When the term rape is mentioned, people typically think of an assault by a stranger or a malicious individual. The idea of rape within marriage is often overlooked. Many women themselves struggle to accept that a husband can rape his wife. After all, how can a man be accused of rape if he is exercising his conjugal rights? This suggests that a woman has no autonomy over her own body and that her will is subordinate to her husband’s. Although marital rape is one of the most prevalent and abhorrent forms of abuse in Indian society, it is concealed by the institution of marriage.

Marital rape, regardless of its legal definition, can be described as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained through force, the threat of force, or when the wife is unable to consent. Despite its widespread occurrence, marital rape has received minimal attention from social scientists, practitioners, the criminal justice system, and society at large. The term ‘rape’ originates from the Latin word ‘rapio’, meaning “to seize.” Thus, rape is a forcible seizure or the ravishment of a woman without her consent, using force, fear, or deception. It is an act of violence against a woman’s private person, an utter outrage. Rape represents the ultimate violation of a woman’s self.

The Supreme Court of India has rightly termed it as ‘deathless shame and the gravest crime against human dignity.’

Marital rape is not just a physical assault but also a severe violation of the victim’s entire being. Despite various laws in India addressing violence against women at home, such as those against dowry, cruelty, domestic violence, and female infanticide, the most shameful aspect within marriage — marital rape — has yet to be recognized as a crime by policymakers. This form of abuse often involves repeated rapes, including vaginal, oral, and anal, perpetrated by husbands who use coercion, threats, physical violence, or weapons to force their wives into non-consensual sex, sometimes even when they are asleep.

Marital rape is a widespread issue affecting millions of women worldwide, yet accurate data is difficult to obtain due to underreporting. Many women do not report these incidents due to family loyalty, fear of retaliation from their abuser, the inability to leave the relationship, concerns for their children’s future, or the absence of strong legal protections for victims of marital rape. Despite being underreported, marital rape has a profound impact on the lives of women who endure it. In the United States, for instance, statistics indicate that approximately one in every seven or eight married women has experienced rape or attempted rape by her husband.

Section 375 of the Indian Penal Code (IPC), proposed as Section 63 of The Bharatiya Nyaya Sanhita, 2023, defines rape as sexual intercourse with a woman against her will, without her consent, through coercion, misrepresentation, fraud, or when she is intoxicated, deceived, or mentally incapacitated. It also categorizes any sexual intercourse with a girl under 18 years of age as rape. Marital rape involves a husband having non-consensual sexual intercourse with his wife. Exception 2 to Section 375 (Proposed Section 63 of The Bharatiya Nyaya Sanhita, 2023) exempts husbands from being charged with rape for non-consensual sex with their wives if the wife is over 15 years old.

On October 11, 2017, India’s Supreme Court declared this exception unconstitutional, ruling that sexual acts with a child under 18, even if married to the perpetrator, are considered rape. However, the court did not address the legality of non-consensual sex between a husband and wife when the wife is over 18 years old.

International laws argue that marital rape should be criminalized, as it violates a woman’s fundamental rights, including the right to life, privacy, equal protection under the law, and the right to refuse. This perspective asserts that marital rape inherently infringes on a woman’s human right to make autonomous decisions.

Does Marital Rape Have Constitutional Validity?

Marital rape represents the most severe form of torment a woman may endure within her marriage. Every woman deserves equal protection under the law, guaranteed by Articles 14 and 21 of the Constitution, which uphold the right to life and personal liberty. However, on the other hand, what about false rape allegations against an innocent man? Are there any legal safeguards to protect individuals from such wrongful accusations? How can a husband prove that the sexual act was consensual and not forced, especially when his wife accuses him of marital rape? What evidence can he present? False rape accusations can be equally damaging and detrimental to one’s reputation.

Are rape laws gender biased in India and are they being misused?

To gain a better understanding of how rape laws are sometimes misused in India, let’s look at recent cases where courts recognized malicious intent by women and dismissed their complaints.

In 2019, Delhi police arrested six women who had entrapped a man to extort money, highlighting numerous instances where women have employed such tactics for financial gain and harassment. Yet, why do we seldom discuss such cases and focus instead on harassment against women? Are we inadvertently perpetuating the belief that women are always victims and men always perpetrators? Shouldn’t we acknowledge the truth that women can also victimize men? Times have changed, and so should our laws.

In a case where a plea to dismiss a First Information Report (FIR) for rape was rejected, both parties claimed to have resolved their issues amicably and reached a compromise. “In this instance, it appears that both parties have filed rape complaints without considering the seriousness of such an offense,” Justice Prasad remarked, adding, “Allegations under Section 376 IPC cannot be made lightly to settle personal disputes.”

Another instance involved the Delhi High Court quashing an FIR under rape charges, noting that prosecuting the accused would serve no useful purpose as the complainant had admitted to making false allegations and tendered an unconditional apology.

There have also been cases where girlfriends accused men of rape after developing a consensual sexual relationship based on a false promise of marriage. However, the Supreme Court clarified that not every broken promise to marry constitutes rape. The Court ruled that “a promise to marry, if not fulfilled due to genuine reasons, does not amount to rape.”

These examples illustrate the complexities and nuances involved in cases of alleged rape and highlight the importance of ensuring that justice is served without prejudice or false accusations.

Recent plea for recognizing marital rape as a criminal offense.

The bench led by Justice Rajiv Shakdher heard public interest litigations (PILs) filed by NGOs RIT Foundation and All India Democratic Women’s Association, seeking to remove the exception granted to husbands under Indian rape law. In response, the Union Government filed an affidavit stating that criminalizing marital rape could potentially undermine the institution of marriage and could be misused by wives to harass their husbands. The affidavit argued that India is not compelled to criminalize marital rape simply because Western countries have done so.

Why should marital rape not be criminalised?

Before criminalizing marital rape, it is crucial to precisely define what constitutes “marital rape” versus consensual marital relations. Granting women the power to determine consent raises concerns about violating husbands’ conjugal rights if the act is deemed consensual. Removing the exception could potentially be misused to harass husbands, destabilizing the institution of marriage.

Concerns over Law Misuse: Jurists and men’s rights activists warn about the misuse of laws, citing that a significant number of dowry cases are falsely reported. Deepika Narayan, a men’s rights activist, highlighted that in 2020, over 111,549 cases under Section 498A were registered, of which 5,520 were closed by police as false or due to errors in fact or law, civil disputes, etc. This misuse has led to innocent families suffering, with some husbands tragically resorting to suicide.

Complex Burden of Proof: Criminalizing marital rape would present a complex challenge for husbands to prove their innocence. Unlike other crimes, proving consent in private sexual acts without surveillance is extremely difficult. This burden of proof, similar to dowry cases, could unjustly ruin lives and families.

Gender Neutrality Concerns: Existing rape laws are biased against men, lacking provisions for their protection. Criminalizing marital rape could further jeopardize husbands, even if they have no history of violence or abuse.

Protecting Men’s Rights: Our legal system requires a significant overhaul to demonstrate that men’s lives and rights matter. It is essential to protect vulnerable women while ensuring fairness for innocent men through mass awareness and respect for free consent.

Conclusion: The debate on marital rape is intensifying in India, emphasizing the need to uplift women without unjustly penalizing men. A balanced and practical approach is essential, steering clear of ideological biases and ensuring justice for all parties involved.

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