Unveiling the Shadows : Exploring Marital Rape in India

13th January, 2024 - 10:38 am Categories: Legal Issues News & Updates Posh Act 0 Comments

Introduction

Marital rape is a sexual crime that occurs in a marriage or in a domestic relationship. In Marital rape, sexual intercourse is done without the consent of one party, and spouse is victimized for this only. Marital rape, violates the right to dignity and bodily integrity, because here one party is not able to take the decision, as whether one wants to involve or not in the sexual intercourse. Despite being a heinous crime, this was not recognized by the Indian Judiciary as a crime, also there are various provisions in the Indian Law, that makes this act as non-criminal in nature. There are some data and figures, which are very shocking in nature, like, there are 185 countries in the world, only 77 out of these recognizes marital rape as an offence. And 34 are countries, which specifically decriminalizes marital rape. India is one amongst such countries.

In this blog, I will try to explore the different dimensions of this topic, its prevalence, what is  the legal framework, specifically from the Indian perspective.

Prevalence Of Marital Rape:

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In India, marital rape is pervasive but under reported kind of sexual assault. Many women are hesitant to disclose cases of marital rape because of cultural and social standards relating to marriage and sexuality. Moreover, it is much more difficult for victims to pursue justice due to the shame associated with marital rape and the absence of legal acknowledgment of it.

According to 2014 research by the International Council for Women, 14% of the women polled said they had been the victims of marital rape, while over one-third of the males acknowledged to forcing their spouses to have sex. Just 0.3% of the women polled in different research by the National Family Health Survey (NFHS) in 2016 reported being sexually assaulted by their spouses in the previous 12 months. Experts contend that because many incidents go undetected, the frequency of rape victims is considerably greater.

It can be observed that the periphery and semi-periphery countries, underdeveloped and developing countries have decriminalized Marital Rape, like, Indonesia, India, Nigeria, Sri Lanka, Tanzania, Oman etc.

But some of the developed countries like, Canada, UK, USA have recognized this as an illegal act.

Indian legal framework working as a safeguard for perpetrators

In India, the legal framework for rape and sexual assault is complicated. Section 375 of the Indian Criminal Code, 1860 (IPC) defines rape as ” Illegal sexual activity with a woman without her permission.” In 2013, an exemption was included in the definition of rape, (Exception 2) of Section 375 – stating that “-sexual intercourse or sexual activities by a man with his wife who is not under the age of fifteen is not rape.” This exclusion was challenged for discriminating against married women and infringing on their right to personal integrity. Also, Indian Penal Code, is not the only law which does not provide safeguards to the victims. But, Domestic Violence, Act of 2005, which was specifically created for the protection of women, also have no provision for marital rape. It says Marital Rape is any form of  sexual abuse in any form of live-in relationship or marriage. However, there are provisions  for the victims, to initiate civil proceedings against the perpetrator but not criminal, civil remedy makes the perpetrator to pay compensation only, and is not dealt with harsh provisions of criminal law.

Back in the year 2017, Justice J.S. Verma Committee was constituted in the aftermath of Delhi Rape case, 2012. The committee recommended for the removal of this exception (which provides immunity to the perpetrator, after the rape) from the Indian Penal Code.

However, this suggestion was not taken into consideration by the Parliament by saying that,  the institution of marriage can be destabilized due to the removal of this exception and marital rape acts, would not be proved due to the various legal complexities involved in this.

Efforts Of Various Stakeholders To Address Marital Rape:

Although marital rape is just not legally defined within India, there have been several initiatives to address the issue. Many NGOs and women’s rights organizations advocate the removal of the marital rape exception and the criminalization of marital rape. Also, they have  already been providing support and counselling to victims of marital rape.

In the landmark case of Independent Thought v. Union of India, the Delhi High Court held  that having intercourse with a young bride would still be considered rape even if the lady gave her consent. The decision defended the rights of a female child and affirmed the importance of informed consent.

