Contents 1. Acknowledgement 2. Historical background 3. Trauma of marital rape 4. Physical and psychological effects of marital rape 5.

Types of marital rape 6. Conclusion 7. Recent proposed reforms 8. Position in india 9. Legal position on marital rape

INTRODUCTION OF MARITAL RAPE
Marital rape, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim's spouse. As such, it as a form of partner rape, of domestic violence, and of sexual abuse. The term “Marital Rape” is contentious and creates confusion for rape is widely regarded as a sexual transgression, and marriage is perceived as socially sanctioned sex. Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. Once widely condoned or ignored by law, spousal rape is now repudiated by international conventions and increasingly criminalized. Still, in many countries, spousal rape either remains legal, or is illegal but widely tolerated and accepted as a husband's prerogative. In 2006, it was estimated that marital rape could be prosecuted in at least 104 countries (in four of these countries, marital rape could be prosecuted only when the spouses were judicially separated),[1] and since 2006 several other countries have outlawed spousal rape. In many countries it is not clear if marital rape may or may not be prosecuted under ordinary rape laws. Research literature, particularly in the areas of incidence and effects, may extend the use of the term spousal/marital rape to include divorced/legally separated ex-spouses or unmarried

Social practices and legal codes in India mutually enforce the denial of women‟s sexual agency and bodily integrity. there are issues within it that have sort of shaken the ground basis of the entire union of a man and a woman and this idea of the “sacrosanct” institution of marriage is dished out by the mainstream Indian cinema is a myth and is contrary to women‟s perceptions of reality. consent must be a cooperative act of free will. and therefore. for. Even if it does. it can also come with its own set of problems. or the insertion of objects into the vagina or anus. is just not limited to being with the man you love. Marriage now. Having sex with a person at one time does not “imply” consent to any future sexual acts. Though marital rape is the most common and repugnant form of masochism in Indian society. women have only started speaking about it now.cities-localgovernments. Current state laws. Sexual acts include but are not limited to penile-vaginal intercourse.org/uclg/upload/docs/notaminutemore-endingviolenceagainstwomen. often treat rape by ex-spouses or intimate partners as different than marital rape. it is hidden behind the iron curtain of marriage. the insertion of genitals into the mouth or anus. According to rape statutes.cohabiting partners. which lie at the heart of women‟s human rights. legally equivalent to stranger rape1. wonder how much of it exists today. Marriage is no more a „sacrosanct institution‟. on the contrary. the issue of penalty remains lost in a cloud of legal uncertainty. including the biggest. respect and want to spend your entire life with but. The law does not treat marital rape as a crime.pdf . however.that of „Marital Rape‟ which has become a stark reality of today‟s world or perhaps. Finkelhor and Yllo (1985) found it useful to distinguish between different forms of coercion which occurs in husband-wife relationship and facilitates marital rape:- 1 http://www. Marriage has always been known as a sacred institution but.

most societies. is at the core of rape. Threatened or actual physical coercion.95 . even violently. The harm was treated as a wrong against her father or husband. If a woman was abducted and sexually molested. therefore. Interpersonal coercion occurs when a woman has sex with her husband in the face of threats that are not violent in nature. it does not fall within a useful definition of rape. married women ravished at the hands of their partners never formed the subject of rape laws. History reveals that there were direct ties between law. property and rape2. 1993) p. but merely the theft of a woman against the consent of her guardian or those who had legal power over her. when such threats are not associated with any physical coercion. with the implied threat that she will get hurt if she doesn‟t cooperate. the crime was not against her body. Husbands who threaten to withhold money or have an affair or who become nasty toward the children are guilty of interpersonal coercion. Not surprisingly. the sex that follows cannot regarded as rape. In fact. HISTORICAL BACKGROUND The concept of marital rape was unknown in history. the laws bestowed an absolute immunity on the 2 Julia R. Rape and Inequality (Sage Publications. The implied threats are especially potent in relationships where a husband has battered his partner in the past. The actual use of physical force has a wide range from holding a woman down with greater size and strength to inflicting extensive injuries. It was synonymous to abduction. Nevertheless. „Raptus‟ in the sense of violent theft. The coercive nature of such threats is especially salient in a marriage where a woman‟s dependency and powerlessness undercut her bargaining position. considered itacceptable for men to force their wives to sex. applied to both property and person. in contrast. Even the concept of „rape‟ as an invasion of the physical and psychological integrity of woman was non prevalent. especially when accompanied by other forms of male entitlement and control. California. Social coercion regarding marital sex is institutionalized in our culture and internalized in individuals.Social coercion is the pressure women feel as a result of cultural expectations or social conventions. Physical threats can range from explicit threats to kill a woman if she doesn‟t comply. While such coercion can be degrading and detrimental. and Herman Schewendinger.

