criminalization of marital rape in india

Introduction
Marriage represents the union of two people in a commitment of love and respect, and is
generally seen as a sacred institution. However, beyond the surface of these values, a dark
and extremely concerning problem—marital rape—remains at the heart of many Indian
houses. Although most of the globe has made progress in acknowledging and outlawing this
horrible deed, India continues to be a prominent exception. Marital rape is still not considered
taboo in the largest democracy in the world, where social conventions and cultural traditions
coexist with the contemporary legal system.
This study explores the delicate and complicated topic of marital rape in the Indian setting.
The sexual assault of a spouse by their partner when they are married has long been a
contentious issue in India. This is known as marital rape. It questions the limitations of the
law itself, as well as deeply rooted patriarchal structures and social values. The 19th-century
Indian Penal Code, which provides no special protection against marital rape, stands in stark
contrast to the rapidly changing international legal environment.
Objectives
To evaluate the physical and psychological consequences of marital rape on victims,
including its impact on their mental and emotional well-being, and to understand the coping
mechanisms they employ.
To provide arguments in support of making marital rape a crime, emphasising the defence of
individual autonomy and dignity, gender equality, and human rights.
To critically examine the existing legal framework in India concerning marital rape, and
assess its adequacy in addressing this form of sexual violence within marriage.
Research Methodology
The qualitative research approach used in this study mostly makes use of secondary data
analysis. This method is especially appropriate given the delicate and intricate subject matter
—the protection and rehabilitation of survivors of genocide—because it permits a thorough
analysis of the available data, academic publications, and firsthand accounts. Using known
information and documented experiences, this methodology made it possible to investigate
genocide survivors' protection and rehabilitation in great detail. It made sure that a plethora of
information and professional analysis served as a solid foundation for the research paper's
conclusions and recommendations.
Literature Review

What is Marital Rape?

The term "marital rape" describes non-consensual sexual activity or sexual violation that
occurs within a marriage or intimate relationship. It happens when one partner pushes,
coerces, or has intercourse with the other without the other partner's express and voluntary
agreement. Marital rape is an infringement on a person's autonomy, bodily integrity, and
human rights. It is a type of sexual abuse and domestic violence.
Countries That Have Criminalized Marital Rape:
1. United States: Marital rape was criminalized in all 50 states of the United States in 1993.
However, laws may vary from state to state, and sentences for convictions differ accordingly.
The criminalization marks a significant step in recognizing the importance of consent within
a marriage.
2. United Kingdom: The United Kingdom has also criminalized marital rape. Those found
guilty of marital rape could be sentenced to life imprisonment. This demonstrates the
seriousness with which the UK legal system treats this form of sexual violence.
3. South Africa: Marital rape was declared illegal in South Africa in 1993. This legal change
was a crucial step in acknowledging the autonomy and rights of individuals within a
marriage.
4. Canada: Canada has criminalized marital rape, making it punishable under the law. This
reflects the commitment to addressing domestic and gender-based violence.

Countries That Have Not Criminalized Marital Rape:

1. Ghana: Ghana has not expressly criminalized marital rape, which raises concerns about the
protection of women's rights and bodily autonomy within marriages.
2. India: India has faced significant debates and discussions surrounding the criminalization
of marital rape, but as of my last knowledge update in January 2022, it had not explicitly
criminalized marital rape. This has been a topic of ongoing debate, and legal reform efforts
have been advocating for change.
3. Indonesia: Indonesia has not expressly criminalized marital rape, which is a challenge to
the protection of women's rights and safety within marital relationships.
4. Jordan: Jordan has not explicitly criminalized marital rape, which raises questions about
the legal framework's effectiveness in addressing gender-based violence
Marital Rape hasn’t been recognised as a crime in several states because of the various
traditional and cultural boundaries rooted in patriarchy which has never been considered it as
a crime. India is one of those states which is reluctant to consider marital rape as an offense.
Even though Indian laws considers rape to be a grave crime according to section 375 of
Indian Penal Code, marital rape is not included in that definition.
Section 375 of Indian Penal Code defines what constitutes as rape wherein the law is gender
biased on the notion that it is the men who is always the perpetrators and women the victim
of such crimes and contains exceptions and circumstances as to when it is not constituted as
rape. The exceptions given in the section is evidence to the fact that the Indian Criminal
Justice System doesn’t recognise marital rape as rape.
‘Exception 1.A medical procedure or intervention shall not constitute rape.

Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape’
Even if that is the case there are provisions existing as a solace wherein the Indian Legal
System recognised marital rape as a form of domestic violence and abuse which could be
seen in the provisions of the Domestic Violence Act, 2005.

Impact of cultural and social perception on Marital Rape

The understanding and reaction to marital rape in India are greatly influenced by cultural and
societal beliefs. The frequency of this problem, the reporting of cases, and the capacity of
survivors to seek assistance and justice can all be significantly impacted by these attitudes.
The following are some significant ways that social and cultural views impact marital rape in
India:

1. Normalisation of Non-Consensual Sex: Traditionally, Indian cultural norms have placed a

strong emphasis on the husband's power in the home. This has occasionally resulted in the
normalisation of extramarital sex outside of consent. Many people—including survivors—
may be unable to identify certain behaviours as rape because of deeply rooted ideas about the
responsibilities and duties of marriage.
2. Stigma and Victim-Blaming: Divorce and separation are frequently stigmatised in Indian
society, which puts survivors off coming forward to disclose rape during marriage. Victims
could worry about the social fallout, such as rejection from friends and relatives.
Furthermore, there is a lot of victim-blaming, and survivors might be made to feel guilty for
the abuse they experience.

