Marital Rape has become a serious debatable issue in India, where justice is being denied due to an outdated and orthodox mentality. There is a lack of any sort of legal provision regarding marital rape. The only option the victim has left is to go to the Court but as in any Indian law, there is not any definition of marital rape, it cannot be properly proved that forceful intercourse by a man upon his wife is marital rape. Various activists and Indian media had opinions to criminalise marital rape but some orthodox people view that marital rape cannot be criminalised because Hindu marriage is sacred in nature and criminalisation of marital rape can destabilise the sacred nature of marriage. Secondly, it cannot be criminalised because there are a huge number of fraudulent cases that may be filed against husbands. The Indian government argues that there might be cases when what seems like rape to the wife may not be rape to others. This statement clearly shows that the regressive nature of Indian society as one of the walls for criminalising marital rape.
Marital Rape can be defined as any unwanted sexual intercourse as penetration (vaginal, anal or oral) obtained by threat or force when the wife does not give her consent.
TYPES OF MARITAL RAPE
Force-Only Rape: The term “force-only rape” describes a husband who uses threats and violence only to the degree necessary to coerce sex. This type of rape usually occurs in relationships where violence is predominately verbal, and/or in relationships where violence occurs only/primarily in sexual interactions.
Battering Rape: When beatings and rape are combined, it is referred to as “battering rape.” Sexual abuse is part of the general pattern of psychological, verbal, emotional, economic, and physical abuse. Often, the rape occurs as a continuation of the physical assault. In some cases, physical violence continues during sex, and the sexual act is also violent.
Obsessive Rape: The most openly sadistic form of rape is called “obsessive rape.” The abuser seems obsessed with sex, and the act itself is violent. In these relationships, the abuser may use violence to become aroused. (Finkelhor & Yllo, 1985)
WHAT DOES THE LAW SAY?
When call it simply, Indian laws do not have any place for marital rape, because it says that it does not apply in cases when the perpetrator is a spouse.
The Indian Penal Code, 1860 discriminates against the consent of married and unmarried women. As per the exception clause in Section 375, there cannot be the commission of rape when the husband has sexual intercourse with his own wife not under 15 years of age without her consent. This also goes against the article-14 of the Indian Constitution, the right to equality.
There was also a lot of debates that occurred after some of the statement of the Court. The Indian Judiciary has played a vital role in the issue of Marital Rape. There have been various controversial statements made by the judicial persons that left us shocked that orthodox thinking still exists in our judicial system along with society. Instead, there are also some good steps taken by our Indian Judiciary for criminalizing marital rape but still, it is far away from it.
In the Arnesh Kumar v. State of Bihar, the Apex Court held that criminalising marital rape will be the collapse of the social and family systems. Also, when CJI SA Bobde asked a rape accused that "will you marry her?"
In the case of Harvinder Kaur v. Harmander Singh, 1984, the Delhi High Court stated that the Constitution could not interfere in a household because it would destroy the institution of marriage. Besides these types of statements, there are also some judgements in which the Court had accepted that marital rape should be a matter of concern.
In 2019, while introducing the women's sexual reproductive and menstrual rights bill, 2018, Shashi Tharoor, a Member of Parliament in the Lok Sabha said, "Marital Rape is not about sex, but about violence, it is not about marriage, but about lack of consent."
The turning point of the judicial instance against marital rape can be seen in the case of Independent Thought v. Union of India. The divisional bench said that 'The issue before us is limited but one of considerable public importance – Whether sexual intercourse between a man and his wife being a girl between 15 to 18 years of age of rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.
Advocate Karuna Nundy, who was representing the petitioner in a case has made a statement that: They don't want the law in the bedroom despite the fact that you are not allowed to kill your wife in the bedroom or slap your wife in the bedroom, nor are allowed to sexually molest her in the bedroom (under the Domestic Violence Act). The only thing the criminal law has an exception on here is raping a wife in her bedroom.
In Nimesh Bhai Bharat Bhai Desai v. State of Gujarat (2018). It explained that 'dehumanised treatment of women will not be considered acceptable and also that "marital rape is not a privilege of the male partner in a marriage, but instead violent conduct and unfair treatment that should be criminalised.
Justice DY Chandrachud also stated that: The freedom to say 'no' (to sexual intercourse) must exist after marriage as well.
Another significant Judgement came in the year 2021 when the Kerala High Court ruled 'marital rape' as a valid ground for divorce.
A recent NFSH report says that out of all the sexually abused married women, 82% accused were the husband of the victim.
According to a UN Population Fund Report, More than 2/3 of the married women in India have been beaten or raped.
Allowing marital rape and not criminalising it effectively means that human dignity can accord lesser value in the case of a woman when she is married. The argument of some orthodox people that criminalising to protect the stability of the marriage is illogical. Marriage does not mean that the woman is all time ready to, willing and consenting (to establishing physical relations). The time has come when the amendment of the criminal laws should be so structured as to give recognition of women's equality and right to the integrity of their own bodies.