research indicates that marital rape often has severe and long-lasting 3 Ibid 2 . let alone within marriage. aged between 15 to 49 have been beaten. PHYSICAL AND PSYCHOLOGICAL EFFECTS OF MARITAL RAPE Despite the historical myth that rape by one‟s partner is a relatively insignificant event causing little trauma.3 TRAUMA OF MARITAL RAPE Despite the unwillingness to recognise marital rape as a crime. solely on the basis of marital relations. regardless of their educational qualifications. In 2005. that often accompanies domestic violence. as well as the exposure of family privacy. the fact remains that marital rape is prevalent throughout society. raped or forced to provide sex. Women themselves don‟t make a noise about it or talk about their experiences. Most women don‟t even think of rape by their husbands as marital rape. This is because cultures worldwide discourage their women from openly discussing sexual matters. Marital rape is a unique problem that encompasses both physical violence and the psychological trauma of being raped by someone who has taken marriage vows to love and honor his or her spouse. The latter‟s right to freedom of choice in marital relations and the husband‟s duty to respect that right was completely overshadowed by the patriarchal laws. Thus. Women‟s bodies are outraged. Thus a comprehensive framework for marital rape must include aspects of the emotional and physical cruelty. 6787 cases were recorded of women murdered by their husbands or their husbands‟ families.husband in respect of his wife. class or status. 56% of Indian women believed occasional wife-beating to be justified. The UN Population Fund states that more than 2/3rds of married women in India. It asserted the husband‟s unquestioned right to sexual intercourse with his wife and her duty to submit.

intense fear. Some marital rape survivors report flashbacks. stillbirths.22). fatigue and vomiting. and knife wounds that occur during the sexual violence. In fact. depression. TYPES OF MARITAL RAPE It appears that Sexual violence is most likely to occur along with all other forms of violence like physical violence. problems in establishing trusting relationships. Specific gynaecological consequences of marital rape include miscarriages. torn muscles. bladder infections. shock. p. soreness. and increased negative feelings about themselves. Women who have been battered and raped by their husbands may suffer other physical consequences including broken bones. battering may not be characteristic of these relationships. This has led some researchers to argue that marital rape is “just one extension of domestic violence” (Johnson & Sigler. sleep problems. Long-term effects often include disordered eating. lacerations. suicidal ideation. or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. emotional violence and economic violence. 1997. husbands use only the amount of force necessary to coerce their wives. Women who are raped by their partners are likely to suffer severe psychological consequences as well. Violence can not be compartmentalized. bloody noses. Finkelhor & Yllo (1985) have tried to categorize the sexual assault into three major following forms:Battering rape: In “battering rapes”. The physical effects of marital rape may include injuries to private organs. black eyes. Psychological effects are likely to be long-lasting. The assaults are typically after the woman has refused sexual intercourse.consequences for women. . Some of the short-term effects of marital rape include anxiety. depression. Force-only rape: In what is called “force-only” rape. bruising. sexual dysfunction. It is a continuum. and emotional pain for years after the violence. and post-traumatic stress. Viewing rape in marriage as a form of domestic violence is logical given that researchers have found that the majority of women who are raped by their partners are also battered. The majority of marital rape victims fall under this category. infertility and the potential contraction of sexually transmitted diseases including HIV. Some are battered during the sexual violence. women experience both physical and sexual violence in the relationship and they experience this violence in various ways.

