MARITAL RAPE - IT’S HIGH TIME NOW

Abstract
The greater part of the world's nations have not criminalized rape in marriage. While rape
in general is criminalized in these nations, but rape committed by a husband to his wife is
totally legitimate. The human rights infringement inhere as seen where a human soul is
raped but she cannot protect herself from it rather she is bound to accept it as and when it
comes to her. She can’t take a stand against it because she knows nobody, in fact not even
the judicial system or the law of the land, will support her for this. This issue is been fairly
recognized by our society but nothing has been done in this regard. Somehow marital rape
is a type of gendered savagery that has gotten away both criminal law approvals and
human rights endorsement in an large number of the world's countries. This silence in the
law is giving men who rape their wives, a legal immunity to do such acts freely without any
fear, thus legitimizing this practice. This is a problem of human rights which is shouting out
for redress, both socially and legally. Non criminalization of marital rape in international
law and human rights norms is a picture of failure to comply with international human
rights norms. The significant gaps regarding this law around the world indicate the need of
human rights law work still to be done in this area. We concluded by recognizing the high
need for criminalizing marital rape and protecting and giving women a dignified and worth
living life.

INTRODUCTION

What is marital rape? First we need to know the definition of rape, so to understand what is
marital rape and how is it different from rape. Section 375 of the Indian penal code defines
rape. It means rape is an unlawful sexual intercourse between a male and a female without
the consent of the female or against her will. Whereas Marital rape or spousal rape is the
act of sexual intercourse with one's spouse without the spouse's consent1. The mail
element which terms this sexual intercourse between husband and wife into rape, is the
lack of consent from the wife for the same. Marital rape in some circumstances is also
regarded as domestic violence and sexual abuse against the women.

1
https://en.wikipedia.org/wiki/Marital_rape
NON-RECOGNITION OF SPOUSAL RAPE IN PAST YEARS

Historically, sexual intercourse within marriage, with or without the consent of the wife
was considered as the right of the spouses. Sir Matthew hale gave the idea which was
posthumously published in 1736, stated that, the wife by their mutual consent and
contract of marriage gave herself unto her husband, which she cannot retract therefore the
husband cannot be guilty of committing rape by himself on his lawful wife. The theory of
unity came in this regard where after marriage husband and wife are considered as one
unit and therefore a husband cannot be guilty of committing any sexual offences against
himself. In that time of orthodox society (may be in some parts of current society as well)
Women were consider as property, father’s property before marriage and upon marriage
husband’s property. So as per this concept husband can do anything until he has the
possession of the property so even if he sexually assaults his wife that would not amount to
any criminal offence or rape. But if he do the same with other person’s wife than that would
amount to steal on others property and would make the person accountable for the offence
committed. Similarly when a sexual intercourse is committed before marriage, it would
amount to steal on father’s property. So Rape laws in that period were made to protect the
property interest of men and not for the safety and security of women life and dignity. In
my opinion women of that time had no meaning of their existence than to be used as a
property by the dominating males of the family. Hampton thus claims that “rape as it occurs
in our society is a moral injury to all women insofar as it is part of a pattern of response of
many men toward many women that aims to establish their mastery qua male over a
woman qua female. Rape confirms that women are ‘for’ men: to be used, dominated, treated
as objects2” 

LEGAL VIEW OF MARITAL RAPE

Till date marital rape has not been recognized as an offence and hence there is no
particular law for it. The exception 2 of the section 375 of IPC (‘exception clause’) gives the
exemption — “Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape”. 3 Since the main element to constitute rape is
consent, consent is presumed in case when the victim and the perpetrator are in a
relationship of marriage. There are sections in the IPC which exempt the spouses from its
application. while Law doesn’t criminalize marital rape but a specific form of marital rape
is criminalized in our legal system, i.e. non-consensual sexual intercourse when the wife

2
https://plato.stanford.edu/entries/feminism-rape/
3
Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of marital rape in India: understanding its
constitutional, cultural and legal impact,manupatra ( 11,11,2018, 06:50pm),
http://docs.manupatra.in/newsline/articles/Upload/8787A55C-D93F-4589-8A68-A9A032AFAF0E.pdf
and husband are living separately on account of judicial separation or otherwise. That is
when a husband does a sexual intercourse with his wife who is living separately either
under a decree of separation or otherwise, without her consent, shall amount to a criminal
offence and shall be liable for a punishment for a period of two years which can also
extend to a period of seven years and can also be liable for a fine. But a challenge to
successful prosecution is that what Estrich says the “assumption of risk approach to
culpability”4: it is a common belief that women who put themselves into compromising
positions have not right to complain when they are compromised. Prevalence of such rape-
supportive believes can restrain even well-intentioned prosecutors to take such legitimate
cases with the view that juries will refuse or will not support for conviction of the accused.

