Introduction

When no means NO! Marital rape is a rape.

I have adequately handled and resolved various issues for my clients, either through successful mediation or litigation. Where a significant portion of the matters are in marriage disputes. One of the recent cases that shocked me was that of a currently married woman, who is the mother of a 4-year-old child. The facts of the case are that her husband is a sexual addict who consumes pills to prolong sexual intercourse, which takes up to 45 to one and a half hours. The husband is deadly harsh and hard during intercourse, which causes her endless pain, which may exist even after the sex. This has been the process for the husband since marriage. She had consulted multiple times for vaginal pain, but, she has not disclosed the said reason. Even though this was conveyed to her parents, they only told her that it was normal for married young couples and advised her to adjust.

Convincingly, due to the cruel character of her husband, she shared this issue with her friends, and with their help, she got proper help and decided to move legally against her husband. She does mention this burden to her husband, and firsthand, he is ready to accept it, but upon consuming the pills, he turns into a lustful animal. Due to this, her physical health was getting weaker day by day.

This is merely an example of marital rape. The institution of marriage is sacred for sure, but how come it exists as sacred if either of the spouses suffers mentally or physically from the intercourse and is still not ready to accept the concerns of one another? This is where the significance of marital and sexual knowledge for youngsters becomes inevitable. In recent times, marital rape has become a topic of discussion.

Marital Rape and the Silence

Marital rape, a deeply distressing form of sexual violence, occurs within the confines of marriage. Shockingly, it's not considered a criminal offence in many countries, India included. This is a pressing women's rights issue in India, especially considering that over one-third of married women have reportedly faced sexual violence from their spouses, as per the National Family Health Survey. According to the latest findings from the NFHS, spousal sexual violence remains a significant issue. Shockingly, the data indicates that 82% of married men admitted to perpetrating sexual violence against their current wives, while 13.7% of former husbands were also implicated. NFHS has been releasing data in multiple sets since 1992, but it has not always been organized. Specifically, information regarding spousal sexual violence, a crucial aspect of marital rape statistics in India, has only been systematically recorded since 2005.

In India, there's a glaring absence of legal protection against marital rape. The law doesn't explicitly address non-consensual sexual acts between spouses. While the Domestic Violence Act of 2005 touches upon sexual abuse within marriage, it only offers civil remedies, not criminal consequences. Furthermore, the Indian Penal Code (IPC) has an exception to Section 375 that states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. This was not aligned with the age of consent since the legal age of valid consent in India is 18 years. It was only in 2018 in the case of Independent Thought v. Union of India, that the court made an attempt to align the age of consent in IPC with the legal age of valid consent and explicitly laid down that sexual intercourse with a wife below 18 years of age is rape, consent being immaterial. The legislature has not yet removed this inconsistency. This legal loophole perpetuates cycles of abuse and obstructs progress towards women, severely impacting societal well-being. Sadly, the situation remains largely unchanged, with cultural perceptions often invalidating the seriousness of marital rape. Movies and cultural norms often portray rape by strangers as the only "real" form of rape, contributing to this misconception.

Social customs also play a role in invalidating the concept of marital rape. Despite ongoing debates and demands for change from women's rights activists and legal experts, marital rape remains unrecognized in Indian law. However, there's hope on the horizon, as the Supreme Court has agreed to hear petitions advocating for the criminalization of marital rape. Recognizing and penalizing marital rape is not only crucial for women's bodily safety but also for ensuring equal protection under the law. It's imperative to address this urgent women's rights concern in India to break the cycle of abuse and move towards a fairer society. The legal framework surrounding marital rape is evolving, but immediate action is needed to safeguard the well-being of women across the country.

Marital rape can have severe consequences for its victims, causing physical harm such as bruises, cuts, and, in extreme cases, even death. It also takes a toll on their mental health, leading to conditions like post-traumatic stress disorder (PTSD), anxiety, and depression. Moreover, it can erode the victim's self-esteem and create trust issues with others. In response to incidents like the Nirbhaya Case in 2012, which sparked widespread outrage and demands for stricter laws regarding non-consensual sexual acts, India has seen significant reforms in its rape laws. These changes included amendments to recognize sexual harassment in workplaces as a criminal offence, enacted in 2013, aimed at preventing such offences and providing better protection to victims.

Societal Perceptions and Barriers

Marital rape victims encounter numerous challenges when attempting to report the crime and pursue justice. These obstacles can serve as formidable barriers that hinder survivors from accessing the assistance and legal redress they deserve. Here are some common hurdles:

1. Societal stigma and shame

Survivors often fear judgment, stigma, and shame from society when disclosing the abuse. Cultural and social attitudes that blame or silence victims can make it incredibly difficult for survivors to speak out about their experiences.

