What Is Marital Rape?
Rape is the act of forced sexual intercourse against a person without their consent. Marital rape is when the same thing is done but by one spouse to their unwilling partner. Rape is considered a heinous crime and like any other crime is a punishable offence in India and most countries of the world.
Yet when we talk about marital rape, India is still one of the only 32 nations in the world that are yet to criminalise it. You might ask why is that so? The reason behind this is the addition of the word “spouse”. The case in point is marital rape by a husband of his wife and it is because they are married that it’s believed the wife has given implied consent to have sex all the time. According to countries where like India Marital rape is not criminalised, a husband cannot be guilty of rape towards his wife merely because she is his “wife” and marriage apparently gives a ticket for him to have sex with his wife whenever he likes regardless of her feelings.
This otherwise known as grounds for “marital immunity” for rape prosecution was laid down by Chief Justice Sir Matthew Hale in The History of the Pleas of the Crown, published in 1736, 60 years after his death. According to him, "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." This theory has found its way into the legal systems of all former British colonies that adopted the common law system.
It is extremely shameful that even in the 21st Century this kind of patriarchal mindset is allowed to exist. Marriage should be a companionship between a male and a female who should still be allowed to have some privacy and consent amongst them, after marriage. The idea that upon becoming a lawful wife she “gives herself up” is almost like saying she’s an object or some kind of property who after marriage belongs to the husband is downright disgusting.
In a country Like India, where we have numerous goddesses being worshipped like Goddess Durga who is the representation of feminine power, Saraswati whose the goddess of wisdom, music, and learning, Lakshmi is the goddess of wealth, abundance, fertility, and Kali is the representation of Shakti also known as the destroyer or the one who liberates the soul and provides enlightenment. In India where females are supposedly themselves considered incarnations of these goddesses we still fail to give them the respect and dignity they deserve. The single woman who experiences rape can be said to have survived a crime but everything changes when she is married? Why the difference in attitude and discrimination, a married woman too has rights, dignity and respect like any other woman she is not someone’s belonging.
Saying that since she is married, she gives up herself to her husband this “willingly” accepting whatever he does technically gives the husband paramount power and control over her. This means that be it Marital rape which is basically domestic violence or any other act of physical or verbal abuse done to the wife by her husband should be accepted without any complaints by her; the reason being she’s his wife! And sadly, this is what happens in India, despite several acts and legislation passed that criminalise and penalise domestic violence most families advise females to be silent and just accept whatever abuse they go through cause otherwise it will make the ‘marriage unstable’ or bring down the family name/honour in the society. This is absolutely pathetic because we are making the wife feel shame for no wrong of hers, but the culprit goes scot-free.
As the theme suggests Marital Rape is undoubtedly an unaddressed stigma that needs much more attention and long term solutions to fix it. So what is being done in India, the steps taken by the government in this direction will be discussed in the next section.
Constitutional Safeguards against marital rape
Section 375 of the Indian Penal Code, 1860 states what rape is and its ingredients. According to the section, a man is said to commit Rape when he has sexual intercourse with a female against her will, without her consent, with her consent obtained after threatening to hurt or kill her loved ones or herself, with her consent but the man is actually someone else who she thinks is another man whom she is married to, With her consent, but at the time of giving consent, either because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent and with or without her consent, when she is under sixteen years of age.
The final line of the section states an exception to it or better known as the marital rape exception which states that the sexual intercourse of a man with his own wife, the wife not being under 15 years of age will not be considered rape.
This exception of Section 375, is what caused the recent debate over the desire to remove it. Numerous petitions filed by many including RIT Foundation, the All India Democratic Women’s Association (AIDWA), and a survivor of marital rape are challenging this exception hoping that marital rape too will be criminalised. But the centre is trying to stick to its statements which say that criminalizing it would lead to threatening the institution of marriage. Though this argument is untenable due to the reasons mentioned below.
During the Nirbhaya case itself, it was recommended by the Verma panel that the marital rape exception should be removed and that the law must specify that a marital or any other relationship between the perpetrator or victim is not a valid defence against the crime of rape or sexual violation. None of these recommendations were actually implemented due to the same reasoning mentioned earlier.
