Marital Rape In India

“Marital rape” can be defined as having sexual intercourse with one’s spouse without the latter’s assent or consent forcefully. It is unwanted sexual intercourse that usually involves a man using force, the threat of force or physical violence on his wife when she does not give consent to have it.

Types of Marital Rape:

  • Battering rape:In this type of rape, women have to undergo both physical and sexual violence in their marital relationship. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. It is the most common form of marital rape found in India and a majority of marital rapes fall in this category. More than 45% of marital rapes in India are battering rapes.
  • Force-only rape:This type of marital rape involves the usage of necessary force by the husband to coerce their wives into sexual intercourse. These assaults are typically inflicted on spouses (wives) who have refused sexual intercourse.
  • Obsessive rape/sadistic rape:This type of marital rape involves torture or perverse sexual acts. It tends to be very violent and may result in physical injuries.

Around 70% of women in India are victims of domestic violence.

The National Family Health Survey (NFHS) 2015-16 data analysis indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.

As per the survey, a very small percentage of women seek any kind of help for the violence they have experienced. Data suggests that only 10 per cent of married victims of sexual violence seek help.

Marital rape is considered to be a crime in more than 100 countries all over the world including Nepal and Thailand.

However, marital rape is not a crime in India and it is one of the only 36 countries where marital rape is still not criminalized.

When Seeing All These Statistics only one question arises, then why is not Criminalized?

Potential misuse of the law:

There is a high possibility of misuse of this law since it is related to a very personal and sensitive subject like sex between married couples. Records say that around 85% of dowry cases turn out to be false while a majority of cases registered under 498A are false or a mistake of fact or law or a civil dispute. Considering such a state of affairs, making marital rape a criminal offence would prove to be a disaster harming social harmony.

Burden of proof:

The concept of burden of proof is a complex issue. When marital rape would be considered a crime, there will be a burden either on the wife to prove the offence or the husband to prove himself innocent and therefore it will be very difficult to apply.

Threat to the institution of marriage:

Marriage is a concept that is built around the idea of love, trust and respect. However, many argue that criminalizing marital rape will make the parties in a relationship try to be “legally careful” in the normal course of affairs fearing the occurrence of such situations or coming up of such allegations. Similarly, if wives accuse husbands falsely of committing such offences this may lead to the breakdown of the institution of marriage.

Against privacy:

Some argue that making marital rape a crime would allow the State to interfere in the personal affairs of individuals. This will be a violation of the right to privacy inherent in the Right to life guaranteed under Article 21 in the Indian Constitution.

Recently, the cases regarding Marital Rape appearing on the Delhi Courts and other courts, the Kerala High Court observed that Marital rape is a good ground to claim divorce.

  • The court said an insatiable urge for the wealth and sex of a husband had driven a woman to distress.
  • In a patriarchal society, the“reasonable person” is always a male, who judges the place of a female in the social process.
  • Therefore, women end up being perceived as baby-making machines where their right to bodily autonomy and reproductive rights are inconceivable and preposterous.
  • Rape not ground for Divorce: As marital rape is not a ground for a divorce in any personal laws and even the Special Marriage Act, 1954, It cannot be used as a ground for divorce and cruelty against the husband Thus, the women remain helpless and keep suffering in silence.

Considering all these data few steps can be taken towards the issues such as:

  • It is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC. By removing this law, women will be safer from abusive spouses.
  • They can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
  • Indian women deserve to be treated equally, and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
  • It is important that legal prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police officers and those in society generally.

Marital rape is a complex issue that needs a deep and detailed discussion. Criminalizing marital rape will not merely help. Rather there is a need for rectifying and filling the gaps in existing laws and doing away with archaic ones that tend to function against the well-being of women and the society as a whole. Public consultation and discussion with all the stakeholders may be the way forward.
Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.
A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life.
This should be always embedded within the mind of each and every Individual Indian Citizens for the basic cause of betterment of our society and the country.

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