POSITION IN INDIA There is no slightest of doubt that we live in patriarchal society. LEGAL POSITION ON MARITAL RAPE The marital rape exemption can be traced to statements by Sir Mathew Hale. Laws bestowed an absolute immunity on the husband in respect of his wife. In the present day. This society vehemently denies social and economic autonomy of women and its appropriation of women as male sexual property are only too willingly protected by the state and its laws. whom she cannot retract.Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive” rape. Not surprisingly. He wrote. for by their mutual matrimonial consent and contract. Chief Justice in England. a women does not have the right to refuse sex with her husband. these assaults involve torture and/or “perverse” sexual acts and are often physically violent. the wife hath given herself in kind unto the husband. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women. studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. . married women were never the subject of rape laws. solely on the basis of the marital relation. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “licence to rape” their wives.” This established the notion that once married. during the 1600s. Sexual assault by one‟s spouse accounts for approximately 25% of rapes committed. “The husband cannot be guilty of a rape committed by himself upon his lawful wife. thus.

an offence is committed. if she be between 12 to 16 years. mentioned as its exception clause. an offence of rape within marital bonds stands only if the wife be less than 12 years of age. the wife not being under 15 years of age. Atleast the discussion openly of it. the awareness remains dismal. marital rape is not considered as an offence in India. in a very narrow purview lays down that. to quietly serve and not wash dirty linen in public. tells us that the legislations have been either nonexistent or obscure and everything has just depended on the interpretation by Courts. Section 375. a dream for many Indian women still is an undeniably important factor for being heard and respected. This section in dealing with sexual assault. the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife. however. there is no remedy the woman has. docile and that of a homemaker. there is no legal protection accorded to the wife. is not rape.” Section 376 of IPC provides punishment for rape. Once. and is not under 12 years of age. Economic independence. attracting milder punishment. in direct contravention of human rights regulations. Sex has been treated as obligatory in a marriage and also taboo.Though we have advanced in every possible field. With the women being fed the bitter medicine of being “good wives”. sexual . only those up to the age of 16? Beyond the age of 16.“Sexual intercourse by man with his own wife. one of the most humiliating and debilitating acts is not an offence in India. which indicates that many survivors of marital rape. the age crosses 16. even counseling remains inaccessible. hence. in which case. Despite amendments. the provision of rape in the Indian Penal Code (IPC). How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse. The wife‟s role has traditionally been understood as submissive. According to the section. less serious. A look at the options a woman has to protect herself in a marriage. has echoing very archaic sentiments. report flash back. law commissions and new legislations. Legislators use results of research studies as an excuse against making marital rape an offence. he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

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. which is just ironical. The narrow definition has been criticized by Indian and international women‟s and children organizations. The very definition of rape (section 375 of IPC) demands change. For these reasons. this is not. The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape. dealing with cruelty. is not part of the institution. natural justice or equity. Surprisingly.dysfunction. not just penal penetration. where is the standard of measure or interpretation for the courts. forceful. The importance of consent for every individual decision cannot be over emphasized. by getting it on demand and through any means possible. but not her body. . A woman can protect her right to life and liberty. but also threatening. because the judiciary and the legislature have been silent. of „perversion‟ or „unnatural‟. the benefit of doubt. to protect themselves against “perverse sexual conduct by the husband”. 1.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. they sometimes continue living with the abuser. but to give the victim and not the criminal. But. Even international law now says that rape may be accepted a s the “sexual penetration. A husband exercising sexual superiority. however slight. within her marriage. or the penetration by any object. sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions. even years out of the violence and worse. emotional pain. „Rape‟ should be replaced by the term „sexual assault‟. as yet. who insist that including oral sex. in any law book in India. coercive use of force against the victim. even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount to excessive interference with the marital relationship. A marriage is a bond of trust and that of affection. Women so far have had recourse only to section 498-A of the IPC. Emphasis on these provisions is not meant to tantalize.

