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MARITAL RAPE: YES, MY HUSBAND IS A RAPIST!

“It is not the bruises on the body that hurt. It is the wounds of the heart and the scars on the mind.” – Aisha Mirza


Rape a sexual intercourse, committed by a perpetrator against a victim without their consent. The ‘Rape’ is derived from a generic term ‘Raptus’ refers to the violent theft, applied both to persons and property. Rape is gravest sin. Marriage is showcased as a legal contract between a man and a woman, in which sexual intercourse is legal but only when the wife gives consent. The unwanted sexual intercourse or penetration by force, threat or force is marital rape[1]. In this 21st century we are trying to make it decriminalised but still it acts as an exception to the offence of rape.


What is the history of marital rape?

Historically, it was truly believed even by great thinkers that a man could not be prosecuted for raping his own wife as she is his possession.

During ancient times and even in today’s scenario, we know that marriages in various communities are arranged for the purpose of producing offspring[2]. Not only in India but this can also be seen in the British law that the contract of marriage includes the husband’s “right to sex”, the wife having given consent for all time by entering the contract. So, tons of cases are there related to marital rape all over.


Well-known Cases Laws:

Amongst the most horrific cases of marital rape was the case of Phulmoni Dasi (Queen Empress vs Hari Mohan Maiti) in 1881. In this case, an eleven-year-old girl (bride), died because of excessive bleeding as her husband, Hari Mohan, tried to have sexual intercourse with his wife who was a minor. But the man was punished for marital rape under section 304-325, 338 and 498A[3] of Indian Penal Code.


Even in case of Nimesh Bhai Bharatbhai Desai vs State of Gujarat, High Court of Gujarat stated that husbands cannot forcibly rape their wives in the name of marriage. They viewed that accused must be punished for raping of his wife.


Marital Rape and India:

Marital rape is forcing one's spouse to engage in sexual acts without their consent. It is recognized as a crime all over the world in over 150 countries. but marital rape isn’t recognized as a crime in India. Section 375 of IPC deals with rape. But it has 2 exceptions, that a husband can have sexual activity without wife consent if she is under 18 years and another is, if wife is 18 years or above then having sex without wife’s consent is not a rape[4]. Exceptions of section 375 of IPC is clearly a violation of Article 14 of the Indian Constitution[5].

In India, marital rape exists de facto[6] but not de jure[7]. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognising it as an offence.


Types of Marital Rape:

There are three kinds of marital rape that are recognised[8]-

  1. Battering rape- in this type of rape, women experience both physical and sexual violence in the relationship and they experience this in various ways. The majority of marital rape victims fall under this category.

  2. Force-only rape- in this type of rape, battering is not the characteristic of the spousal relationship. Husband uses the amount of force necessary to coerce their wife.

  3. Obsessive rape- this involve torture or sexual acts which are often physically violent.


Violation of certain rights in Indian Constitution:

Article 14(equal protection clause) of the Indian Constitution guarantees every citizen equality before the law.

Article 21 (right to life and personal liberty) of the Indian constitution guarantees every individual the right to life and personal liberty. It also includes:

  • The Supreme Court of India has labelled the offences of rape as an act of “deathless shame and the gravest crime against human dignity”[9] [10].

  • Right to sexual privacy[11].

  • Right to good health

  • Right to bodily integrity

  • Right to safe living environment

Reason behind silence of marital rape victims:

The main reason behind the silence of victim of marital rape is the unsupportive society and sometimes family also. In most of the rural areas, girls do not receive education, they get tied up in the practice of marriage in early childhood days due to which they don’t have any financial support and are not financially independent, by this they end up in unsatisfied marriage due to which they face harsh sexual treatment on daily basis. Now in urban areas, people live in high profile families and status because of which women can live in unsatisfied marriage but won’t go for divorce because of the fear of losing their reputation in the society. How can we expect from such women who are marital rape victim to raise their voice, when they fear of having divorce so that they are socially accepted.


What are the causes of marital rape?

  • Domination- Men feel themselves to be in charge and they have a history of attempting to dominate women. They believe they can have sexual intercourse with their wife whenever they want.

  • Illiteracy- Illiteracy is the primary cause, women who are the victims of unjust acts, are unaware of the law, including whether the behaviour is prohibited by statute and what remedies are associated for her protection.

  • Society- in a society, if a female is raped, not able to give birth, don’t follow family rules, work against family, she would be rejected by society.

  • Sexual dissonance between couples- a time when a woman refuses sexual intercourse for a variety of reasons, the husband takes it on his ego and uses his power on the woman so he forcefully causes sexual intercourse with her[12].

Suggestions for decreasing marital rape:

  • Marital rape shall be created as a ground for seeking divorce.

  • The punishment given to rapist should also be applied on marital rape accused as stated for rape under section 376 of IPC.

  • Marital rapes need to be criminalised in India and this can be done by applying an individualistic approach for violence against women in India.

Conclusion:

India is a developing nation whether in technology or in fashion or in food habits but we feel disheartened to say that our nation is still every slow in adapting laws for women’s safety due to which they face sexual abuse and later they themselves are called as an accused by the society.

Indian government for protecting women has amended various laws from past many years but enforcing laws against the horrible crimes against the women by their own husband’s which we called as a marital rape seemed very slow. Marriage is a practice in which both the partners are equal in position but still from past centuries we observe women are placed under men’s will. They are always guided to satisfy everyone around them and obey the wishes and demands of male members in the family.

Rape within a marriage or without marriage is still a disgrace and cannot be tolerated. But being as a part of marriage and facing sexual activity without a valid consent is more difficult as she seems to be legally bound and dependent on him. The consent for marriage and consent for sexual intercourse are two different spheres and should be seen separately only.


Thus, considering marital rape as an offence is not enough, society should also consider marital rape as a heinous offence and put a step forward to stop it in their own families and in outside society. So, by taking this initiative we can change and grow our society and make it a healthy and safe environment to live for women within marriage or without marriage.


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1) Suchita Srivastava v Chandigarh Administration

2) Bodhisattwa Gautam v Shubhra Chraborthy

3) section 498A states cruelty to women

4) Independent Thought v Union of India, in 2017

5) Indian Constitution art. 14, equality before law

6) exercising powers as if legally constituted

7) a state of affairs that is in reference with law

9) Bodhisattava Gautam v Subhra Chakarborty (AIR 1996 SC 922)

10) Francis Coralie v Union Territory of Delhi (AIR 1981 SC 802

11) Joseph Shine v Union of India, 2018

12) aggression and violent behaviour, 12(3), 329-347



This article is written by Aishwarya Mahajan of Maharaja Agresan Institute of Management Studies.

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