In a marriage, two individuals come together with love, trust, and responsibility to share their lives and vow to provide emotional, mental, and sometimes financial support for one another throughout all stages of life.
The legal definition of marriage is that it is a legally recognized union between two people that establishes rights and responsibilities between them, and sometimes their children and families, under the jurisdiction of civil legislation and personal laws.
Marriage is seen as a sanctuary—a connection in which love, care, and trust ought to flourish—but for many women, it turns into a place of silent anguish. Marital rape occurs when consent is assumed and sexual assault is forced upon a partner.
Nevertheless, this picture might occasionally mask the brutal reality of marriage, particularly when it serves as a front for maltreatment and sexual assault.
India’s legislation does not classify marital rape as a criminal offense.
Marital rape is a societal blind spot where victims are unheard and the institution of marriage is inappropriately used as a barrier for violence. It is not merely a legal issue. Now is the moment to ask a tough but crucial question: If marriage implies yes, then why does it imply no?
WHAT IS MARITAL RAPE?
Forcing a partner into sexual activity without their agreement constitutes marital rape, which is a type of sexual assault. In this case, the husband is often the perpetrator and the wife is the victim. It’s rape that occurs inside the marriage.
A key component is the absence of consent, which does not need to involve actual physical assault. Marital rape is considered a kind of domestic violence and sexual assault. Although, traditionally, sexual intercourse within marriage was seen as a right of spouses, engaging in the activity without the consent of the spouse is now widely considered rape by many communities around the world, which are progressively criminalized and condemned by international treaties.
India’s Regulatory Structure
• IPC section 375:
Rape is defined under Section 375 of the Indian Penal Code as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.”
The exception 2 states that a man is not guilty of rape when he engages in sexual intercourse or sexual acts with his own wife (provided that he is not younger than 18), regardless of whether she plainly says no.
• 2005 Domestic Violence Act
Any kind of sexual abuse in a marriage or live-in arrangement suggests marital rape. But it only provides for civil remedies. In India, victims of marital rape are unable to file criminal charges against their assailant.
• IPC section 498-A (Cruelty)
Deals with the crime of cruelty perpetrated on a woman by her husband or his family. Cruelty, as defined in the section, includes any deliberate behavior that is likely to induce a woman to commit suicide, cause significant injury, or endanger her life or health, whether physically or psychologically, as well as harassment with the intention of forcing the woman or her relatives to comply with unlawful requests for property or security.
Problems with the exception of marital rape
Contrary to the fundamental rights of women, this exception clause contravenes the fundamental rights of women, as stated in Articles 14 and 21 of the Indian Constitution, which guarantee women’s equality, freedom of speech and expression, as well as the right to life and personal liberty. Additionally, it denies women control over their own bodies.
The Judicial System’s Dismissal State: A few of the factors contributing to the low incidence of prosecution in cases of marital rape include:
• Reduced crime reporting as a result of cultural conditioning and a lack of legal understanding.
• Out-of-court settlements as a result of the protracted process and insufficient admissible evidence.
Why marital rape should not be treated as a crime
The sanctity of marriage is viewed as a private relationship in which agreement is implied.
Concerns Over Abuse: Apprehension about fabricated accusations during marital conflicts.
Current Legislation: Sexual abuse in marriage is already addressed by civil remedies (such as PWDVA).
Evidence Issues: It’s hard to establish rape in a marriage.
Social Preparedness: The notion that Indian society is not yet prepared for such a legislation.
The Current State of Marital Rape
Following the Nirbhaya Rape Case in 2012, the justice Verma Committee had recommended making marital rape a crime, stating that marriage does not imply implied and unchangeable permission for sexual acts. However, the Indian government ignored the recommendation.
o In 2016, Maneka Gandhi, who was then the minister of women and child development, argued that the notion of marital rape could not be applied in India due to illiteracy and poverty, even if it is widely acknowledged and understood.
o According to a decision by the Delhi High Court, section 377 of the Indian Penal Code, 1860, cannot be used to criminalize non-penile-vaginal intercourse between a husband and wife in a marriage. “Such an interpretation would be in line with the reasoning and observations of the Hon’ble Supreme Court in Navtej Singh Johar,” Justice Swarana Kanta Sharma added.
Contributed by- Shikha