Author: Ayushi Bral
Edited By: Krishna Parmar
INTRODUCTION
“The meaning and content of the fundamental rights guaranteed in the Constitution of India are sufficient amplitudes to encompass all facets of gender equality….”
-Late Chief Justice J.S. Verma, Supreme Court of India, Vishaka v. State of Rajasthan
Although the Supreme Court and the Constitution of India provide for gender equality, women still face so many cruelties and violence throughout their lives. Women are not safe even in their own homes. They are subject to many forms of violence such as dowry death, female infanticide, sexual crimes such as rape, modesty-related violence, domestic violence, acid throwing, etc. Martial rape is also one of such violence against women. Marriage is a universal social institution. Under Hindu law, it is considered a sacred tie and holy union that can’t be broken. There are certain matrimonial rights and obligations that spouses have towards each other, such as the legal rights and the right to consortium, including spouse company, affection, support, sexual relations, cohabitation, etc. According to the matrimonial law, there is a duty to consummate the marriage that each spouse owes to the other. It is the mutual right to sexual intercourse that continues throughout the entire life till the marriage survives. The willful refusal and incapacitation to the consummation of marriage are grounds for voidable marriage under some personal laws such as the Parsi Marriage and Divorce Act, Special Marriage Act, etc. But it doesn’t mean that one partner can force the other to have sexual intercourse or make unreasonable demands on the other. However, as the patriarchy is prevalent in India, there is a male-dominated society, and they consider women as their property. They considered that there is an implied consent of women when they have sexual intercourse with their wives but no means no even in the case of married life. Most of the women faced marital rape at least once in their life but hardly there is any woman who has reported it. This article deals with marital rape, its causes, its impact, remedies under various statutory laws, etc.
Meaning, Definition & Explanation
The word marital rape comprises two words rape and marital where the word rape is derived from the Latin term “Rapio” which means “to seize”. According to the Cambridge Dictionary, rape means to force someone to have sex by using violence or threatening behavior when they are unwilling.[1] Section 63 of The Bhartiya Nyaya Sanhita (BNS) deals with rape which provides that:
“A man is said to commit “rape” if he—
penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or
manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or
applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions: —
against her will
without her consent.
with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
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.
with her consent when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
with or without her consent, when she is under eighteen years of age.
when she is unable to communicate consent.”[2]
Marital means something related to marriage. Therefore, marital rape which is also called spousal rape is a term that is used to describe a heinous act of sexual intercourse committed without a wife’s consent by her wedded husband. It is considered as intimate partner violence which includes forced sex and sexual assault between spouses. Although it is mentioned under exception 2 of section 63 of Bhartiya Nyaya Sahita, 2023, there is no statutory definition of marital rape. It means non-consensual sexual intercourse done by the husband through coercion or without the wife’s consent or with her consent when she is of unsound mind or intoxicated which includes oral, anal, or vaginal acts.
Historical Background
From the ancient period, the women are considered as the property of the men. They were not considered as equal to men. They have no say of their own and must follow their husband in each aspect of their lives. There was a patriarchal society, and women had no sexual or economic freedom. As it was stated by Manu from the very beginning of their life, women depend on someone. In childhood, she depended on her father after that she depended on her husband in youth, and later during old age she depended on her child. Thus, she is not free at all. Women were not provided any autonomy and were always considered inferior creatures.
Similar was the condition of the Muslim women. They have no legal status of their own before the advent of Islam. Even after the advent of Islam, the position of women was not that much improved. They were provided with legal status but were only considered inferior to males. As far the divorce is concerned husband can give a divorce to his wife by only saying “You’re divorced”. There is also one of the awful practices under Muslim law is nikah halala which is also known as tahleel marriage in which after being divorced by triple talaq, she has to marry and sleep with someone else and get divorced again to be able to remarry her first husband. Thus, this cruelty against women was there from the very beginning.
Constitutionality of marital rape in India
Under Bhartiya Nyaya Sahita: India is amongst the thirty- six countries that still have not criminalized marital rape.[3] Marital rape is not an offense under BNS. Section 63 of Bhartiya Nyaya Sahita deals with rape and marital rape is one of the exceptions under section 63 which provides that if the wife is above 18 years of age, then the sexual intercourse between a man and his wife is not considered rape. Whereas under section 375 of the Indian Penal Code, the age of the wife is above 15 years but non-consensual sexual activity by a man with his wife not above 15 was considered rape. In the case of INDEPENDENT THOUGHT v. UNION OF INDIA & ANR, it was held by the court that sexual intercourse with a girl or wife by a man below 15 years of age whether with or without consent is considered rape.[4] This age is increased to 18 years under BNS.
