Updated: Mar 14, 2021
We are now in the Era of 2020 and India is one of the 36th country where it is legal for a man to rape a woman if they are in matrimonial society, why is that so? Why does a married woman have to live with her husband who has raped her several times? That is because India has not recognized the Crime of Marital Rape….
Let’s have a look in India where under the Indian Penal Code 1860, Rape is being defined under Section 375 which says it is a Criminal Offense. It is being defined as if a man has a sexual intercourse with a woman against or without her consent, or if she is a minor (The legal age of Valid Consent is 18 Years in India). However, there is an Exception 2 in Section 375 which exempts unwilling sexual intercourse with a wife over fifteen years of age from the definition of rape it directly means that is very much legal for a man to commit rape to his wife- aged 15 and above.
In many countries like – United States, Austria, etc. Rape is a Rape and it is a heinous crime but why India has not recognized it has a crime, the answer is India is a Patriarchal Society across various periods and many religions the women are being suppressed by their voices and where the marriage is looked upon a contract and a sacrament in various religions it is meant that the man has took the valid consent from his wife to have sexual intercourse whenever and wherever he wants, this is one of the obstacle in Criminalizing Marital Rape as a Crime.
If we look at Indian Legal System there have been various Writ Petitions, cases filed by the individuals, Civil Society Organizations in Supreme Courts and several other High Courts by challenging the Exemption of Section 375 though the Government has overlooked it.
1. To understand the Physical and Mental Impacts of Marital Rape.
2. To understand Kinds of Marital Rape
3. To understand the Legal Position of Marital rape in India.
4. To find out Lacunas in India Law.
5. To provide Recommendations to improve the status and Criminalize Marital Rape in India.
Physical and Mental impacts of Marital Rape: -
Notwithstanding the authentic legend that assault by one's accomplice is a generally inconsequential occasion causing little injury, research shows that marital rape frequently has serious and durable ramifications for ladies. The physical impacts of marital rape may incorporate wounds to private organs, gashes, irritation, wounding, torn muscles, weakness and retching. Ladies who have been battered and assaulted by their spouses may endure other physical outcomes including broken bones, bruised eyes, wicked noses, and blade wounds that happen during the sexual viciousness. Explicit gynecological outcomes of marital rape incorporate unnatural birth cycles, stillbirths, bladder contaminations, fruitlessness and the likely compression of explicitly transmitted illnesses including HIV. Some marital rape survivors report flashbacks, sexual brokenness, and passionate agony for a considerable length of time after the viciousness.
Kinds of Marital Rape: -
The accompanying three sorts of marital rape are distinguished by lawful researchers as by and large common in the general public :
•Battering assault: In "battering assaults", ladies experience both physical and sexual brutality in the relationship and they experience this viciousness in different manners. Some are battered during the sexual savagery, or the assault may follow a truly fierce scene where the spouse needs to make up and pressures his better half to have intercourse without wanting to. Most of marital rape casualties fall under this class.
•Force-just assault: In what is classified "power just" assault, spouses utilize just the measure of power important to constrain their wives; battering may not be normal for these connections. The attacks are ordinarily after the lady has declined sex.
•Obsessive assault: Other ladies experience what has been named "vicious" or "over the top" assault; these attacks include torment or potentially "unreasonable" sexual acts and are frequently genuinely fierce.
Lawful Position in India:-
In India Marital Rape exists accepted however not by law. While in different nations either the assembly has condemned Marital Rape or the legal executive has assumed a functioning job in remembering it as an offense, in India notwithstanding, the legal executive is by all accounts working experiencing some miscommunication.
In Bodhisattwa Gautam v. Subhra Chakraborty the Supreme Court said that "assault is a wrongdoing against essential human rights and an infringement of the victim's" generally loved of principal rights, to be specific, the privilege to life cherished in Article 21 of the Constitution. However it refutes this very declaration by not perceiving Marital Rape. In spite of the fact that there have been a few advances in Indian enactment corresponding to aggressive behavior at home, this has for the most part been kept to physical instead of sexual maltreatment. Ladies who experience and wish to challenge sexual viciousness from their spouses are as of now denied State assurance as the Indian law in Section 375 of the Indian Penal Code, 1860 has a general Marital Rape exclusion.
This built up the idea that once wedded, a ladies doesn't reserve the option to reject sex with her better half. This permits spouses privileges of sexual access over their wives in direct negation of the standards of human rights and furnishes husbands with a "permit to assault" their wives.
Just two gatherings of wedded ladies are secured by the assault enactment — those being under 15 years old and the individuals who are isolated from their spouses . While the assault of a young lady underneath 12 years old might be rebuffed with thorough detainment for a time of 10 years or more, the assault of a young lady under 15 years old conveys a lesser sentence if the attacker is hitched to the person in question.
Some advancement towards condemning abusive behaviour at home against the spouse occurred in 1983 when Section 376-A was included the Indian Penal Code, 1860, which condemned the assault of a judicially isolated wife. It was a correction dependent on the proposals of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India. The Committee dismissed the conflict that marriage is a permit to assault. In this way, a spouse would now be able to be prosecuted and detained as long as 2 years, assuming right off the bat, there is a sex with his significant other, also, without her assent and thirdly, she is living independently from him, regardless of whether under declaration or custom or any use. Notwithstanding, this is just a piecemeal enactment and considerably more should be finished by Parliament as respects the issue of Marital Rape. At the point when the Law Commission in its 42nd Report upheld the incorporation of sex by a man with his minor spouse as an offense it was viewed as a beam of expectation. The Joint Committee that checked on the proposition excused the suggestion. The Committee contended that a spouse couldn't be seen as blameworthy of assaulting his significant other whatever be her age. At the point when a man weds a lady, sex is likewise a piece of the bundle.
