Marital Rape – The reality behind the curtain of marriage | Criminal Law for Judiciary Exams PDF Download

Introduction

• Rape is an offense against women, violating her dignity and self-respect.
• Material rape within a matrimonial home degrades a woman to an object for sexual gratification.
• There is a crucial need for a distinct law on marital rape in India.
• Women should have the right to protection, even when the violator is their husband.
• Marital rape is prevalent in Indian society but often concealed within marriages.
• The legal treatment of marital rape lacks clarity and resolution.

Marital Rape

• Marital rape involves unwanted intercourse by a husband with his wife using force, threats, or when she cannot consent.
• It is a non-consensual and violent act of perversion against the wife, involving physical and sexual abuse.

Types of Marital Rape

• BATTERING RAPE: This type of marital rape involves both physical and sexual violence within the relationship. For instance, a scenario where a wife is physically abused during sexual violence or when rape follows a violent episode where the husband tries to reconcile by coercing his wife into sex against her will. Victims in such cases often fall under this category.
• FORCE-ONLY RAPE: In this category, the husband uses the necessary amount of force to coerce his wife into sexual acts. Battering might not be a prominent feature in these cases, but women who resist sexual intercourse often face significant assault.
• OBSESSIVE RAPE: This form of marital rape involves brutal torture and persistent sexual acts, usually characterized by extreme violence. It is sometimes referred to as sadistic rape.

Laws in India

Rape Definition in Indian Penal Code

• Section 375 of the Indian Penal Code defines rape as sexual intercourse with a woman against her will.
• Rape can occur without the woman's consent through coercion, misrepresentation, fraud, intoxication, deception, or if she is of unsound mental health.
• Rape is also defined if the woman is under 18 years of age.

Exception Clause for Marital Rape

• An exception clause in Section 375 states that sexual intercourse by a man with his own wife is not considered rape if the wife is not under 15 years of age.

It is crucial to understand the legal nuances and protections provided by the Indian Penal Code regarding rape and marital relations. By defining rape and specifying exceptions, the law aims to safeguard individuals from sexual violence and exploitation.

Criminal Prosecution for Marital Rape under the Indian Penal Code (IPC)

• Wife Aged Between 12-15 Years: If the wife is between 12-15 years of age, the husband can be criminally prosecuted for marital rape, which is punishable by imprisonment for up to 2 years, or both.
• Wife Below 12 Years: In cases where the wife is below 12 years of age, the husband can face imprisonment for a term not less than 7 years, which may extend to life, or up to 10 years along with a fine.
• Rape of Judicially Separated Wife: If a husband commits rape against his judicially separated wife, he can be prosecuted with imprisonment for up to 2 years and a fine.
• Wife Above 15 Years: Marital rape of a wife who is above 15 years of age is not punishable under the IPC.

Protection of Women from Domestic Violence Act 2005

• Marital Rape under the Act: The Protection of Women from Domestic Violence Act 2005 does not explicitly consider marital rape as a form of domestic violence. However, under this act, a woman who has experienced marital rape can seek judicial separation from her husband through the court.

Legal Issues in Indian Laws Concerning Marital Rape

• Expanding Interpretation of Right to Life: Judicial interpretations have significantly broadened the scope of Article 21 of the Indian Constitution. The right to live with dignity, encompassed within this article, is violated by marital rape. For instance, Section 375 of the Indian Penal Code 1860 contradicts Article 21 by not adequately addressing marital rape.
• Inconsistencies in Age of Consent: While the law prohibits girls below 18 years from marrying, it paradoxically permits non-consensual sexual activity with a 15-year-old wife. This disparity raises concerns about the protection of minors within marital relationships.
• Lenient Punishments: Under the Indian Penal Code 1860, engaging in non-consensual intercourse with a wife aged between 12 and 15 years is considered rape. However, the prescribed punishment is a mere fine or a maximum of two years' imprisonment, significantly less severe than penalties for rape outside of marriage.
• Implied Consent and Marital Obligations: The legal stance that a husband cannot be prosecuted for raping his wife is based on the assumption that consent to marriage implies consent to sexual relations. This perspective considers sexual intimacy as an inherent part of the marital contract, making it challenging for wives to assert their autonomy.
• Violation of Equality Rights: Article 14 of the Indian Constitution guarantees the fundamental right to equality before the law and equal protection of laws to all individuals within the country. However, the current legal framework on marital rape raises questions about the application of these rights, particularly concerning gender equality and protection of vulnerable individuals.

Conclusion

Acknowledging that altering laws related to sexual offenses is a challenging and sensitive undertaking, especially in a country like India with a diverse system of personal and religious laws, it is imperative to consider an individual rights rhetorical approach for criminalizing marital rape. This approach should extend legal protection not only to child brides but to all wives who require safeguarding from rape within the confines of marriage. The existing patriarchal power structures have perpetuated the notion that marriage grants a license for non-consensual sex, negating the self-respect and bodily integrity of women. Furthermore, there is a crucial need to educate the public about this crime. The true objective of criminalizing marital rape can only be realized if society acknowledges and challenges the prevailing myth that rape by one's spouse is inconsequential.