3. Lack of Knowledge: Information regarding consent, sexual rights, and domestic abuse in
marriages is lacking. Many people might not know their rights or might think they have
nowhere to turn if they are the victim of non-consensual sexual activity.
4. Traditional Gender Roles: In India, women's devotion to and obedience from their
husbands are highly valued in traditional gender roles. This relationship may support the
notion that a husband is entitled to have sex in the marriage, even without the consent of his
wife.
5. Fear of Family and Community Repercussions: Women who have survived marital rape
may worry that their families would be ashamed and degraded if they come forward and
expose their spouse's behaviour. Since maintaining one's family's reputation is regarded in
many Indian cultures as an essential duty, this anxiety may cause one to remain silent and do
nothing.
6. Lack of legislative Clarity: The notion that marital rape is not a crime may be strengthened
by the absence of explicit legislative measures in India making it illegal. This legal void
could give the impression that using the judicial system to pursue justice is not feasible.
7. Community Mediation and Pressure: Rather than taking legal action against an abusive
spouse, community or religious leaders may in certain situations advocate mediation and
reconciliation. This may deter survivors from pursuing official legal action.
8. Stereotypes of "Ideal" Wives: In India, the societal image of the "ideal" wife frequently
entails selflessness and blind obedience. When women come forward to disclose marital rape,
they risk judgement and hostility from society.
9. Lack of Empowerment: In India, gender inequality and socioeconomic divides can deprive
many women of their agency, making it harder for them to stand up for what they believe in
or ask for help. Their susceptibility may be exacerbated by this lack of authority.
10. Cultural and Religious Beliefs: Views of marriage roles and relationships can be
influenced by cultural and religious beliefs. These ideas occasionally have the potential to be
understood in ways that support or excuse extramarital sex that is not consenting.
It takes a multipronged approach to address the influence of cultural and social perspectives
on marital rape in India, including legal reform, educational initiatives, and a shift in deeply
embedded societal norms. It is imperative to acknowledge and confront these beliefs in order
to provide a more fair and secure atmosphere for people in marriages and other partnerships.
Legislation in India related to Marital Rape
Indian Penal Code
"Indian Penal Code," addresses Section 375 of the Indian Penal Code, which, in its exception
clause, expresses somewhat antiquated views by declaring that "[s]exual intercourse or sexual
acts by a man with his own wife, the wife not being under 15 years of age, is not rape." It also
notes that Section 376 stipulates the penalties for rape: the perpetrator faces either kind of
imprisonment for a minimum of seven years, with the possibility of serving a longer sentence
of up to ten years or life in prison, as well as a fine.
Justice Verma Committee Report
The Justice Verma Committee was established in 2012 in response to the Delhi gang rape
case. Its mandate was to suggest changes to the criminal code that would enable defendants
accused of sexual assault against women to face a speedier trial and more severe penalties.
The report suggested eliminating the exception for rape committed during marriage.
Matrimony is not an irreversible endorsement of sexual behaviour. Consequently, the victim-
accused relationship should not be taken into consideration when determining whether the
complaint gave permission for the sexual conduct.
The study also suggested that the term "rape" be defined to cover any non-consensual sexual
penetration, such as when an instrument or body part penetrates the mouth, urethra, anus, or
vagina. Additionally, the report suggested that all non-consensual sexual touching be
included in the definition of sexual assault.
A minimum sentence of 20 years and a maximum sentence of life imprisonment was
suggested by the report for rape. According to the research, life in prison should be the
penalty for gang rape.
According to the findings, if a police officer fails to file a First Information findings (FIR) or
files one too late, they should be held responsible. The research suggested that if the police
fail to safeguard a witness or victim, they should be held responsible. The government should
offer free legal assistance to victims of sexual assault, according to the report's
recommendation. The government should compensate victims of sexual assault, according to
the report's recommendation.
According to the report, the government ought to set up special tribunals to handle sexual
assault cases. In order to oversee the Committee's recommendations being carried out, the
study also suggested that the government create a National Commission on Sexual Violence.
Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Act, of 2013, was passed in response to the public outrage
following the Delhi gang rape case in 2012. However, the Act did not remove the exception
to marital rape in Section 375 of the Indian Penal Code. The Act only amended Section 375
to provide that penetration of the vagina, urethra, anus, or mouth of a woman with any object
or body part, without her consent, would be considered rape. The Act also introduced new
offences such as acid attack, stalking, and voyeurism, and increased the punishment for
various offences such as rape, gang rape, and sexual harassment
Protection of Women from Domestic Violence Act, 2005
As per the Protection of Women from Domestic Violence Act, of 2005, sexual abuse is
classified as any sexually explicit behaviour that injures, degrades, humiliates, or injures a
woman's dignity. The Act offers protection and remedies for women who are victims of
domestic violence and acknowledges that sexual abuse can happen in a married relationship.
Nonetheless, marital rape is not made a separate crime under the Act. The Act offers a shorter
prison sentence for marital rape than for non-marital rape and views it as a type of domestic
abuse. Therefore, the Protection of Women from Domestic Violence Act, 2005—a civil
remedy rather than a criminal action—is the sole means by which marital rape can be
penalised in India.
Need for Criminalisation of Marital Rape in India