MARITAL RAPE: CRIMINALIZATION OF SEXUAL ASSUALT WITHIN MARRIAGE
Abstract:-
One of the most terrible crimes committed in India is marital rape. Marital rape means sexual acts done without the wife’s consent or against her will by the woman’s husband. It poses one of the largest risks to the gender justice system. It has existed in India since ancient times and continues to wreak havoc. According to the survey, about 30% of married women are victims of marital rape. Exception 2 to section 375 states that non-sexual intercourse by a husband with his wife, if she is over fifteen years, does not regarded as rape.
There is a discussion of marital rape being criminalized. People think that having sexual intercourse with their wives is normal and don’t put too much weight on consent. Husband believes that marriage has given him the right or consent to have sexual intercourse with their wife whether she is willing or not. If a person says “NO” means “NO”. Rape is rape even if sexual intercourse is done by husband without his wife’s consent. One should respect the consent of his wife. This article talks about the marital rape and criminalization of rape. Also, legal aspects of rape, why marital rape should be considered as rape. This article focuses on the types of marital rape, its legal history, effects and facts and statistics of marital rape.
INTRODUCTION:-
Rape, the word “rape” means forcible seizure. It means having sexual intercourse without a woman or girl’s consent or with her consent obtained forcefully or by threatening them.
1) Rape is defined in IPC section 375. In any of the seven situations listed in section 375 of the IPC, it is illegal for a male to have sexual relations with a woman without her knowledge or against her will. A guy is deemed to have committed "rape" if he:
a) Inserts any amount of his penis into a woman's vagina, mouth, urethra, or anus, or compels a woman to do so with him or anybody else; or
b) puts, to any degree, any object or body part—other than the penis—into a woman's vagina, urethra, or anus, or compels her to do so with him or anybody else;
c) manipulates any part of a woman's body to allow penetration into her vagina, urethra, anus, or any other part of her body, or forces her to do so; or
d) presses his mouth to a woman's vagina, anus, or urethra or forces her to do so while he or another person is present and the situation fits any of the following seven descriptions:
Firstly, Without her consent.
Secondly.- Against her will.
Third her consent, when her consent has been obtained by making her feel threatened or at risk of harm or death.
Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent if, at the time of giving such consent, she is incapable of understanding the nature and consequences of that to which she gives consent due to her state of insanity, intoxication, or the administration of any stupefying or unhealthy substance by him personally or through another.
Sixthly.-When she is younger than 18 years old, with or without her consent. Seventhly.- When she is unable to verbalize consent.
Explanation: Penetration is enough to qualify as the sex act required to commit rape.
Exception: It is not rape when a man engages in sexual activity with his wife while she is over the age of 15.1.
MARITAL RAPE- AN EXCEPTION TO RAPE:-
An intercourse between a man and his wife without the consent of his wife obtained by force, threat of physical violence and mental torture where the woman is unable to give her consent is said to be considered marital rape. The statistics have mentioned that, every 6 hours a young married woman has been burned or beaten to death and even commits suicide due to the emotional abuse from her husband. According to the exemption to Section 375, if a man engages in non-consensual sexual activity with his wife and she is beyond the age of 18, it does not constitute rape. This keeps coercive and non-consensual sexual activity outside the definition of rape.
It is thought that the sexual encounters form the basis of the husband's immunity from being charged with marital rape. Regardless of whether she consents or not, her husband has the right to have sex with her, and she must yield to his wishes and desires. By excluding the potential of contrived, fraudulent, and motivated allegations of rape by a wife against her husband as well as the practical procedural challenges that could emerge in such a court case, it also strives to preserve the institution of the family. 2 The Indian Penal Code also makes it illegal for a person to engage in non-consensual sexual activity with his wife who is living separately or under a divorce decree with any of the behaviours listed in Sections 375(a) to(d) .3When compared to the punishment for consensual or non-consensual sexual contact with his wife when she is under the age of fifteen, which is considered rape under the exception to section 375, the punishment for non-consensual sexual contact by a man with his wife living separately is, however, very light. In the absence of a complaint being filed or made by the wife against the husband, no court has the authority to take cognizance of the offence of sexual intercourse by the husband upon his prima facie satisfaction of the circumstances constituting the offence. 45 The Indian Penal Code defines "rape" in Section 375 and lays forth penalties for the offence in Section 376. However, the Act has not succeeded in defending married women who have been raped by their spouse.
TYPES OF MARITAL RAPE:-
∙ Force-only rape: The phrase "force-only rape" refers to a husband who only uses violence and threats to coerce sex. This type of rape usually occurs in relationships where violence occurs only/primarily in sexual interactions.
∙ Battering rape: In battering rape, women experience both physical and sexual violence in the relationship and they experience this violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.
