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Marital Rape: Criminalizing The Most Controversial Social Stigma In The 21st Century

Marital Rape

What Is Marital Rape?

What is Marital Rape? The first thing that comes to our thought is the Indian Marriage System and the ultra-conservative patriarchal nature of Indian Males.  If it is happening within marriage, then how can it be called Rape? Marital Rape or Spousal Rape is non-consensual sex in which the culprit is the spouse of the victim. It is a form of domestic violence and sexual violence. Under section 375 of the Indian Penal Code Rape is considered to be a heinous crime that leads to Life Term Imprisonment or Capital Punishment. However, Marital Rape does not come in the bracket of conviction. Exception 2 to section 375 exempts unwilling sexual intercourse between spouses from the definition of rape if they are above fifteen years of age.

Our Basic Thought Process:

The society we live in has been governed by some traditions, rituals, and set of rules and regulations set up by the patriarchal mindsets. The woman is always treated as a commodity, the property belonging to her father or brother before marriage and to her husband after marriage. Marriage in Indian Society is considered a sacred, unbreakable relationship that is said to be successful only after having offspring. The consent to marriage is also considered as the consent to have a sexual relationship with the spouse. It is almost impossible for a woman to come forward and tell that she is being raped by her husband as our system does not consider it as a crime. Nobody can understand the pain of the woman who is the victim of this system unwillingly. The physical and mental trauma that she goes through makes her situation vulnerable.

Marital Rape In The Context Of Indian Society:

Marital Rape in India:

India is one of the thirty-six countries that do not recognize marital rape as an offense. Our Legal System doesn’t provide any concrete protection to the victims of Marital Rape. There is no particular law or punishment for this offense. This immunizes the crime of Marital Rape. Under the Hindu Marriage Act, of 1955 one of the ‘conjugal duties’ of the wife is to provide sexual satisfaction to her husband, a thought of the patriarchal society. Section 375 of the Indian Penal Code (IPC) considers non-consensual sex as an offense only if the wife is below 15 or the couple is legally separated. The recommendations of the Verma Committee to criminalize Rape was not accepted by the government then.

(Forced Sex: A Crime In Many Aspects)
(Forced Sex: A Crime In Many Aspects)

Demand for Justice:

Parliamentary Committee opposed the Verma Commission proposal saying that the entire family system will be brought under great stress if Marital Rape is brought under the law. Under the Protection of Women From Domestic Violence Act, 2005, women can go to court and get a legal separation from their husband in case of marital rape because the Explanation – I provided for Section 3 of this Act states that sexual assault shall include any conduct of sexual nature which demean, embarrasses or affects the dignity of woman. But only separation does not deliver justice. The victim will always demand an equal punishment. So Marital Rape should be criminalized.

Detailed Analogy Of The Crime And Its Provisions:

Alarming Statistics:

Out of the total number of Rapes reported to NFHS (National Family Health Survey) 97.7% were committed by spouses of the victim.  Thus, the intensity of the number suggests that Marital Rape should be criminalized. Every day we hear stories of Marital rape that even happens during menstruation and pregnancy also. So apart from physical trauma the mental trauma the victim goes through is inexplicable. Article 14 of Indian Constitution states that the state shall not deny to any person equality before law or the equal protection of laws within the territory of India. Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives.

Violation of Rights:

In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts. Depriving married women of an effective penal remedy against forced sexual intercourse; it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21. The United Nations has also recommended India make it criminal for a man to Rape his wife. After pitching high for ‘Beti Bachao Beti Padhao’ we cannot give a woman full rights to her body also. The wife is a rape survivor and has the same right as other rape victims too.

Global Progress:

Many countries have criminalized marital rape. Malaysia brought the laws to effect in 2007. Turkey changed its laws in 2005 and Bolivia in 2013. The United States started criminalizing Marital Rape in the 1970s and most European countries in the 1990s. The United Nations has also suggested India criminalize Marital Rape. The Law Commission’s Report, 2000 and Justice Verma Panel, 2013 suggest doing away with the exemption granted to Marital Rape in the laws. It is very subjective. Sometimes the woman denies keeping any relationship even if she is comfortable with it.

(Stop Rape Campaign)
(Stop Rape Campaign)

Balancing Concerns:

If marital rape is criminalized without adequate measures in place, the law can be misused against husbands. The law will increase the burden on the judiciary system and other important matters may get delayed. The rule may not be accessible to rural women because of illiteracy, ignorance, and lack of information in place. It is difficult to implement such a law in India because marriage is considered a sacred relationship and base of the family. Social Customs, Religious Values, and many other factors will not allow such a law to be effective.

Future Course Of Action And Suggestions:         

Empowering Women:

The consent of the woman is important for establishing a physical relationship. For every woman, be married or unmarried; her consent is required irrespective of the relationship, be it the husband or somebody else. The need of the hour is to criminalize Marital Rape and bring it under the legal system. We can take adequate measures to prevent misuse of the law. We cannot leave the system as it is in fear of misuse of the law. However, only legal reform is not sufficient. Along with legal reform, social reform is also necessary.

Raising Awareness:

The cases of Marital Rape are increasing because of the misconception of marriage and marital life. We need to create awareness among women about their self-righteousness. They should know that they are not just material things to be used. An unwilling sexual relationship is also a crime, even if it is inside a marriage. They should be taught about the laws available in place for such crimes. Society should be educated regarding this crime and its consequences for the crime to end soon.


Disclaimer:- Views expressed are the author’s own.

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