MARITAL RAPE: A MOCKERY ON THE PROVISIONS OF THE PENAL CODE
Updated: Mar 14, 2021
According to the Hindu Mythology, marriage is the most sacred bond which involves not only the amalgamation of two individuals but it also seeks to create a bond between two families and is considered to be the very reason for the existence of a civilized society. However this institution of marriage has been considered as a blanket by the men of our country which covers within itself the heinous act of sexuality and brutality.
From the very beginning of our civilization women have not been treated as individuals and were scrutinized by the men as mere “sex objects” who were not supposed to have a voice of their own and were bound to follow the footsteps of her husband. One of the concepts arising right from this misogynist mind-set of the people is Martial Rape which has not been criminalized by the lawmakers of our country merely on the grounds that criminalizing marital rape would destroy the very institution of marriage and along with it the problem of misuse which would result in the ends of justice not being served, but they often tend to forget the fact that if there is no happiness or sense of belongingness in a marriage then does it not make the sacred institution of marriage fall apart?
Rape literally means a forcible seizure. It means the ravishment of women against her will or without her consent or with her consent obtained by force, fear or fraud or the carnal knowledge of a women by force against her will. Where on one hand rape has been considered to be a heinous offence, on the other marital rape is considered to be an “exception” to rape only to preserve the sanctity of Indian culture despite of the facts which have been laid down in front of the eyes of the legislature time and again.
Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually. The immunity to marital rape was given in 1736 by Sir Mathew Hale who stated that: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial concept and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.” Despite being the heinous crime it is, marital rape has not been criminalized yet owing to the lacunae in the Indian Penal Code and hence is reported by one in a million women of our country, depicted clearly by National Family Health Survey which states that 83% of the married women between the ages of 15 and 49 who have suffered sexual abuse cite their current husband as the perpetrator.
The irony of the provisions of the code is that under Section 375 it states that a man is said to commit rape if he commits the act of sexual intercourse with a women without her consent or her will but when the same man commits the very same act of sexual intercourse with her wife he is not liable for any punishment and is allowed to do so by the virtue of being “lawfully married”. This inadequacy to even consider the fact that even married women can be raped is erroneous and shows the existence of a male dominant society where a husband internalizes and makes it his inherent right by the virtue of being a man to enter into a sexual relationship after the solemnization of his marriage whether with or without the wilful consent of the wife. It is a question on the spirit of our democracy that the legislature has turned its eyes blind to the monstrous act that runs through the very roots of our country and has time and again stated that husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage and because it is so, thousands of men get a license to unleash the sexual predator every day that exists within them in the name of the sacred institution called marriage which acts as a chain not allowing women to be set free from this inhumane practice that is not only humiliating and derogatory but also violates their fundamental right of “Right to life”, subjects them to the brutality, and refrains them from their right to say “no”.
Marital rape has always been undermined as an offence and it has been said since time immemorial that marital rape is less traumatic and barbarous but the fact that people tend to forget is that it not only abuses women physically but also creates a psychological imbalance just. It is the need of the hour to not only realize what a heinous and gregarious crime marital rape is but also to make laws so strict as to protect the integrity and modesty of a woman which is robbed each day by a person she trusts and loves. It is time to treat all women equally whether married or not, to make them realize that though she is married but she still is India’s daughter and thus needs to be protected and treated in the same manner as that of her husband. India needs to realize that marriage does not give the society a certificate to waive off the right of a woman to be respected not only by the society but also by her husband who is bound to protect her integrity and not to exploit her and disrespect her choice to say no.
Lastly, it is time to bring into picture the words rightly pointed out by Dr. Chuba Okadigbo that “if you are emotionally attached to your caste, religion, political leanings to the point that truth and justice become secondary considerations, your education is useless, your exposure is useless. If you cannot reason beyond petty sentiments, you are a liability of mankind.”
 Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 4684.  Nimeshbhai Bharatbhai Desai v. State of Gujrat, 2018 SCC OnLine Guj 732,  65.  History of the Pleas of the Crown: 1 Hale P C (1736) 629.  https://indianexpress.com/article/gender/national-family-health-survey-underscores-need-for-serious-discussion-on-marital-rape/  Section 375, The Indian Penal Code, 1860.  42nd Law Commission Report, 1971.
Author -Richa Bhandari
Student at School of Law, University of Petroleum and Energy Studies, Dehradun.