2. Fear of retaliation

Survivors may be afraid of retaliation from their abusers, especially if they are still living with them or are financially dependent. The fear of further harm, whether emotional or physical, can dissuade survivors from reporting the crime and seeking help.

3. Lack of awareness and understanding

Many survivors may not realize that what they have endured constitutes rape or a criminal act. Limited awareness about marital rape as a distinct form of sexual violence can prevent survivors from understanding their rights and the legal options available to them.

4. Power dynamics and control

Marital rape often occurs within relationships characterized by power imbalances and control. Abusers may use tactics like gas lighting and emotional manipulation to maintain control over their victims, which can undermine survivors' confidence and deter them from seeking assistance.

5. Lack of legal recognition

In some places, marital rape may not be explicitly recognized as a crime or may be subject to legal exemptions or lesser penalties. This legal loophole can discourage survivors from coming forward, as they may believe there will be little to no consequences for the perpetrator.

6. Inadequate legal systems and support services

The availability and accessibility of legal systems and support services can vary greatly depending on the jurisdiction. Limited resources, long wait times, and a lack of specialized training for law enforcement and legal professionals can create significant barriers for survivors seeking justice.

7. Dependence and financial considerations

Survivors who rely on their abusers financially may face additional challenges in reporting the abuse. Concerns about economic stability, housing, child custody, and the overall disruption of their lives can complicate the decision-making process for survivors.

Legal and Social Support

The ruling by the Gujarat High Court in the case of Nileshbhai Chauhan v. Registrar General R/Special Civil Application No. 4024 of 2016 marks a significant turning point in the discourse on marital rape. The court's assertion that "rape is a grave offence, even if committed by a husband on his wife," challenges the longstanding exemption provided under Section 375 of the Indian Penal Code, which shields husbands from punishment for sexual acts without their wives' consent. This ground-breaking stance represents a departure from the historical acceptance of marital rape and emphasizes the severity of sexual violence within marriage.

The court's unequivocal statement that "rape is rape even if committed by a husband" is in line with global recognition of marital rape as a serious violation of human rights and a form of gender-based violence. This landmark pronouncement has sparked discussions on the urgent need to address marital rape within India's legal framework. It reignites debates on the criminalization of marital rape and sheds light on the challenges faced by victims due to the lack of legal protection. The judgment serves as a significant step forward in acknowledging the importance of legal recourse for victims of marital rape, advocating for their safety and well-being within marital relationships. It underscores the necessity of providing support and protection to those who have endured such traumatic experiences, paving the way for greater awareness and accountability in combating marital rape in India.

The Supreme Court has agreed to consider the early listing of a series of petitions about marital rape. A bench led by Chief Justice of India D Y Chandrachud, has said that it will try to find a slot between Constitution bench hearings in 2022. The Supreme Court had issued an order to pause a trial involving a husband accused of raping his wife after the Karnataka High Court upheld the charges against him. Other than this case, two other petitions about the criminalization of marital rape are also pending before the top court. Now, petitions challenging the Delhi High Court split verdict or verdict on the criminalization of marital rape are also before the court. Remember, in the Delhi High Court case, a split verdict was passed in a batch of pleas challenging the validity of the exception to Section 375 IPC, which provides for the marital rape exception to husbands.

Statistics reveal a disturbing reality

Every 6 hours, a married woman falls victim to abuse, often resulting in severe injuries or even death. Shockingly, about 50% of these women choose not to report the abuse, believing they must fulfil their spouses' sexual needs. Research indicates that some husbands rationalize their nightly rape of their wives as a means to assert dominance. Violent sexual behaviour is often surrounded by harmful stereotypes. Women may wrongly blame themselves for their discomfort during intercourse, while men may dismiss their partners' protests, viewing it as their duty to satisfy their sexual desires. Support for victims of marital rape is crucial. This assistance can come from various sources, including rape crisis centres, shelters, and counselling services. Victims need to understand that they're not alone and that help is available to them.

There are three distinct types of rape:

a) Forced Rape

This type of rape involves the husband using threats, force, and sometimes violence to coerce sexual activity. It typically occurs in relationships where there is already a history of violence, and verbal aggression from the husband may also be present.

b) Battering Rape

This is the most prevalent form of rape and is characterized by a combination of physical beatings and sexual abuse. In some cultures, beatings have been a persistent issue, even into the present day. Battering rape often occurs within the context of ongoing domestic violence, with sexual abuse being just one aspect of the husband's abusive behaviour.

c) Obsessive Rape

This form of rape is characterized by the husband's sadistic obsession with the act of rape itself. The abuser derives pleasure from inflicting violent acts on the victim, and the sexual violence is often accompanied by extreme cruelty.

