ARTICLE ON MARITAL RAPE

What is marital rape?

Marital rape is a form of domestic violence where you have sexual intercourse with your
spouse without the spouse’s consent. Although this act is considered highly unlawful and
cruel by the international community, in some countries still the laws are not enforced or
marital rape remains outside the scope of criminal law. These issues of sexual and domestic
violence within the family drew everyone’s attention in the 20th century, many countries still
do not enforce these laws due to many factors ranging from reluctance of authorities to
pursue the law to lack of public knowledge about Marital rape.

What is the current scenario of marital rape in India?

“I do not think that marital rape should be regarded as an offence in India, because it will
create absolute anarchy in families and our country is sustaining itself because of the family
platform which upholds family values,” Deccan Herald quoted Deepak Misra as saying. This
is the level of awareness a former chief justice of India has.

Forced sex is considered a crime only when the wife is below the age of 15 according to
Section 375 of Indian Penal Code, this in itself is not possible as the legal age for marriage is
18. This law is outdated enough to be changed. So technically speaking marital rape is not a
criminal offence in India. Now marital rape victims have to take a recourse to the Protection
of Women from Domestic Violence Act 2005(PWDVA). The PWDVA, which came into
force in 2006, outlaws marital rape However, it offers only a civil remedy for the offence
and not criminal justice.

What is our Government’s stand on this?

The Government too has taken a reactionary stand on the topic of Marital rape by saying that
laws against marital rape would “destabilise the institution of marriage” and would become a
tool to “harass spouses” in RIT Foundation vs Union of India which is pending before the
Delhi High Court. The Government has this bizarre understanding of marital rape where
stopping this crime would affect the very institution of marriage and family. It is difficult to
understand how having sex with one’s spouse without her consent is any less brutal than rape
per se. Such ignominious behaviour of the Centre echoes our innate societal misogyny, which
over the years has led to further subjugation of women.
Why India should criminalise marital rape as soon as possible?

1. Males, as a dominant class, have internalised this belief that women are their property
and the value of women as a property is measured largely by their “sexual purity”.
Rape, therefore, can be theorised as a property crime against a woman’s husband or
father. In ancient times, a raped woman was considered relatively less valuable as
property, and penalties for such crime often involved fines or other compensation paid
not to her but rather to her husband or father. Marital rape exemption is evidently a
legacy of this approach. Since an act against one’s property is generally not
considered as a crime, therefore, it is assumed that no crime is committed when a man
forces intercourse upon his wife, since she is under his possession and ownership.
2. Marital rape is considered as the violation of Fundamental Right guaranteed under
Article 14 of the Indian constitution which guarantees the equal protection of laws to
all persons. By depriving married women of an effective penal remedy against forced
sexual intercourse, it violates their right to privacy and bodily integrity,
aspects of the right to life and personal liberty under Article 21, by differentiating
them from unmarried women.

What do statistics say?

Out of the total number of rapes reported to NFHS (though it is an informal survey whose
premise was to provide anonymity), 97.7% rapes were committed by the people known to the
victim, out of which marital rapes accounts for 2/3rd. UN study has established the fact that
75% men want their wives to agree to sex. There have been many heartrending stories of
women raped every night, even during pregnancy and child birth. It is a physical as well as
mental trauma because the perpetrator is known to the person, often very close. It is a bitter
reality even in developed nations.

What is my stand on this?

Marital rape is no less offensive than murder, homicide or rape per se. It destroys a human’s
dignity and honour; it also reduces her to an object used for one’s own convenience and
comfort. It not only reduces the woman’s life to that of a living corpse but also her will to live
with dignity in the society. Marital rape is not only an attack on the particular human being’s
life but also her Right to live with dignity. After making high pitch for the government’s
flagship project “Beti Bachao Beti Padhao”, I thing it’s high time the Government actually
fights for its “Beti’s” dignity and honour. Our legal system does not provide any solid
framework for victims of marital rape. Under the Hindu Marriage Act, 1955 it is the “duty”
of the wife to provide sexual satisfaction to her husband, a thought very archaic though
congruent with the thoughts of a patriarchal society. Unfortunately, this is the stage at which
India stands where marital rape is still unrecognised by IPC and where the government is of
the opinion that criminalising marital rape would “diminish the value of marriage as an
institution”. Just because of this lame scepticism the government should not try to avoid such
important issues.  Marital rape is a very grey area, in present times it may be very difficult to
enforce laws against marital rape but shouldn’t the laws and their implementation envision an
equitable future and a utopian society.