Under Protection of Women from Domestic Violence Act, 2005: It recognizes marital rape as a form of domestic violence. Section 3, which talks about the definition of domestic violence, also includes sexual abuse. However, it doesn’t criminalize marital rape in India but only provides for civil remedies.
Under personal laws: In matrimonial law, it is a well-established proposition that each spouse owes the other a duty to consummate the marriage. [5]It was held in the case of Srikant v. Anuradha, AIR 1980, that the mutual right to sexual intercourse continues throughout the entire period of marital life. But it must be exercised reasonably. [6]The willful refusal and incapacitation to the consummation of marriage are grounds for voidable marriage under some personal laws such as the Parsi Marriage and Divorce Act, Special Marriage Act, etc. In the case of Sidhava Saiah v. Laxma, AIR 1958 Mys 115, the court held that perverted or otherwise unreasonable demand of the spouse doesn’t bind the other spouse especially when it impairs the health.[7] However, the exception to marital rape as provided under BNS/ IPC is applied to both Hindus, Muslims, and others.
Status of marital rape in other countries
The status of criminalization of marital rape is concerned, about 150 countries as of 2019 have criminalized marital rape in their own countries which includes 50 states of the US, UK, South Africa, Canada, etc. The countries that have not criminalized marital rape are Pakistan, China, Sri Lanka, Bangladesh etc.
Causes
There are many causes of marital rape. Following are some of the causes of marital rape:
Patriarchal structure: It is one of the main reasons which is responsible for marital rape. Patriarchal structure means a society with male dominance where the female is only considered as the property of the male. She has no say in the home affairs and has no sexual and economic freedom. The man considered her as property that he could use in any way. Man considers his wife as the object of desire. Thus, the husband doesn’t talk about any consent before sexual intercourse with his wife and considers it as his right.
Norms and beliefs of the society: It is believed that the consummation of the marriage is one of the duties of a spouse. Due to this reason, the wife considers it as her duty and doesn’t raise her voice against it.
Marriage as a sacred institution: marriage is considered a sacred and holy institution. A woman considers her husband as her entire world. She believes that he absorbs her identity and life and considers her body to belong to her husband.
No legal recognition: India is one of those countries which haven’t criminalized marital rape. Under BNS/IPC, marital rape only comes under the exception of rape. Thus, this gives the husband the push to do such a heinous act.
Shame and stigma of society: All the women have faced marital rape once in their lives but still they didn’t report it about of stigma of the society and the fear of shame. This led to an increase in such cases as no voice was raised against it.
Lack of awareness: Females are not aware that much that they can be able to raise their voices. They are unaware of their fundamental and other legal rights.
Lack of economic resources: Most of the women in India are dependents. Some depend upon their parents (father), some upon husbands, and the rest upon their sons. Thus, they are not economically able to raise their voice against it and become the victims of this violence.
No sex education: India is one of those countries where no sex education is provided in schools or colleges.
Effects
Impact on mental health: When a woman is sexually abused, she gets frustrated and develops a feeling that her life is meaningless and useless. Women are too emotional, particularly about purity of sex and hence when they are sexually abused, they get a severe emotional shock resulting in depression and frustration. Depression, anxiety, and post-traumatic stress disorder are results of the marital rape.
Low esteem: It led to a decrease in self-esteem of the women.
Isolation: She starts living in isolation from his husband as a result of marital rape out of fear and shame.
Physical injuries: As it was the forced sex, many times it led to injuries on the vagina, anus, urethra of the wife. Her husband did it very brutally under intoxication and he also beat her while forcing her.
Effect on children: The children who witnessed such an act were also affected by it. This is a mental childhood trauma that affects them in many ways such as causing them depression, and anxiety and motivating them to become criminals in the future as it is a faulty socialization.