Education as Prevention

Education and awareness campaigns play a vital role in both preventing marital rape and supporting survivors. By challenging societal norms, promoting consent, and educating individuals about healthy relationships, we can cultivate a culture that rejects violence and respects the autonomy of all individuals (Kanodia & Ray, 2016). Here are some preventive measures and intervention strategies through education and awareness campaigns:

1. Comprehensive sex education

Implementing comprehensive sex education in schools and community settings is crucial. This education should cover topics such as consent, healthy relationships, gender equality, and different forms of sexual violence, including marital rape. By equipping individuals with knowledge and skills, sex education helps foster respectful and consensual relationships (Mehta, 2021).

2. Promoting gender equality

Addressing gender inequality is essential in preventing marital rape. Education and awareness campaigns should challenge traditional gender roles, stereotypes, and harmful attitudes that perpetuate power imbalances in relationships. Promoting gender equality empowers individuals to recognize and respect their partners' autonomy and rights.

3. Consent education

Understanding consent is key to preventing all forms of sexual violence, including marital rape. Education campaigns should emphasize the importance of enthusiastic and ongoing consent in sexual relationships. Teaching communication, boundaries, and respect for personal autonomy helps establish healthy relationship dynamics.

4. Redefining masculinity

Education campaigns should challenge harmful masculinity norms that contribute to marital rape. Encouraging positive expressions of masculinity, such as empathy, respect, and emotional intelligence, can help counter toxic beliefs associated with dominance and control.

5. Breaking the silence

Education campaigns should aim to break the silence surrounding marital rape and encourage survivors to come forward. By fostering a supportive environment, campaigns empower survivors to seek help, access support services, and report abuse.

6. Training for professionals

Professionals in healthcare, education, law enforcement, and the legal system should receive training on recognizing and responding to marital rape. This includes understanding abuse dynamics, trauma-informed practices, and providing supportive services to survivors.

7. Engaging men and boys

Engaging men and boys as allies in preventing marital rape is crucial. Education campaigns should encourage discussions on healthy masculinity, respectful relationships, and the responsibility to challenge violence against women actively.

8. Collaboration and partnerships

Education and awareness campaigns should involve collaboration between government agencies, NGOs, community leaders, and activists. By working together, resources can be pooled, and messages can reach a wider audience effectively.

9. Utilizing media and technology

Various forms of media, including television, radio, and social media, and online platforms, can amplify education and awareness messages. Engaging storytelling and public service announcements can raise awareness, challenge misconceptions, and provide support for survivors.

Conclusion

The global recognition of gender-based violence against women as a grave violation of fundamental human rights is growing. This violence carries significant costs in terms of health, intergenerational impact, and demographic effects. Gender-based violence, as defined by the United Nations, encompasses any act causing physical, sexual, or psychological harm, including coercion or restriction of liberty.

In India, domestic abuse was first recognized as a criminal offense in 1983 under the Indian Penal Code 498-A. However, it wasn't until the enactment of the Protection of Women from Domestic Violence Act (PWDVA) in 2005, effective in 2006, that comprehensive civil protections were established for victims. The PWDVA provides a broad definition of domestic violence, covering physical, emotional, verbal, sexual, and economic abuse, including threats. It also addresses harassment such as illegitimate dowry demands and marital rape. The Act mandates the appointment of protection officers to aid victims and underscores the importance of government collaboration with external organizations in protecting women. Moreover, it extends protection to other women in a household, including spouses and female live-in partners, from domestic violence by husbands, male live-in partners, or relatives.

Addressing marital rape and advocating for sexual education are crucial steps in creating a safer society. By acknowledging and addressing marital rape, we can work towards ensuring the safety and well-being of all individuals within marriage. This requires collective action to break the silence surrounding marital rape and prioritize the importance of consent, healthy relationships, and gender equality. It's essential to empower individuals with knowledge and skills through comprehensive sexual education to prevent instances of marital rape and promote a culture of respect and equality within marriages.

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References:

1. Ishita Roy, Marital Rape Statistics in India: The Alarming Reality According to Recent NFHS Data, Women’s web, 2023. Available at https://www.womensweb.in/2023/03.

2. Ishan Atrey, ‘Marital Rape: Unveiling the Hidden Crime within Intimate Relationships’ (2023) 2 IJHRLR 75-109. Available at www.humanrightlawreview.in/vol-2-issue-4/.

3. Patricia Mahoney and Linda M. Williams, “Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape’ Family Research Laboratory, University of New Hampshire.URL: http://www.ncdsv.org/images