What is Marital Rape?

Marital rape can be broadly defined as, ‘Any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, the threat of force, or when the wife or husband is unable to consent.’

History of Marital Rape

The 17th century would be earmarked and etched in history as the then Chief Justice of England Lord Hale, made a notable remark on the controversial subject:-

“The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract.”

There weren’t any citations or cases offered by him to support his statement. For many years patriarchal societies consider that the conjugal rights of men should always be fulfilled by his wife to which she gave her irrevocable consent at the time of marriage.

Laws in India

Section 375 of the Indian Penal code (herein referred to as IPC) defines rape with the exception clause-“Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”

This archaic exception in the IPC is put forward as a concern by many scholars and women rights activists because of its far-reaching consequences on human dignity, right to life and personal liberty, equal protection of the law, Right to sexual privacy, and Right to good health.

India is one of the 36 countries that still does not have criminalized marital rape. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment of Independent Thought v. Union of India, (2013) 382 SCC (2017), the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. This in turn has led to an increase in other writs challenging the constitutionality of Exception 2 as a whole.

172^nd Law Commission

This commission gave a recommendation that clause (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offense just as any physical violence by a husband against the wife is treated as an offense. On the same reasoning, section 376 A was to be deleted.

Legal recourse women should receive

To avail the legal recourse for marital rape first we should understand what rape is. Rape is derived from the term ‘rapio’, which means ‘to seize’. Section 375 of the Indian Penal Code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.”  

Under Article 14 Equality before Law and Equal Protection of Laws  

In 1952 the Hon’ble Supreme Court laid down 2 requisites so that the equals within the society are not treated unequally and the un-equals in the society are not treated equally, which were:-

a. The classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and

 b. The differentia must have a rational relation to the object sought to be achieved by the legislation.

But here the important thing to assume is that is it a reasonable classification, so the Supreme court should not let the patriarchal mindset get in the way of making a reasonable classification.

Article 21 Right to Life and Personal Liberty

In marital rape, the personal liberty of the spouse (who is the victim) is sacrificed.

1. Right to Health: – Marital rape not only violates the physical boundaries of the spouse but also it has long-term mental ill effects which directly violates the health of the person.
2. Right to live with human dignity: – The right to human dignity is exploited in the cases of rape but when it is from someone we trust the victim feels shame on the same level.
3. Right to Privacy: – The right to privacy while engaging in sexual activities to which the victim didn’t consent can be violative.

Conclusion

Marital rape is one of the most heinous crimes because it violates the body of the victim and is done by someone we trust (spouse) and is also one of the most underreported crimes because of the traditional patriarchal mindset. But it is at least considered a crime in over 100 countries but the paradox here is that even after so many years of Independence and recommendations the by 172^nd Law Commission in 2000 any law on this is yet to be introduced in the parliament. This shows the callous attitude and the old mindset of the legislators to keep silent on such an important event which violates the temple that is the body. But as and when society progresses more and more people speak about this and hopefully we can free the spouse from the shackles of this black mark.