∙ Obsessive rape: The term "obsessive rape" refers to the most overtly sadistic type of rape. The act itself is aggressive, and the abuser appears to be obsessed with sex.
HISTORY OF MARITAL RAPE:-
The IPC went into effect in 1860 and restricted the marital rape exception to only women over the age of 10. After the statute was changed, the exception became available to women above the age of 15 in 1940. The first petitions to make marital rape a crime were submitted to the Delhi High Court in 2015. The court sent a notice to the Centre and requested a response.
In an affidavit submitted in the lawsuit in 2017, the Central Government said that making marital rape a crime "may destabilise the institution of marriage" and serve as a potential means of harassing spouses. The Supreme Court then read down the marital rape exception and declared that when a man engages in sexual activity with his wife when the wife is over the age of 18, it is not rape. The exception used to only apply if the wife was under the age of fifteen.
Hearings on the petitions to make marital rape a crime started in 2022. Two Delhi High Court judges began hearing applications filed by people and civil society organizations contesting the exemption in January 2022. They had reached a contentious split decision by May 2022. The right of a woman to consent was infringed by marital rape, therefore one judge argued for its criminalization, while the other judge opposed it, arguing that marriage "necessarily" indicated permission. The matter was passed to the Supreme Court.
The Medical Termination of Pregnancy Act's definition of rape should encompass marital rape, the Supreme Court said in a case involving women's access to safe abortions regardless of their marital status in September 2022. But still, marital rape has been not criminalised in India. In 1922, the Soviet Union became the first country to criminalize marital rape. As a result, rape in marriage became illegal in several Scandinavian and European countries.
JUDICIAL VIEW ON MARITAL RAPE (CASES):-
1. Independent Thought v Union of India & Anr: This case has somewhat changed the exception, which might be seen as the start of many more developments including marital rape. The Honorable Supreme Court ruled that the second exemption of Section 375, which prohibits rape in the process of marriage when the woman is under the age of fifteen, has been expanded to include brides under the age of eighteen.
2. Justice K S Puttaswamy v Union of India: In this instance, Article 218 of the Indian Constitution recognizes the right to privacy as a basic right. The Hon’ble Supreme Court ruled that a woman's right to privacy extends to her bodily integrity. Therefore, the wife's fundamental rights would be violated if she were subjected to compelled sexual activity.
3. Bandhua Mukti Morcha v Union of India: The idea of marital rape exemption breaches the victim's right to good health, which is protected under Article 21. Such an exception causes significant psychological and physical suffering. It devastates a woman's psychology and causes her to experience a severe emotional crisis.
4. State of Karnataka v Krishnappa: In this instance, the Hon’ble Supreme Court declared that sexual assault violated the right to privacy. Non-consensual sexual activity was also recognized as bodily and sexual violence by the court.
CURRENT SITUATION OF MARITAL RAPE IN INDIA v OTHER COUNTRIES:-
Despite constant discussions and requests for a change in the law, marital rape is still not recognized as a crime in India. If the wife is older than 15, the husband is not guilty of rape under the Indian Penal Code (IPC). The exception has drawn heavy criticism for being sexist and violating women's constitutional rights.
In comparison, many countries have criminalized marital rape and provide legal protection for women in abusive marital relationships.
Countries that have made marital rape illegal:-
All 50 US states have made marital rape a crime since 1993, while state-by-state regulations vary.
United Kingdom - Marital rape is now a crime there as well, and those proven guilty face a life sentence.
South Africa - Since 1993, marital rape has been prohibited in South Africa.
Canada: Marital rape is a crime there.
Countries that do not criminalize marital rape include Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka, and Tanzania.
CONCLUSION:-
Rape is rape, whether it is done by a husband or any other person. Marriage does not give a license to the husband to control and do whatever they want to do with them. There should be consent from both sides. The wife’s consent is also very important for sexual intercourse. Studies show that a rape committed by a spouse particularly traumatizes women. They are abused by someone they share homes, lives, and possibly children with. They experience a physical violation as well as a betrayal of trust and closeness. There are several reasons why victims of marital rape could choose to stay married. this includes mistaken hope that their partner will change, dread of further abuse, loss of financial security, a low feeling of one's value, and low self-esteem. Although a husband's violent and non-consensual act of intercourse may entitle a wife to file a criminal assault claim, the principle of marital rape responsibility is not included in our penal statutes.
The primary issue with the Indian legal system is the non-criminalization of marital rape. One of the largest barriers to India's development is marital rape, which must be entirely eradicated if India is to become a prosperous country. When Indian culture, the legislature, and the administration take action in this area, marital rape can only be criminalized in India. Through its insightful rulings, the Indian judiciary must also exert sufficient pressure on the country's legislative and executive branches to make marital rape a crime. Therefore, to completely abolish marital rape in India, all branches of society, the government, the executive branch, and the court must band together.
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