The prevalent viewpoint is that when a woman marries. By the same token. 5. the court shall presume it to be so.2. „Sexual intercourse as contained in section 375 of IPC should include all form s of penetration such as penile/vaginal. Section 509 of the IPC was also sought to be amended. 7. 6. 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. A new offence. Sadly. 3. section 376 A was to be deleted. Under such conditions. women find it difficult to talk about the physical violence that takes place under the guise of conjugal relations in the marriage. Union of India and Others [2004 (5) SCC 518]. a woman is given to understand that her desires and dreams must henceforth be subject to those of her husband. Any mention of rape or sex fills them with shame. providing higher punishment where the offence set out in the said section is committed with sexual intent. finger/vaginal. namely section 376E with the title „unlawful sexual conduct‟ should be created. Consciously or otherwise. Marital rape: explanation (2) of section 375 of IPC should be deleted. a husband cannot be said to have raped his wife. the police and the judiciary must be sensitised to deal with rape cases. she is willing to fulfilling her husband‟s conjugal rights. On the same reasoning. . Under the Indian Evidence Act (IEA). 4. in India. marriage is considered the definitive experience in an adult woman‟s life. 8. finger/anal and object/vaginal. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law. „sexual assault on any part of the body should be construed as rape. penile/oral. when alleged that a victim consented to the sexual act and it is denied. Once she has made this commitment. In the light of Sakshi v. a woman cannot refuse to have sex with her husband. Since sexual relations are part of the marriage set-up. she cannot back out of it. Before marital rape is made an offence.

prompting women to stay in abusive marriages. 1973. the Code of Criminal procedure (CrPC). The same reasons act as a negative motivator. marriage remains the only route to social acceptance of adult womanhood: there are strong social incentives on women to enter into marriage. to recognise new categories of sexual assault besides redefining rape by including sexual assault in any form in its definition. economic or political dominance. simply because life outside marriage is not regarded very highly. and the Indian Evidence Act. “The definition of rape needs to be expanded to take into account forms of sexual assaults not covered in the existing definition under the IPC… the proposed bill recognises marital rape as an offence and also incorporates a specific provision on sexual assault by a relative or a person in position of trust or authority or in a position of social. including their husbands. 1872. Accepting that women go through the most heinous forms of abuse under the name of marriage may be the first step towards protecting women. However.” said justice Geeta Mittal of Delhi high court.In India. by introducing “marital rape” as a separate provision under the proposed new law against rape and sexual assault. The proposed penalty for marital rape will be three years‟ imprisonment with fine. There is no law at present to identify marital rape and penalise husbands for forced sex with their wives but the Domestic Violence Act that covers sexual abuse as part of violence on women. RECENT PROPOSED REFORMS This year as the world celebrated International Women‟s Day in March. the government had proposed bill to protect women from all possible tormentors. . The department of legal affairs has drafted the Criminal Law (Amendment) Bill based on recommendations of the women and child development ministry (WCD) and the National Commission for Women (NCW) to amend certain sections of the Indian Penal Code (IPC). husbands may find themselves behind bars if their wives lodge a complaint. Until then women will continue to be abused and raped by the one person they trusted enough to want to spend the next seven lifetimes with. soon.

a radical overhauling of the structure of sexual offences is not advisable4. who is above 18 years of age. men‟s organisations said the changes in law would essentially damage the fabric of a family system. as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges theprevailing myth that rape by one‟s spouse is inconsequential . CONCLUSION It is conceded that changing the law on sexual offences is a formidable and sensitive task. But. mere declaration of a conduct as an offence is not enough. also specifies under section 376 (1) that if a man commits sexual assault even on his wife. There is also a need to educate the masses about this crime. where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law. the proposed new law. The immediate need is criminalization of marital rape under the Indian Penal Code. though. Further. and more so. Something more is required to be done for sensitizing the judiciary and the police.While women groups say that marital rape is a worldwide phenomenon and almost 50% of women face forced sex by their husbands. there is need for substantial changes in the law on sexual offences such as making them gender-neutral and eliminating the inequalities. in a country like India. shall be punished with imprisonment which may extend to three years and shall be liable for a fine. besides terming sexual relationship of a man with a wife under the age of 18 as rape.

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