This article on ‘The criminalisation of Marital Rape in India: All you need to know‘ was written by Rosy Adhikary, an intern at Legal Upanishad.
Rape is one of the worst crimes that can ruin a victim’s entire life. Many rape incidents like this go unreported because of the mindset of society, which still criticises women for wearing short dresses, but the true culprit was an evil mind, not the victim’s attire. If you’re wondering why there are rape cases every year, the reason is that there aren’t severe rules to deter people with wicked intentions. Here, this article addresses the topic of marital rape and its criminalization.
What is Rape?
If a man engages in sexual activity with a woman in any of the six situations listed below, it is considered rape:
- Without her consent.
- Without her approval.
- Having her consent means convincing her to give it by making her feel threatened or vulnerable, whether personally or in relation to others.
- With her agreement, if she believes he is another man to whom she is legally married or believes herself to be so, even though the guy is aware that he is not her husband.
- When she is unable of understanding the nature or effects of the thing to which she provides assent due to mental incapacity, intoxication, or the administration of any stupefying or unwholesome drug by him personally or through another, he may nonetheless act with her consent.
- With or without her consent when she is under sixteen years of age – penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.
What is Martial Rape?
According to the National Family Health Survey’s most recent fifth round, 32% of Indian women who have ever been married had experienced physical, sexual, or emotional abuse at the hands of their spouses (NHFS-5).
According to a recent United Nations report, 25% of married women in the 18-49 age range who have experienced spousal physical or sexual violence report having physical injuries, including 7% who have suffered burns, sprains, dislocations, or eye injuries, and 6% who have suffered deep wounds, broken bones, cracked teeth, or any other serious injury.
In India, rape is de facto but not de jure, meaning that marital rape is not included in the definition of rape under section 375 of the Indian Penal Code.
According to exception 2 of section 375, sexual contact between a man and his own wife who is over the age of fifteen is not considered rape. This is based on the idea that a woman has no legal authority to forbid having sex with her husband once they get married. This directly violates the norms of human rights by granting men the freedom to have sexual relations with their wives and giving them permission to rape them. Raping a wife who has been judicially separated is a crime under Section 376-A.
Article 14 of the Indian Constitution ensures that:
Within the boundaries of India, the State shall not deny anyone’s right to equal protection under the law or equality before the law.
Indian criminal law discriminates against female victims who have been raped by their own husbands, notwithstanding the Constitution’s guarantee of equality for all people. The Indian Constitution’s Article 21 is likewise broken by Exception 2.
A defense for not being punished
- The union government absurdly argued that if all sexual acts between a husband and his wife occur, then the wife will be the only judge of whether they are marital rape or not in an affidavit to the Delhi High Court, claiming that a law criminalising marital rape could be used to harass husbands.
- According to the Indian government, those who attempt to stop women from being raped by their husbands are following Western nations’ lead.
Decisions related to Marital Rape in India
The Gujarat High Court opened the door for debate on eliminating the exception for marital rape in 2018.
The Kerala High Court issued an important decision in 2021 declaring “marital rape as a viable reason for divorce.”
Beginning in January 2022, applications questioning the constitutionality of the exception to Section 375 of the IPC were heard. According to Justice Chandrachud, the MTP Act defines a husband’s act of sexual assault or forced sexual contact with his wife as “rape.” The decision is still pending.
The Supreme Court ruled that rape under the Medical Termination of Pregnancy Act includes a husband’s act of sexual assault or rape perpetrated against his wife, recognising marital rape for the first time as a justification for abortion of an unintended pregnancy.
Although the Supreme Court’s appeal to the Indian Penal Code’s protection for marital rape is still unresolved, civil legislation, such as the MTP Act, has recognised it as having the same legal standing.
Because the MTR Act and IPC apply to distinct contexts, interpreting “rape” under the MTP Act to include marital rape did not have the effect of repealing Exception 2 to Section 375 on the offence of rape, the validity of which is to be determined by the Bench.
When a case of marital rape comes before the court, the government is still unsure of what to accept as proof. It is also uncertain whether making the act illegal would lead to other issues like the harassment of men, etc. According to social theorists, criminalising marital rape would undermine the institution of marriage. We might draw the conclusion that although India acknowledges marital rape as a crime, it chooses not to codify the crime or implement a proper law.
- What is Rape? What are the laws and rights of rape victims in India, available at https://www.legalserviceindia.com/legal/article-8693-what-is-rape-what-are-the-laws-and-rights-of-rape-victims-in-india.html
- Abhayan ,Legal Service India ,Types Of Marital Rape , available at https://www.legalserviceindia.com/legal/article-5571-types-of-marital-rape.html#:~:text=The%20term%20rape%20is%20sometimes,is%20unable%20to%20give%20consent.
- Prime Legal ,MARITAL RAPE IN INDIA- CAN IT BE CRIMINALIZED? Available at https://primelegal.in/2022/05/31/marital-rape-in-india-can-it-be-criminalized/
- Amit Anand Choudhary ( Sep 30, 2022, 01:25) In a first, Supreme Court recognises concept of marital rape , available at https://m.timesofindia.com/india/rape-under-abortion-law-includes-marital-rape-supreme-court/amp_articleshow/94539535.cms