"Congratulations, you married her and here is your "FREE PASS" to rape her? Happy???"

Marital rape is the act of unwanted sexual intercourse by a man with his wife obtained by force, threat of force, or physical violence. When sexual intercourse is done between two bodies without consent or approval of each other, it is termed as “Rape” and when it is done by one’s spouse without the approval of other, it is termed as “Marital Rape”. It is just another form of domestic violence and sexual abuse. Any time a husband forces himself on his partner to engage in sexual acts, it is sexual assault and if that leads to intercourse, then it is rape.

In this article, we at Kailasha Foundation will present the complete descriptive analysis of marital rape, consequences, impacts, related law and need to reconsider these laws.

In India, Marital rape is very common. Here, we are putting some statistics before you.

It is believed that women in India are 40% more likely to experience rape from their husband than by a stranger. It is also estimated that 10% of women in India experience sexual violence. As of 2013, an estimated 27,515,391 women aged 15 to 49 years experienced sexual violence in India. There has been a steady increase in rape cases in India from 2001 to 2012. The increase in rape cases for women aged fourteen to fifty has increased 54% in that time.

It is believed that rape reports are low due to marital rape being legal in India. The most important part is as per estimation, only 1% of rapes are actually reported in our country. Now, just imagine how many cases were actually happening every day in our country. Approximations have also quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide by emotional abuse by her husband.

As per UN Population Fund, More than 2/3rds of married women in India, aged 15-49 have been beaten, raped or forced to provide sex. The most contradictory part is 56% of Indians women believed occasional wife-beating to be justified.

As per statistics, 47% of girls are married before they are 18, which means they are less likely to finish an education and are at a higher risk of abuse and premature pregnancy.

94% of rapes in India are committed by someone the victim knows.

In Indian society, Women treat their husband as the god. That is just a reflection of our rich culture and traditions but Husbands should not treat their wives as their pet.

A few years back, there was a case in which a husband did forcefully sex with her wife Deepti even when she was admitted to the hospital. The woman has spent three years since fighting for justice, but she still doubts that her husband will ever be punished in a country that does not consider marital rape a crime. Is there no justice for victims like Deepti? Just because he married her, did it give him a right over my body?

Marital rape in India is not defined in the Indian Penal Code and is largely not viewed as rape by Indians due to the sacred nature of marriage in Indian culture. It has become a prominent issue, affected by many legal and cultural factors. As of now, statistics show that incidents of rape in India are steadily increasing. Nonetheless, reports of rape remain low. Currently, in India, marital rape is not criminalised under the Indian Penal Code, 1860 (hereinafter referred to as the Code). Section 375 of the Code specifically excludes acts of sexual violence in a marriage outside the purview of rape. However, under Section 376 B of the Code, a man is punished for forced sexual intercourse without the consent of the judicially separated wife. Further, as also seen above, marital rape cannot form a direct ground for divorce under different personal laws. Art. 14 of the Indian Constitution provides for equality of all persons before the law and prohibits any kind of state discrimination. However, the Exception in Sec. 375 of the Code discriminates against married women and does not qualify as a reasonable classification. It is thus, violation of the protection granted by Art.14. Further, Art. 21 of the Indian Constitution provides for the right to life and such life includes the right to live with dignity. Marital rape infringes upon the right of a woman to live with dignity. Thus, the Exception to Sec. 375 of the Code is in clear violation of Art. 21 of the Constitution. The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

‘Rape’ should be replaced by the term ‘sexual assault’.
‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
Rape laws should be made gender neutral as the custodial rape of young boys has been neglected by law.
A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.

Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment.

It has provided civil remedies to what the provision of cruelty already gave criminal remedies while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc. It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It is about the fundamental design of the marital institution that despite being married, she retains and individual status, where she doesn’t need to concede to every physical overture even though it is only her husband. Honour and dignity remain with an individual, irrespective of marital status. Section 122 of the Indian Evidence Act prevents communication during the marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since marital rape is not an offence, the evidence is inadmissible, although relevant unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

In 2015, a woman came forward about having been raped and assaulted by her husband. She was hospitalised for her injuries, however, her husband was never prosecuted. The woman took the issue in the form of a petition to India’s Supreme Court. Her petition was dismissed, the court saying that the law couldn’t be changed on the basis of one person’s experience.

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In a high court in India in 2012, it was ruled that if a woman denied her husband sex, it was a form of abuse. The ruling was later upheld by India’s Supreme Court as well, saying that being denied sex was a valid reason for divorce. It is seen this way because by denying her husband sex, she is also denying him happiness.

Marital rape should be criminalised because a marriage should not serve as a license to any crime. If I’m in bed with someone and he wants to have sex with me and I don’t want to have sex with him, the only acceptable outcome is to not have sex. Whether the two of us are married has absolutely nothing to do with that. Social changes are slow to occur and especially slow in countries with a large population of India. Women have long suffered from high levels of sexual violence in the country, including at home, but the government is yet to make marital rape a crime. A few months back, when Union Minister Maneka Gandhi said in Parliament that even if there was a law against marital rape, women won’t report it. She further told that a lack of education along with poverty, religious beliefs and societal norms, among other reasons, make such a law out of the question. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted. Marriage stands on equality and respect. By marrying someone you are not submitting yourself to your partner’s demands. You are agreeing to live a life a together with them. They don’t give up their sexual rights as soon as they are married. At last, I just want to say