Case laws
In the case of Harvinder Kaur vs. Harmander Singh, the Court held that Intervention in household matters is the destruction of the institution of marriage and thus the constitution of India could not intervene in it.[8] In the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar, The Supreme Court asserted the right of privacy of women which must not be violated.[9] Then in Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty, the Supreme Court held that rape is a violation of Article 21 of the Constitution of India.[10]
Justice Verma Committee had suggested about criminalization of marital rape, after the Nirbhaya rape case in 2012. But it was only a suggestion that the government of India did not so implement.
In 2016, Maneka Gandhi, then minister for Women and Child Development stated that marital rape could not be implemented in India due to illiteracy and poverty. Then came the landmark case of 2017, Independent Thought vs. Union of India in which the Supreme Court of India ruled about the age of the wife to come under exception 2 of section 375.[11]
Recently in the case of X V. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT of Delhi & Anr., the court held That the woman is not compelled to continue with unwanted pregnancies caused due to marital rape and she can seek abortions as provided under the Medical Termination of Pregnancy Act.[12]
Remedies
The following are the remedies that can help in decreasing the rate of marital rape in India:
Increasing the awareness as to marital rape: Most of the females are not aware of their rights as to consent. By making her aware that marital rape can be tackled.
Economically stable: The government must aware girls of the importance of education and must make schemes to pay skilled and unskilled jobs so that they can become economically stable and take action against their husbands.
Criminalization of marital rape: By declaring marital rape as one of the offenses under Bhartiya Nyaya Sahitya. The husband must be punished by removing it from the exception as provided in Exception 2 of Section 63 of BNS.
Sex education: By promoting sex education one can able to know more about it as people in India avoid talking about it in public. The wife will not feel shame in raising her voice against his husband.
Change in the beliefs in the society: Bringing change in belief in the society according to the needs of the society is required.
CONCLUSION
It can be concluded that violence against women has always remained widespread such as rape, acid attack, etc. Marital rape is also one among them. Legal recognition must be provided for the marital rape to decrease the cases of it in India. The criminalization of marital rape is the need of the hour. The husband needs to understand the fact that no means no. The consent of the wife is required as it is a violation of articles 14 and 21 of the Constitution of India. Therefore, there is a need to change the law, so as to amend Section 63 of BNS in order to comply with articles 14 and 21.
REFERENCES
Books / Commentaries / Journals Referred
Paras Diwan: Hindu Law.
Online Articles / Sources Referred
Manupatra, “Articles – Manupatra” available at: https://articles.manupatra.com/article-details/Marital-Rape-and-Law (last visited August 9, 2024).
PTI, “NCRB data: India witnessed 86 rapes every day, 46 offenses against women every hour in 2021” Financialexpress, 31 August 2022.
Cases Referred
- Yotish v. Meera, AIR 1970 Cal 266; Srikant v. Anuradha, AIR 1980
- Sidhava Saiah v. Laxmane, AIR 1958 Mys 115
- Harminder Kaur vs. Harmander Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
- State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar AIR 1991 SC 207, (1991) 1 SCC 57
- Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
- Independent Thought vs UOI, (2017) 10 SCC 800: AIR 2017 SC 4904
- X V. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT of Delhi & Anr., X V, 29 September, 2022.
Statutes Referred
- Section 63, Bhartiya Nyaya Sahitya, 2023.
- Section 375, Indian Penal Code, 1860.
- Protection of Women from Domestic Violence Act, 2005.
[1] Cambridge Dictionary, “rape” translate English to Hindi – Cambridge Dictionaryavailable at: https://dictionary.cambridge.org/dictionary/english-hindi/rape (last visited August 8, 2024).
[2] Section 63, Bhartiya Nyaya Sanhita (2023)
[3] Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
[4] Independent Thought v. UOI & Anr.( AIR 2017 SC4904)
[5] Paras Diwan: Family Law
[6] Yotish v. Meera, AIR 1970 Cal 266; Srikant v. Anuradha, AIR 1980
[7] Sidhava Saiah v. Laxmane, AIR 1958 Mys 115
[8] Harminder Kaur vs. Harmander Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
[9] State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar AIR 1991 SC 207, (1991) 1 SCC 57
[10] Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
[11] Independent Thought vs UOI, (2017) 10 SCC 800: AIR 2017 SC 4904
[12] X V. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT of Delhi & Anr., X V, 29 September, 2022