PRESENT SCENERIO and CRITICISMS

In the present scenario, marital rape is still common and unwillingly accepted by the
women at large because they have a belief of keeping such issues in private and not taking
them outside the walls of the room. Feminists of the era demand the control of woman over
her own body, her positioned consent; her fertility and her marital sexual relations, right to
take decision to procreate instead of substituting them with contraception and abortions
with ultimately damage her body. “The marital rape exemption or defense became more
widely viewed as inconsistent with the developing concepts of human rights and
equality5.” spousal rape is an offence against liberty, dignity, self determination, morals and
physical integrity of a human being (which is generally a female in 91% of the cases.) It is
against natural rights, which are also known as divine rights, a human being has. Dworkin
contends that, due to the threat of rape, “all women live in constant jeopardy, in a virtual
state of siege6”. Living in a state of fear and distress is against the right to live with dignity
under article 21 of the Indian constitution since it infringes the personal autonomy of the
individual. Rape is a shameful heinous act on grounds of humanity . further in our Indian
society instead of sympathizing with the victim, she is been considered impure, helpless
and weak.

4
Standard encyclopedia of philosophy, Feminist perspective on rape, (11,11,2018, 08:00pm)
https://plato.stanford.edu/entries/feminism-rape/
5
https://en.wikipedia.org/wiki/Marital_rape

6
Standard encyclopedia of philosophy, Feminist perspective on rape, (11,11,2018, 09:00pm)
https://plato.stanford.edu/entries/feminism-rape/
CASE LAW

The Andhra Pradesh High Court on account of T. Sareetha v. T. Venkata Subbaiah

('Sareetha') was the main case to strike down the lawfulness of the RCR as given in the
Hindu Marriage Act. The contention under the steady gaze of the Court was that the section
9 of the Hindu Marriage Act disregarded Articles 14, 19 and 21 of the Constitution. The
Court accepted this contention. The Court held that the RCR cure was unlawful since it
exchanged the right of decision to enjoy sex from the lady to the State. This would
disregard Article 21 of the Constitution since it encroaches upon the individual self-rule of
an individual. Moreover, the Court acknowledged that ladies would be harmed by this
arrangement and takes note of the significance of sexual self-rule for a woman. It is
additionally here that the Court concurs that "no constructive demonstration of sex can be
constrained upon the reluctant people, since nothing can possibly be all the more debasing
to human respect and enormous to human soul than to subject a man by the long arm of
the law to a positive sex Act". Interestingly and it is exceptionally uncommon for the Court
to do as such – it takes note of that even inside the domain of marriage, the idea of
constrained sex can exist. Be that as it may, the Court held that the idea of RCR isn't pair
with the idea of the 'conjugal circle.

SENTENCING

Section 376 of IPC talks about the sentencing policy for rape. There should be same
sentencing policy for marital rape as well. In my opinion marriage does not give a defense
to commit rape. After all rape is monstrous act which is so inhuman that it should not be
neglected in any case rather it should be punished in such a way that it leave a deterrence
effect in the society. Section 376B deals with punishment of rape committed by husband
when the spouses are living separately because at that time consent is not assumed, as
justification given by the judiciary. The punishment also rests between 2-7 years maximum.
This clearly shows that the difference in gravity of crime is created by differing the
punishments under 376 and 376B. This is a violation of article 14 of the Indian constitution
which ensures equality for all.

CONCLUSION

The discussion of spousal assault is crucial in building up substantive fairness for married
women who are generally consigned out in the open and legal talks to the bounds of their
home. It is essential to perceive that, this is a noteworthy lacuna in criminal law at present
defeating the constitutional provisions which gives women right to live with autonomy,
dignity and equality.7 We have argued that the present day women are not be made
available to be treated as a property by their husbands. Judiciary need to support women
by making a law regarding the same so that they can stand against the mental and physical
torture they have been going through. Women not coming in front also because of societal
pressure or the fear of unacceptance or alienation from the society. The exception clause is
unconstitutional as given in section 375 of IPC because it fails to comply with the article 14
of the Indian constitution, right to equality. And further the focus is on finding the
alternatives rather than focus on criminalizing it. Also recognized that our culture not
accepting it is not a reason to not criminalize it. We have also argued that relationship
between husband and wife cannot be a defense in case of accused and the woman. At last
we suggested that sentencing policy for the offenders of the crime of marital rape should be
same as that for the offenders of rape under section 376 of IPC.

SUGGESTIONS

Indian legal system need to bring a strict law for marital rape. The exception clause under
section 375 of IPC should be deleted. And section 376B of IPC about punishment should be
repealed. The perception of the society will change when they will see that this it is been
recognized by such a high authority like judiciary and this will also give women the
strength and support to take a stand for themselves against such heinous and shameful acts
done by their close ones. Judiciary acts as a pillar for a society to stand still because people
have utmost trust on it as it the ultimate remedy giver for anything whatsoever wrong
happens. So it needs to recognize that it is high time now to protect our women’s dignity
and ensure them a life worth living.

BIBLIOGRAPHY

 The Indian Penal Code, 1860. Section 375.

 The Indian Penal Code, 1860, section 376B.
 Manupatra
 Stanford encyclopedia of philosophy, Feminist Perspectives on Rape
First published Wed May 13, 2009; substantive revision Wed Jun 21, 2017
 Wikipedia.

7
Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of marital rape in India: understanding its
constitutional, cultural and legal impact, ( 11,11,2018, 10:50pm),
http://docs.manupatra.in/newsline/articles/Upload/8787A55C-D93F-4589-8A68-A9A032AFAF0E.pdf