Law · Public Policy

Marital Rape: The Dark Truth of Sex behind Closed Doors in India

Marital rape, in the general sense, occurs, when your spouse forces you to take part in certain sexual acts without your consent. It is a form of intimate partner violence, i.e., an abuse of power by which one spouse attempts to establish dominance and control over the other. Research shows that it can be equally, if not more, emotionally and physically traumatizing than rape by a stranger.

MEANING OF MARITAL RAPE

Marital rape or spousal rape is non-consensual sex in which the perpetrator is the victim’s spouse. It is a form of partner rape, of domestic violence and of sexual abuse. In India, a staggering 94% of rapes are committed by perpetrators known to the victim, but hidden from view is a huge number of women with no legal road — those raped by their husbands.

Indian men, since time immemorial, have been dominating women physically. They often look down upon them. It was perceived by men in India that the husband has full right to be physical, in whichever way he feels like, and the wife has agreed to marry knowing fully well that she has to give in to the demands of her husband. But now the Scenario has changed. The women have become strong and empowered . They do not obliged themselves to be a toy for men – be it their husband. The world celebrated international women day on 8th March 2015, but in some place of the world there is always a women fighting for her right, peace, and most importantly life.

Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts. Section 354 of the Indian Penal code punishes “assault or criminal force to a woman with intent to outrage her modesty.” And section 377 of the Indian Penal code penalizes “carnal intercourse against the order of nature” — a law that also subsequently reprimands homosexuality. But rape within marriage is not explicitly acknowledged.

A Delhi-based MNC executive had told the court that her husband repeatedly resorted to sexual violence but she was helpless as marital rape was not a crime in India.”You are espousing a personal cause and not a public cause. This is an individual case,” a bench of justice AR Dave and R Banumathi said, refusing to take up her plea.  The woman had challenged the validity of an exception to Section 375 of the IPC that says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without consent. The law commission in its report to the government in March 2000 recommended his wife, that forced sexual intercourse by a husband be treated as an offence just like any physical violence by a man against a woman.

According to UN Women’s 2011 report, marital rape is a criminal offence in about 52 countries, including 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, Czechoslovakia and neighboring Bhutan. The report said 127 countries did not explicitly criminalize rape within marriage. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behavior.

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

  1. ‘Rape’ should be replaced by the term ‘sexual assault’.
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
  3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
  4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
  5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
  1. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
  1. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
  2. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.3

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil remedies to what the provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

The world is not able to differentiate between purpose and pleasure. You are duty bound to give children but causing harm to oneself and destroying the mental peace does not accounts to duty of a wife. Marital rape is offensive to morality and liberty and any kind of sexual perversity requires to be exposed, addressed and condemned. Countless strong women survive the sexual assaults that occur in the millions every year, but every rape leaves a scar; no one ever fully heals. Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination. In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.

References:

  1. wikipedia.org/ Marital_rape wiki/
  2. intimes.comdia/city/delhi/HC-rejects-marital-rape-petition-for-live-in-ties/articleshow/46498386.cms
  3. http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html

About the Author

Aayushi AgarwalAayushi Agarwal is pursuing her B.Com. LL.B. from Indian Institute of Legal Studies, Siliguri, West Bengal. She is also pursuing the Company Secretary course under ICSI. Her hobbies include writing, listening to music, travelling and exploring new activities. She aspires to become a good advocate. She is passionate about writing articles and papers on social issues that promote debate and discussion. Currently she is interning with the Model Governance Foundation.

2 thoughts on “Marital Rape: The Dark Truth of Sex behind Closed Doors in India

  1. Great article, the conclusion that what we require is awareness among men is a great point, but I feel that it should be a long term goal. To remedy the current situation Marital rape should be given legislative recognition.

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