Section 375 of the Indian Penal Code criminalizes the Rape in India. It says that;
“A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation — Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception — Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. [Read down by Supreme Court in Independent Thought v. Union of India]¹
Despite there being a proper law on Rape which is being made tougher day by day because of the increase in the rate of rapes in India, it very ironical and absurd to know that marriage still exists as an absolute defence against this cruel and inhuman offence. It means ‘Marital Rape’ concept is still alien to the Union of India. Though the Supreme Court on 11th of October, 2017, held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape. The court held that the exception clause to rape, carved out in the IPC, created an unnecessary and artificial distinction between a married girl child and an unmarried girl child. The clause took away the bodily integrity and reproductive choice of a girl. It has even turned a blind eye to trafficking of the minor girl children in the guise of marriage. The court, however, refrained from dealing with the issue of marital rape of a woman aged above 18.²
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. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.
This means that according to the Indian Law, if the rapist is the husband of the woman, it does not amount to rape, even if the consent of the woman is missing. The Central Government of India and the Hon’ble Supreme Court of India have been of the view that marriage contract with a man is in itself the consent for sexual relations with him once and for all.
Moreover, the Central Government has termed the criminalization of ‘Marital Rape’ as destabilizer to the institution of marriage and that Section 498A (harassment caused to a married woman) is often misused, and so can criminalizing marital rape.³
One in five married men in India have had non-consensual intercourse with their wives and such cases amount to between 9% and 15% of the total rapes in the country, stated a private member’s bill tabled in the Rajya Sabha in 2015 by a Congress MP. The recent landmark rulings by Supreme Court on Privacy Judgement and Triple Talaq are incomplete without repealing the draconian Section 377 and Criminalizing Marital Rape.
Rape laws in India continue with the patriarchal mindset of considering women to be the property of men, post marriage with no autonomy or agency over their bodies. Marital rape has been impeached in approximately 106 countries and is documented as a desecration of human rights. Among the 106 countries, 32 consider it as a special criminal offence, and the remaining 74 include it in the general rape provisions. Even though many countries around the world have taken such strong and progressive steps, India is one of the 36 countries where it is still not a criminal offence and is untouched by the lawmakers of our country.
In the present day, studies indicate that between 10% and 14% of married women are raped by their husbands; the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus; all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.
The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive in mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?
Here are some effects a rape victim may have to live with –
1. Physical injuries to vaginal and anal areas, lacerations, bruising.
2. Anxiety, shock, depression and suicidal thoughts.
3. Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and infertility.
4. Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and negative self-image.
Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require campaign of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps to protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.
In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.
Similar to murder, rape is a reprehensible act that leaves a body defiled. However, rape victims are not like murder victims; they live and relive the event. Worse yet, they can never leave the scene of the crime. The mental agony of a rape victim in marriage or outside marriage cannot be described in legal terminologies.
We will be deceiving ourselves if we believe that this issue can be solved merely by removing the marital rape exception. A much bigger question is how to change the patriarchal social norms? In the NFHS survey, for instance, 54 percent women said, “It is fair to say that violence by a husband is justified. The law alone cannot resolve the plight of women unless backed by a change in patriarchal mindsets and economic empowerment of women.”
¹ Indian Penal Code; Section 375
² Independent Thought V. Union of India [ W.P (C) No. 382 of 2013]
Author is pursuing B.A LLB (Hon’s) from University of Kashmir and can be mailed at email@example.com.
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