Numerous ladies' associations and the National Commission for Women have been requesting the erasure of the special case provision in Section 375 of the Indian Penal Code which expresses that "sex by a man with his own better half, the spouse not being under fifteen years old, isn't assault". In any case, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there ought to be more extensive discussion on this issue. The command of the Task Force was to audit all current enactment and plans relating to ladies. Of the four suggestions made by the Task Force opposite assault under the Indian Penal Code, the most critical relates to the meaning of assault. It took the position that the meaning of assault should be expanded to incorporate all types of sexual maltreatment.
According to the suggestion, the Law Commission's proposed meaning of "rape" could be received instead of the current meaning of assault in Section 375 IPC as "it is wide, extensive and adequate". In any case, similar to the Law Commission, the Task Force additionally avoided suggesting the incorporation of Marital Rape in the new definition. Starting at now, the law in India is entirely lacking in giving supporting instruments to ladies to practice real respectability and sexual self-governance.
Lacunae in Indian law:-
The entire lawful framework identifying with assault is wrecked, loaded with conundrums. The major legitimate lacunae that come in the method of engaging ladies against Marital Rape are:
•The legal understanding has extended the extent of Article 21 of the Constitution of India significantly and "option to live with human respect" is inside the ambit of this article. Marital Rape plainly abuses the option to live with pride of a lady and with that impact, it is presented, that the special case gave under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
•Article 14 of the Constitution ensures the principal right that "the State will not deny to any individual correspondence under the watchful eye of the law or the equivalent assurance of the laws inside the region of India". Article 14 thusly shields an individual from State segregation. Yet, the special case under Section 375 of the Indian Penal Code, 1860 segregates with a spouse with regards to insurance from assault. Consequently, it is presented, that with this impact, special case gave under Section 375 of the Indian Penal Code, 1860 is anything but a sensible grouping, and along these lines, disregards the assurance ensured under Article 14 of the Constitution.
•Though security of the nobility of ladies is a principal obligation under the Constitution, giving occasion to feel qualms about an obligation each resident "to revoke rehearses slanderous to the poise of a lady"; it appears that abusive behaviour at home and Marital Rape don't go under the meaning of pride.
•The “United Nations Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW), of which India is a signatory, has seen that this kind of victimization ladies disregards the standards of correspondence of rights and regard for human pride. Further, the Commission on Human Rights, at its fifty-first meeting, in its Resolution No. 1995/85 of 8-3-1995 entitled "The end of brutality against ladies" suggested that Marital Rape ought to be condemned.
•A spouse can't be arraigned for assaulting his better half since agree to marriage surmises agree to sex. This infers engaging in sexual relations whenever, anyplace and of any kind is a suggested term of the agreement of marriage, and the spouse couldn't break that term of the agreement.
•The law keeps a young lady beneath 18 years from wedding, however then again, it sanctions non-consensual sex with a spouse who is only 15 years old.
•The Indian Penal Code, 1860 states that it is assault if the young lady isn't the spouse of the man in question and is beneath 16, regardless of whether she assents. However, in the event that she is a spouse, not underneath 15 and doesn't assent, it isn't assault.
•Another conundrum is that as indicated by the Indian Penal Code, 1860, it is assault if there is a non-consensual intercourse with a spouse who is matured somewhere in the range of 12 and 15 years. In any case, the discipline may either be a fine or a detainment for a greatest term of 2 years or both, which is very less in contrast with the discipline given to assault outside the marriage.
•Though the supporters of ladies' privileges made sure about a statement in 1983 under which it is unlawful for a man to have sex with his isolated spouse pending separation, the courts are hesitant to sentence husbands disregarding the law.
Considering the above conversation following proposals are made:
· Marital assault ought to be perceived by Parliament as an offense under the Indian Penal Code.
· The discipline for marital rape ought to be equivalent to the one endorsed for under Section 375 of the Indian Penal Code.
· It ought not be a protection to the charge that the spouse didn't retaliate and opposed mightily or shouted and yelled.
· The spouse ought to have an alternative of getting an announcement of separation if the charge of marital rape is demonstrated against her better half. Despite the fact that an instance of marital rape may fall under "savagery" or "assault" as a ground of separation, it is prudent to have the lawful position explained.
· Demand for separation might be a possibility for the spouse, however in the event that the wife wouldn't like to turn to separation and needs to proceed with the marriage then the marriage ought to be permitted to proceed.
· Corresponding changes in the marital laws ought to be made.
It is conceded that changing the law on sexual offences is a formidable and sensitive task, and more so, in a country like India, where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law. Further, though, there is need for substantial changes in the law on sexual offences such as making them gender-neutral and eliminating the inequalities, a radical overhauling of the structure of sexual offences is not advisable. The immediate need is criminalization of marital rape under the Indian Penal Code. But, mere declaration of a conduct as an offence is not enough. Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
References  Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.  Thornhill, R. & Palmer, C.T., A Natural History of Rape — Biological Bases of Sexual Coercion (1st Edn., MIT Press Cambridge Mass., 2000)  Thornhill, R. & Thornhill, N., The Evolution of Psychological Pain, in Sociology and Social Science, Edn., Bell, R. & Bell, N. (Texas Tech University Press, 1989).  Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000)  (1996) 1 SCC 490  Tandon, N. & Oberoi, N., Marital Rape — A Question of Redefinition, Lawyer’s Collective, March 2000, p. 24  Exception to Section 375 of the Indian Penal Code, 1860  Law Commission of India, 42nd Report, 1977, Indian Penal Code, para 16.115, p. 277
Author - Aditi Shreenivas Prabhune
Student at Student at Symbiosis Law School, Pune.