Now to debunk the idea that criminalising Marital rape would threaten the institution of marriage I would like to put forward rights the constitution offers us-
The constitution of India itself acts as a safeguard by protecting each and every citizen and giving them equal rights. Article 21 of the Indian Constitution which protects the Right To Life and The Right to live with human dignity is very important in this scenario. This article guarantees a dignified life to everyone without any encroachment or threats from anyone. This is a basic human right that no one has the right to curtail or violate. Yet if the violation occurs one can instantly move to court. Since this is a fundamental right guaranteed by the constitution of India according to Article 32, they can directly ask the Supreme court to interfere and provide relief. Marital Rape is clearly violating the rights of the wife to a healthy, dignified right. A basic human right like this which is even provided to heinous criminals on humanitarian grounds does not exist for married women? A woman asking/fighting for her basic rights has nothing to do with marriage so then how can marriage be threatened?
Recently, the Right To Privacy was established accepted as an intrinsic fundamental right being protected under Article 21. This right is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, 1948, which states as follows: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation." The right to privacy which was recognised as a fundamental right emerging primarily from Article 21 of the constitution of India, in Justice K.S. Puttaswamy (Retd.) vs. Union of India. This is another major right being clearly violated in marital rape since the wife doesn’t get privacy at all solely because she has a husband she must allow him to have his way with her. Again a violation of a fundamental right calls for action, her being a wife/ married does not change the fact that she’s human and has rights.
A lot of sections from the Indian Penal Code too can be used to protect a wife from the evils of marital rape. For example sections Section 320 for Grievous Hurt, Section 321 for Voluntarily causing hurt and Section 349 for Force can be used for additional emphasis on the trauma and pain suffered by the female during her ordeal.
A strong case can be put up using the above-mentioned safeguards and help women fight against marital rape but it's only possible if the judges accept the implementation.
Status of safeguards for women in Indian society
But now we must answer the question are any of these safeguards actually being used for the safety of women? The answer is a clear and disheartening no. The status of safeguards for women in Indian society is deplorable. The crime of Rape doesn't get punished properly with justice rarely being meted out. Only the victims keep suffering.
So for marital rape which isn't even considered a crime by most, you can imagine the situation. The Centre sticks itself to the narrative that marital rape is a threat to marriage or that it is not rape since a man has the right to have sex with his wife due to implied consent.
They fail to notice the patriarchal mindset and control over females. It's as if they do not wish for it to change at all. If the idea of marriage in India is that marriage gives implied consent to men for sexual intercourse and control over their wives, then this very concept needs to change from the core.
A social awareness drive needs to be set up and families need to be educated on what a healthy and respectful marriage is. That a wife and husband are to be treated as equals. If an instant criminalisation of marital rape is not possible some other form of relief/counselling needs to be created. The Karnataka High Courts Recent order that any rape is a rape and should not be treated differently just because of a marital or any other relationship between the victim & culprit is a step forward in the right direction.
Conclusion
A wife is also a human whose rights don’t take a backseat because she chooses to marry. A female’s identity doesn’t vanish when she gets married, it just takes on new forms. Men should be able to respect their wives and understand the concept of consent. If they marry just to have sex without issues, then maybe it is better to stay single.
India as a country needs to explain these basic things to the literate class for a more mature population to develop. If not the rise in crimes will ultimately make females opt to not marry and slowly things would only get worse.
Instead of drives being held and men threatening to boycott marriage if Marital Rape gets criminalised, they should think if the roles were reversed would the situation be the same? Would they accept sexual advances from their wives against their will? I doubt that would be acceptable or count as implied consent. This is why the sensitivity and gravity of the issue must be taught for a safe future for females.
I hope men learn to respect the institution of marriage, its sanctity and not just use it as a ticket to exploit women for their uncontrollable urges. If marriage is at stake with the criminalization of marital rape then it is the same when it is not being criminalized. A successful marriage can only be one where the two individuals respect each other’s privacy and consent.