Marital Rape | Explained | No means no

Marriage is a legally binding agreement between two people. It is legal for a husband and wife to have sexual relations. Because sex is legal, a husband gains power over his wife, which becomes the sole cause of marital rape.

India is one of countries that have not yet made marital rape a criminal offence. Despite the fact that the High Courts and the Supreme Court have been inundated with applications seeking constitutional action against the exemption to section 375 of the IPC (Indian Penal Code). If rape is considered a "genus," then the act of marital rape is considered a "species."

"Marital rape is committed by a person to whom the victim is married," according to the Oxford dictionary definition. This sort of rape is defined as sexual action that is unwelcomed by the partner, which is carried out without the female partner's consent or against her will in a coercive and threatening manner. It can also happen when the wife is unable to consent and the husband engages in forcible intercourse with his own wife.

HISTORY OF THE MARITAL RAPE AND WHY IT HAS NOT BEEN CRIMINALISED

To comprehend why marital rape has not yet been criminalised, we must first comprehend its history. Marital rape has a long history. Husband and wife were identified as a same entity.  In 18th century English law, the wife was regarded to be reliant on her husband and incapable of living alone, and her rights (including her sexual rights) were subsumed by her husband's. The sweeping rules that evolved in 18th century English law gave rise to Exception 2 of Section 375.

Due to the belief that it will be exploited to destabilise marital relationships and as an efficient tool for harassing spouses, marital rape has not been deemed a criminal offence.

The other considerations that prevent marital rape from being criminalised, are:

·       Family pressure: Under Hindu law, marriage is always regarded as sacramental, and it is expected to prevail regardless of the circumstances. The primary focus of such relationships is to produce progeny and fulfil religious obligations, and families frequently bind its members to fulfil such obligations. In Muslim law, marriage is defined as a social notion with the goal of producing offspring and satisfying sexual cravings, regardless of whether the female desires it or not. As a result, families have placed less emphasis on the human rights of female spouses when it comes to sexual practises.

·       Absence of Laws: There is no explicit statement in any legal framework that marital rape is a criminal act. Even the provision of rape under S.375 of the IPC excludes marital rape from its scope.

·       Sociocultural pressures: The fear of a person's societal image deteriorating has traditionally protected marital rape from being classified as a criminal act. This is one of the key reasons why marital rape has become so common in marriages that are supposed to be sacred. The wife has always been unable to speak out against sexual intercourse without her consent due to societal pressures.

·       Financial dependency: A wife's financial dependence on her husband has also led to the presence of marital rape. Previously, the wife was expected to remain at home following the marriage. Despite the fact that this scenario has evolved over time, it still remains in some households.

LEGISLATIONS ON MARITAL RAPE

All forms of sexual assault involving non-consensual intercourse with a woman are covered by the definition of rape codified in Section 375 of the Indian Penal Code [IPC]. Unwanted sexual intercourse between a husband and wife over the age of fifteen, on the other hand, is exempt from Section 375's definition of rape and hence immune from prosecution. Rape is punishable under section 376 of the IPC. According to this section, the rapist should be sentenced to either a period of imprisonment of not less than seven years but not more than ten years, or a term of imprisonment of not less than ten years but not more than life, and a fine.

According to the Indian Penal Code, a spouse can be punished for marital rape in the following circumstances:

1. When the wife is between the ages of 12 and 15, the offence is punishable by up to two years in prison, a fine, or both.

2. When the wife is under the age of 12, the offence is punishable by imprisonment of any sort for a duration of not less than 7 years but not more than life, or for a term of up to 10 years, as well as a fine.

3. Rape of a judicially separated wife is a crime punishable by up to two years in prison and a fine.

4. Rape of a wife over the age of 15 is not punishable.

5. The Protection of Women from Domestic Violence Act, 2005 was enacted with the goal of protecting women from domestic violence. This statute does not prohibit marital rape, but it does allow a woman to seek judicial separation if she is the victim of her husband's unwanted sexual intercourse. As a result, marital rape can be used as a basis for obtaining judicial separation.

India's rape laws are in violation of Articles 14 and 21 of the Indian Constitution. Article 14 guarantees equality before the law and equal protection under the law. Exception 2 to Section 375 discriminated against married and unmarried women, infringing on her constitutional right to equality under Article 14. Section 375 of the Indian Penal Code revokes a woman's right to choose, effectively depriving her of physical autonomy and personality. The preservation of life and personal liberty is guaranteed by Article 21 of the Constitution.

JUDICIAL DECISIONS ON MARITAL RAPE

In Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty[1] According to the Supreme Court, Rape is a crime against basic human rights and a violation of the victim's most prized fundamental right. A married woman, like any other person, has the right to live in dignity, privacy, and control over her own body. These rights cannot be taken away by marriage.

In Nimeshbhai Bharatbhai Desai vs State Of Gujarat[2] According to the court, marital rape has not yet been criminalised in our country because the Parliament is concerned that it may undermine the institution of marriage. By submitting fraudulent and frivolous accusations against her husband, an unprincipled wife may use it as a formidable tool or weapon to punish him. However, the criminal justice system has protections in place to detect and investigate fabricated or false marital allegations, and anyone who makes false and malicious accusations can be held accountable under the law. Because of this anxiety, marital rape cannot be disregarded. Within her marriage, Indian laws grant women the right to life and liberty, but not to their bodies. Because there is a lawful marriage, a husband's assault on his wife would be an offence under the IPC, but if the same husband compels his wife to have sexual intercourse, he would be responsible for assault but not for rape.

The court identified three types of marital rape that are common in today's society:

Battering rape: Battering rape is a sort of marital rape in which women are subjected to physical and sexual violence in a variety of ways. The wife may be battered during the sexual barbarity, or the rape may occur after a physically violent episode in which the husband attempts to make amends and forces his wife to have sex against her will.

Force-only rape: Husbands use only as much force as is necessary to pressurise their wives in this sort of marital rape. Battling may not be an attribute in such instances, but women who refuse sexual intercourse are more likely to be assaulted.

Obsessive rape: Assaults including brutal torture and/or deviant sexual practises are most typically ferocious in nature in obsessive rape. Sadistic rape is another term for this form of rape.

In Independent Thought vs Union of India and Anr[3] the Court ruled that if a minor wife, aged fifteen to eighteen years, is the victim of marital rape, her husband's actions will be regarded criminal. The court, on the other hand, did not place much focus on cases when the wife is over the age of eighteen.

[1] 1996 AIR 922, 1996 SCC (1) 490

[2] https://indiankanoon.org/doc/185050052/

[3] (2017) 10 SCC 800