The #MeToo movement increased awareness of sexual assault, particularly marital rape, in India in 2018. Several women shared their stories of sexual harassment and abuse, some of which happened while they were still married. It provoked public anger and discussions on the need for legal reform to address sexual assault.

Why It’s The Need Of Hour To Criminalize Marital Rape:

It is crucial for India to pass laws that make marital rape illegal,  as recommended by several international organizations. This will give Indian women a sense of freedom. It will also help India gain worldwide reputation, and other countries that have not yet adopted the law will look for India as an example.

Moreover, these exclusions violate several fundamental rights recognized by the Indian Constitution, give marital rape victims a biased perspective, and give them an unfavorable  social position. Article 19 (1) (a), which addresses the right to freedom of speech and expression, is violated. This right is also curtailed since women are not allowed to express their sufferings, which may be decided by the courts. Additionally, Article 21 of the Indian Constitution, is violated, also has a very broad scope, and implicitly protects the right to privacy, the         right to personal freedom, and many other essential elements for human survival.

Conclusion

Marital Rape is something which is being debated and discussed across intellectuals; newspapers; media organizations; etc. As per my understanding, it becomes the priority of any State to bring a law in this regard, which can totally change the course. If this is not possible, Judiciary need to encroach its boundary, from the protection of a community, as happened by  giving Vishakha guidelines, etc. Different set of laws and guidelines are required that can impose harsh penalty on the perpetrator, so that it can produce a deterrent effect, which would also restrict masses, from pursuing any such activity and would possibly set an example for the present and upcoming generations.

In conclusion, my exploration into the deeply obscured issue of marital rape in India underscores the critical need for comprehensive societal and legal reforms. The prevailing silence surrounding this egregious crime demands a collective awakening to the gravity of the issue. Legislative changes, educational initiatives, and cultural shifts are imperative to dismantle the shadows that conceal the pervasive nature of marital rape.

Amendment of existing laws, providing survivors with the legal recourse they deserve are essential concerns at this point of time. Simultaneously, fostering a culture of consent, dispelling myths, and strengthening support networks are crucial steps. By amplifying the voices of survivors, advocating for change, and promoting empathy, we can collectively contribute to a society that values equality and justice, that perpetuate the suffering of victims within the veil of sanctity of marriage. Only through such concerted efforts can we pave the way for a future where every individual can live free from the specter of marital rape.

Author: Puneet Chumber,  A Student at Rajiv Gandhi National University of Law, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

1. The DHS Program “National Family Health Survey 2015-16” https://dhsprogram.com/pubs/pdf/fr339/fr339.pdf
2. PRS Legislative Research “Rape”

https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary

3. Live-Law “Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional”

https://www.livelaw.in/top-stories/delhi-high-court-passes-split-verdict-on-criminalizing-marital-rapejustice-rajiv-shakdher-holds-exception-2-of-section-375ipc-unconstitutional-198832#:~:text=The%20Delhi%20High%20Court%20on

4. Sankaran, M. V. “THE MARITAL STATUS EXEMPTION IN RAPE.” Journal of the Indian Law Institute, vol. 20, no. 4, 1978, pp. 594–606. JSTOR, http://www.jstor.org/stable/43950556.
5. Bhat, Meghna, and Sarah E. Ullman. “Examining Marital Violence in India: Review and Recommendations for Future Research and Practice.” Trauma, Violence & Abuse, vol. 15, no. 1, 2014, pp. 57–74. JSTOR, https://www.jstor.org/stable/26638333.
6. Gupta, Devansh. “Marital Rape in India.” Indian Journal of Law and Legal Research, vol. 2, no. 2, August-September 2021, pp. 1-18. HeinOnline, https://heinonline-org.rgnul.remotexs.in/HOL/P?h=hein.journals/injlolw2&i=4361.
7. Yadav, Vaibhav. “Criminalizing Marital Rape in India.” Indian Journal of Law and Legal Research, 4, 2022, pp. 1-14. HeinOnline, https://heinonline-org.rgnul.remotexs.in/HOL/P?h=hein.journals/injlolw5&i=1293.