Rape is the most heinous crime committed against women. It not only destroys a victim physically but also psychologically. It affects body as well as soul; the act of using and abusing a women’s body for sexual pleasure without her express or implied consent is violative of not only individual’s dignity but also of the society as a whole. Its revolting to one’s thought that your body is being used forcefully for someone’s sexual pleasure.
We have stringent laws in place to protect women from the crime of rape and serious punishment has been provided therein for the offender. But the rate of commission of such crime is still very high and in fact it’s on the rise in our society.
Apart from rape in general, marital rape or forceful sexual intercourse by a man with his own wife is a bitter reality of our society. Though the general consciousness of the society might consider marital rape as a morally and ethically wrongful act but it does not regard it as a serious crime; and in fact, directly or indirectly gives it a social sanction in the name matrimonial necessity. The worst part is that the law of the land also, till now, has failed to recognize marital rape as an offence and in a sense gives it a legal sanction also.
What is Marital Rape
If Rape is the genus, the Marital rape is one of its species. It can be defined as unwanted sexual intercourse by a man with his own wife without her express or implied consent, either forcefully or by the use of threat or coercion of physical harm.
The essential feature of marital rape is the relationship of husband and wife between the man and woman; this makes the issue more socially relevant. Like in rape, in marital rape also there is no consent of the women and there is use of force by the man for sexual intercourse.
Though society as a whole considers rape as very serious crime and law also gives great importance in punishing the rapists, but, rape laws do not give any protection to married women in case their husbands forcefully have sexual intercourse on them. Society as a whole also does not consider marital rape as an issue of any significance and gives full immunity to husbands.
Married women who are subjected to this kind of sexual violence by their own husbands have no place to go; they cannot complain this to their family due to societal pressure and also they cannot go to police because law does not recognize marital rape as crime. Thus, victims of marital rape are condemned to bear the pain silently and have no remedy in sight.
Reasons for Marital Rape
The reasons of marital rape can be many such as sexual perversion of husband; desire to assert superiority of men over women; petty domestic issues; attempt of women to demand her right in marital relationship etc.
Thus, in essence, the main reason of this marital menace is wide spread gender inequality prevailing in our society. It is another aspect of our patriarchal and male-dominated system of social norms where women either married or un-married do not have equal rights in any which way. It is another weapon in the hands of man to exploit and subjugate women.
Also, one of the reasons is the role traditionally assigned to married women in our society. The role as defined by society to married women is of pati-vratastri means pure, faithful and obliging women. Thus, a married woman is supposed to follow her husband’s directions fully and fulfill all his demands without any questioning. So the notion of ‘good wife’ is not good for women but for men only. Sexual relationship has been considered as an important part of married woman’s duty towards her husband and she is not supposed to deny that to him. Her role must be of submission and surrender.
Economic dependence over her husband and in-laws is also one of the reasons that married women are unable to protect themselves from frequent practice of marital rape and are bound to bear the violence.
Another reason is the absence of legal provisions recognizing marital rape as an offence; which encourages the man to continue with his behavior and leaves the wife with no remedy.
Marital Rape and Law
The biggest disappointment in dealing with the ill of marital rape is that it is not an offence in the eyes of law in India. Neither the Indian Penal Code, 1860 nor any other specialized legislation such as the Domestic Violence Act, 2005 specifically recognizes marital rape as a crime.
Though marital rape is one of the most humiliating and degrading experience for a woman but our legislatures did not yet find it appropriate to amend existing penal Acts or to enact a new specialized legislation to protect married women from this continuing violence.
Indian Penal Code and Marital Rape
Section 375 of IPC defines rape. It lists acts which shall be considered as the offence of rape; it also provides conditions fulfillment of which will bring acts as defined in the purview of rape.
But the definition does not recognize forceful intercourse by a husband with his wife as rape. In other words, Section 375 excludes marital rape from its purview.
One of the provisions (sixthly of section 375) provides that sexual intercourse by a man with a girl under 18 years of age is rape, either with or without her consent. But, in the same section, it is provided that (as per Exception attached to Section 375), sexual intercourse by the husband with his own wife and wife not being under 15 years of age is not considered as rape. Thus, if a girl is married and her husband commits forceful sexual act upon her it is not rape even if she is below 18 years of age but not below 15.
The irony or double standard in law is obvious here, for a married woman above the age of 15 there is no remedy against her husband’s sexual perversion. This provision imparts a great injustice to married women because it helps the perverted husbands to perpetuate their wrongful act. And it provides no remedy to the wife if she is above 15 years of age.
Furthermore, even recognition of sexual relationship as rape in case of wife being below 15 is not because law considers it as marital rape but the consideration is only that of age of the wife.
Thus, the IPC does not give recognition to marital rape at all. Even the much talked about recent criminal law amendment i.e. the Criminal Law Amendment Act, 2013 did not make any provision regarding marital rape.
Further, Section 376B provides that sexual intercourse by a man with his own wife without her consent during judicial separation is an offense punishable with imprisonment up to 2 years and fine also. But here also the provision does not recognize the said offence as rape. And in this case the married couple is living separately under a decree of judicial separation. Thus, here too marital rape did not find any mention.
Perhaps only if we take a broader view, marital rape may be considered as a form of ‘cruelty’ as defined under section 498A, because cruelty includes any type of harm both mental as well as physical. But strictly speaking it is going too far with the provision and also it will only be taken as cruelty not marital rape.
Law presupposes that in a marriage, the wife has consented to provide all types of matrimonial obligations to her husband including sexual intercourse which she cannot retract later on. This archaic rule is still subsisting and is the main hurdle in recognizing marital rape as an offense.
Without any specific legal provision in place it is almost impossible to stop this perversion of marital rape. Victims of this moral crime have nowhere to go. Perhaps the last resort is only the Judiciary. Judiciary of our country has certain discretions which it can use to recognize marital rape and a serious moral and ethical crime liable for strict punishment. And in some cases judiciary is doing the same through judicial creativity; for instance:
Additional Sessions Judge Dr. Kamini Lau, in one of the recent cases, has observed: “Non recognition of marital rape in India, a nation set upon the bedrock of equality, is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women.” “We in India are yet to recognize the woman’s right to control marital intercourse as a core component of equality” and emphasized that the “woman has full autonomy over her body, recognition of marital rape and offensive sexual acts, and raising our voices against it is the first crucial step towards achieving substantial equality between man and woman.” “Marital rape is offensive to morality and liberty and any kind of sexual perversity is required to be exposed, addressed and condemned.”
But in absence of any specific provisions of law, judiciary is also bound and cannot of its own consider forceful sexual intercourse by a man upon his wife as marital rape.
Therefore it is necessary that the legislature of our country and also the law commission of India must wake up to the new and changing realty of present times and provide much needed legal protection to hapless married women who suffer silently in their homes without any help in sight. Also, the society in general and every household in particular should also start to disown and condemn such behavior by a man against his own wife so that the culprit husband does not get any kind of sanction for his criminal act.
Such positive acts by the law as well as society would give married women a sense of security and provide them with a redressal mechanism in case of marital rape.
The concept of right to equality enshrined in our constitution will remain as a dead letter if women of our country will not have any right over her own body and will not have any option of exercising their own choices as far as sexual relationship in marriage is concerned.