Rape; The most common crime prevailing in the world. While this is one of the most heinous crimes to ever exist, it is also the most common word seen in our daily news providers. Ironic isn’t it? To use the words ‘common’ and ‘heinous’ for the same offence.
Let’s play a game, shall we? Pick out any age group of your choice... Voila! You picked the age of a rape victim.
When discussing the issue of rape, we instinctively picture a female going through torment and abuse. In spite of the ratio of female rape victims being more than that of males, men today also fall prey to this crime. Sadly, it does not stop there! Animals go unspared to the grasps of this atrocity too.
In a literal sense, rape is the act of forceful sexual intercourse carried out on an individual by another individual without their consent or if there is consent, it is obtained by force as explained in Section 375 of the Indian Penal Code, 1860.
Section 375 of the Indian Penal Code, 1860 states,
A man is said to commit rape when he has sexual intercourse with a woman under any of the following situations:
• Against her will.
• Without her consent.
• With her consent but the consent was obtained by putting her or any person close to her in fear of death or of hurt.
• With her consent but the man knows that he is not her husband and the consent was given because the woman believes that he is the man with whom she is or believes herself to be lawfully married.
• With her consent but at the time of giving such consent the woman was unable to understand the nature and consequences of her consent.
• With or without her consent, when the woman is below the age of 16 years
However, there are certain exceptions to Section 375 which are as follows-
A medical procedure or intervention should not constitute rape
The act of sexual intercourse will not be considered rape when it is done by a man with his wife and the wife is not under fifteen years of age.
The Exception (2) of Section 375 of the Indian Penal Code is termed as Marital Rape.
What is Marital Rape?
When a husband forces himself on his wife without her consent, it is considered as marital rape. While in some countries this misdemeanour is termed as rape, in others it is a mere ‘obligation of the wife’. According to a legal dictionary, marriage is the state of being united to a person in a legal, consensual and contractual relationship recognized and sanctioned by and dissolvable only by law.
As given in the exception (2) of Section 375, if a husband has sexual intercourse with his wife without her consent, it constitutes as Marital Rape.
Further, Marital Rape can be put into different categories as well namely,
Non-physical sexual coercion:
There is no physical force used. Rather it invokes the belief that it is a woman's wifely duty to satisfy her husband even if she is unwilling to do so.
Threatened or forced Battering:
This is where verbal or physical abuse comes into play. The wife is subjected to violence if she does not give consent to intercourse.
Here, violence and threats are mainly used to coerce the wife to have intercourse with her husband.
This is a sadistic form of rape in which violence is used as a means of sexual arousal. The wife is subjected to violence and is then coerced.
Criminal status of Marital Rape
Marriage in India is believed to be a civil contract between a husband and a wife. It is understood that post-marriage the wife becomes the property of her husband. She is not treated as an independent member and is also not given equal rights after and during a marriage either. Hence, consent is presumed to straightforwardly exist in a marriage. As consent plays a salient role in the misdeed that is rape, marital rape is not regarded as a crime and is therefore not a punishable offence either.
It was only after the 1970s that women were recognized as equal to men. Gradually, women were given rights and opportunities and had their own identity even after the marriage. Additionally, countries began recognizing marital rape as an offence, however, the penalizing for this crime was less severe as compared to those of actual rape. This is because marriage in many countries is a civil contract in which criminal law should not obstruct.
Today, many countries have acknowledged marital rape as a criminal offence with Poland being the first country to make Marital Rape a legal offence in 1932 followed by Australia who was the first common law country to constitute it as an offence in 1976. Unfortunately, India remains one of the 36 countries where marital rape is still not considered wrongdoing.
Status of Marital Rape in India
In India, Marital rape is not deemed as an offence, instead, it is seen as something that happens behind closed doors. Here, marriage is considered sacred, with people being more concerned about their image in the outside world rather than acknowledging real and true problems. Societies deep-rooted mentality of women being expected to obey their husbands results in them being victims to crimes such as Marital rape. Furthermore, women who seek remedies for these acts are denied state protection under Section 375 of the Indian Penal Code as well.
