption states have an absolute ban on marital rape.

Types of Marital Rape

Non- physical sexual coercion: In this rape offenders try to use a different kind of tactics to make their partner submit to sexual acts. This marital rape is important to consider because it occurs more often than other marital rape (threatened or forced sex). Finkelhor and Yllo defined two types of non-physical sexual coercion that offenders of marital rape use and they are interpersonal coercion and social or normative coercion[6]. Interpersonal coercion is when in the relationship husband uses his power to force his wife to satisfy his sexual demand. Social coercion defines the inherent responsibility to satisfy her husband even if she finds an act to be undesirable.

Battering Rape: 48% of the total cases of marital rape were classified as marital rape. This rape is characterised by verbal and physical abuse. In this rape, a woman in the relationship experiences both sexual and physical violence in various ways. Some are assaulted or threatened during the sexual violence or the rape may follow the episode of physical violence where the husband forces his wife to have sexual intercourse against his will. The majority of victims of marital rape fall under this category. According to Groth, anger rapes are committed by men as an act of retaliation, humiliation and hostility towards men.

Force-only Rape: 40% of the total case of marital rape were classified as a force only rape. The offender of marital rape uses enough physical force to control his wife and achieve their desired sexual acts. It is characterised by continuous controversy over sexual activities. In this rape husband only uses the amount of force which is necessary to threaten their wives. The threatening may include assault or violence generally after which a woman agrees to have sexual intercourse. This kind of rape occurs in a relationship where violence is verbal or where violence only occurs during sexual interactions.

Obsessive Rape: 6% of the total cases of marital rape is classified as obsessive rape. It is the most sadistic type of rape. In this rape, husband tortures their wives to have sexual intercourse and are physically violent. The husbands are generally obsessed with sexual activity and are characterised by unusual sexual activity such as the use of pornography and bondage. Offenders of marital rape experience self-absorption with sex and experience sexual arousal from pain inflicted on the wives.

Effects of Marital Rape

It is believed that if a woman is raped by her own husband than it less traumatic for her, but it is a myth. A woman after marital rape is affected drastically[7]. According to research, it has been found that marital rape causes long-lasting and severe consequences for women because of the fact that she is raped by her own husband and not by any stranger. She is raped by a person with whom she expected to spend her whole life with dignity, trust and happiness.

The effects of marital rape on women can be classified into two categories:

  1. Physical effect: Physical violence during rape cause physical health effects on the woman. The physical effect may include injuries bruises, injuries to the vaginal and anal areas, lacerations, torn muscles, soreness, fractures, fatigue and vomiting. Women who have been raped by their own husband may suffer from other physical consequences such as broken bones, blackened eyes, bloody nose and wounds inflicted on her body by any sort of weapon, during sexual violence. According to the report of Campbell and Alford in 1989, there is one-half of the survivors of marital rape who were kicked hard, hit, or burned. Except for physical consequences, there are some gynaecological consequences including anal tearing, vaginal stretching, urinary tract infection, pelvic pain, stillbirths, miscarriages, sexually transmitted disease such as HIV/AIDS, infertility, bladder infections. Women due to their inability to use contraceptives because of forced sexual intercourse by their husband may get unwanted pregnancy. Researchers have also found that marital rape is the factor of homicide and suicide. It was also found that women who experienced intimate partner physical and sexual violence were developing cervical cancer and cervical dysplasia than women who experienced physical violence only and no intimate partner violence.
  2. Psychological effect: Women who are raped by their husbands are likely to suffer from depression, multiple assaults and completed sexual attacks than the women who experienced physical violence and those who were sexually assaulted by some strangers, not their partners. It is not surprising to know that marital rape survivors are likely to suffer long term psychological consequences because they are raped by someone whom they have trusted and loved. The long term psychological effects include sleeping problems, disordered eating, sexual distress, negative feelings and distorted body image. There are some short term effects of marital rape such as shock, anxiety, depression, intense fear, disordered sleeping, suicidal ideation and post-traumatic stress disorder. Researchers have also found that the psychological effects of marital rape are long-lasting.

Concept of Marital Rape in Other Countries

Marital rape is defined as forced sexual intercourse with the wife by her husband. Some countries have considered marital rape as an offence but the other countries still refuse to accept it as a crime but it is against the sacred institution of marriage.

England: Till present, the general rule as per Sir Hale’s theory in England was that a husband cannot be held guilty for the rape of his own wife and was exempted from the liability of raping his wives because of the understanding that marriage means to consent to sex. But this exemption of marital rape was abolished by the Appellate Committee of the House of Lords in the case of R v. R[8]where it was declared by the five Law Lords that husband protection from a charge of rape of his wife is not part of English law and held the exception to be void.