As mentioned earlier, consent is presumed to be existent in marriages. This means, if a man forces himself on his wife, it will not be considered a crime, but rather gives him a dominant position. Hence, the Section encourages a man to commit a crime for which he will have legal protection.
There are two ways in which Marital Rape can be criminalized-
When there is forced sexual intercourse when a man and a woman are living separately on account of judicial separation ( Section 376-A) and;
When the wife is below the age of fifteen.
Section 376-A of the Indian Penal Code states, Whoever has sexual intercourse with his wife, who is living separately from him under a decree of separation or any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Thus, Section 375 presumes that the husband and wife are living together after marriage and hence no consent is required.
Combining all these points, living together after marriage is an automatic consent to be the prey of such a crime. However, the wife is in a green zone if she is below fifteen or living separately because of judicial separation. The Act which should also be included in one of the reasons for a wife to be separated from her husband only becomes a crime after separation!
Violation of Article 14
According to Article 14 of the Indian Constitution,
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
By this, the Constitution of India states to provide equality to all citizens of the country and does not discriminate on the basis of gender, but the exception to Section 375 of the Indian Penal Code says otherwise. When a wife is not given protection from the state in cases of rape, Article 14 of the Constitution is violated as the wife is not given equal protection of the law.
Violation of Article 21
Article 21 of the Indian Constitution states,
No person shall be deprived of his life and personal liberty except according to the procedure established by law.
It also includes that a person has a right to live with human dignity
The term used in the Constitution is “live with human dignity”. But how can a wife who is raped by her husband live a life of dignity as provided by this Article? It can be observed that the Exception is yet again the violation of Right to Life. It violates Article 21 of the Indian Constitution.
Arguments against criminalizing Marital Rape
There are numerous arguments given as to why Marital Rape cannot be a criminal offence.
The burden on already existing criminal offences:
It is tough to prove consent in cases of marriage and, therefore, it will be an addition to the already existing criminal offences.
As it is difficult to prove consent, a wife can falsely accuse the husband of the offence of rape in order to take revenge on the husband.
According to Indian culture, the wife must fulfil the needs of her husband and not doing so would destroy marriages. Moreover, criminalizing the offence is more inclined towards western culture.
It is already assumed that when a woman gets married to a man, she consents to indulge in sexual intercourse.
Consequences and Impacts of Marital Rape
Every act has its consequences and it comes as no surprise that when a woman is subjected to a crime, there will be consequences that she has to pay for.
In addition to everything, a crime such as that of marital rape can have a series of physical and psychological impacts on a woman. Physical impacts include, for example, injuries to private parts, soreness, vomiting, nausea, fatigue, possible transfer of STDs, miscarriages, stillbirths and the like. Additionally, psychological effects include, for example, depression, anxiety, fear, post-traumatic stress, eating disorders, sexual dysfunction etc.
Reforms and Conclusion
All in all, marital rape is a serious offence and should be treated equally as that of rape. Consent should play a major role in this crime and should not be assumed in marriages and wives should be given legal protection if she is a victim of rape by her husband. The exceptions in the above-mentioned sections of the Constitution are derogatory towards the dignity of women and therefore should be pronounced unconstitutional. Marital Rape should be considered a valid ground for divorce and the punishment given for this offence should be equal to the punishment given in the case of any other form of rape.
India is a country with a vast population and as a result, crime rates against women are exceedingly high. Data suggests that one in every three women is or has been subjected to marital rape and are getting no legal protection. A country which recognizes rape as a serious criminal offence fails to do so for an offence happening behind closed doors covered by the sanctity of marriage. It gives an inclination to a patriarchal society instead of maintaining equality between both genders. It is high time that rape is given a status of legal offence in order to work towards maintaining an equal status of women in the country.
Lastly, there are questions that still remain unanswered. The exception talks about the man forcing himself on his wife. What if the wife forces herself on her husband? If the same happens in same-sex marriages, is it still considered as Marital Rape? If criminalized in India, will there be no case of false accusations? There are many such questions left unanswered, but the need of the hour is to criminalize this legal crime.