USA: Marital rape is non-consensual sexual intercourse between couples and it has always been illegal. In the USA the exemption of the concept of marital rape was followed that allowed men to rape his wife without any legal consequences. But the turning point came after the case of People v. Liberta[9]where it was held that marital rape and non-marital rape cannot be differentiated for any reason. The court also noted that a marriage licence cannot be viewed as a licence to rape wife forcefully with impunity. All states have recognised marital rape as an offence. The only marital exemption that still exists is statutory rape.

South Korea: It is one of the recent countries to criminalise the concept of marital rape. The Supreme Court in 1970 held that there cannot be rape between husband and wife, but this view changes with the passage of time. According to Korean Dictionaries, the word for rape is “ganggan” which means forcible non-marital intercourse (geranium). But the Supreme Court elucidated the meaning of ganeum and held that wives will also be protected by the rape laws.

Nepal: In 2002, the Supreme Court held that sexual intercourse without the consent of the wife is punishable by law.

Still many countries like Bangladesh, India, Australia, Pakistan, Yemen, Canada, Egypt and Iran have not recognised marital rape as a crime. But in the countries where it is offence, the burden of proof lies on women.  It is difficult for them to prove that she has not given her consent to have sexual intercourse.

Marital Rape in India

In India marital rape is not an offence. It exists as de facto and not as de jure. Enactments to marital rape are either esoteric or non-existent and depend on the understanding of the court. The provision of rape is in section 375 of Indian Penal Code and mention an exceptional clause-“A man having sexual intercourse with his wife who is not above 15 years of age, is not rape. Section 376 provides punishment for rape. It states that whoever commits rape on a woman under 12 years of age shall be punished with rigorous imprisonment for a term not less than 10 years which may extend to life imprisonment or with fine[10]. Thus, marital rape is only viewed as rape if the woman is under 15 years of age. Spouse above 15 years of age does not get lawful security, which is against human rights. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale 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, which she cannot retract.”

In the case of BodhisattwaGautam v. SubhraChakraborty[11], (1996) 1 SCC 490 the Supreme Court held that “rape is a crime which is against basic human rights and violation of fundamental rights of the victim i.e. right to life under Article 21 of the Constitution. Yet it does not recognise marital rape. In the case Sree Kumar v. Pearly Karun[12], the wife was subjected to have sexual intercourse without her will with her husband when she went to live for 2 days as a result of the settlement of separation procedures going on between the parties. The husband was not held liable of raping his wife by the Kerala High Court after considering the offences under section 376-A. In the case State of Maharashtra  v. Madhukar Narayan Mandikar[13], Supreme court put the spouse out and has not given her protection on her own body while the women who are raped by the stranger get the protection.

Though there is some advancement in the legislation related to domestic and sexual violence that too has been confined to physical and not sexual abuse. Women who experienced and grab the courage to challenge sexual violence from their partners are denied to get State Protection as section 375 of the Indian Penal Code has general marital rape exemption. In the 17th century, C.J. Sir Mathew Hale said that the husband cannot be guilty of a rape committed by him on his legal wife, by their mutual matrimonial consent and contract, the wife has given herself to the husband which she cannot retract.

The Protection of Women from Domestic Violence Act, 2005 was passed in 2005, which considered marital rape as local violence[14].  In this, a lady can approach the court and get a legal partition for marital rape from her husband. Marital rape is unreasonable as it involves the rape of a wife’s body and her love, affection and trust are also damaged. Her human rights are abandoned at the holy place of marriage. However, the laws to oppose marital rape are lacking and deficient.

Conclusion

To conclude, Marital rape is not completely recognised in India. Indian laws have failed to provide protection to women and women are still considered as property to their husband. Just because a woman is married it does not mean that she lost her self-respect and dignity. Rape is not an only crime to the unmarried woman but is also to the married woman in matrimonial relation.

It is acknowledged that changing the laws on sexual offences is forbidding and sensitive task. In a country like India where there is a presence of various religious laws that might cause conflict with the new amendments in the criminal laws. Though is there is a need for change in laws for sexual offences such as removing the inequalities and making gender-neutral.

Hence, it is necessary that the legislature and law commission of our country should wake up with the changing the reality of society and provide legal protection to the married women who suffer in their matrimonial relation. Also, society should criticise the cruel behaviour of man.


[1]http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue6/Version-2/B02106020813.pdf

[2]http://ili.ac.in/pdf/vandana.pdf

[3]http://www.legalserviceindia.com/legal/article-551-marital-rape-a-justified-crime-in-india.html

[4]419 MASS. 456

[5]https://www.researchgate.net/publication/223831051_A_review_of_marital_rape

[6]https://www.researchgate.net/publication/223831051_A_review_of_marital_rape#pf12

[7]https://www.lawctopus.com/academike/marital-rape-a-crime-undefined/

[8](1992) 94 CR APP R 216

[9]90A.D.2D681

[10]http://www.legalservicesindia.com/article/2369/Marital-Rape.html

[11](1996) 1 SCC 490 

[12] 1999 (2) ALT Cri 77

[13]AIR 1991 SC 207

[14]http://www.legalservicesindia.com/article/2369/Marital-Rape.html

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