Marital Rape

Marital Rape 

Author: Kumar Gaurav Vimal,  a student of Faculty of Law, University of Delhi 

Marital rape

Marital rape is a case when a husband uses violence Or the threat of violence to force their wife  to have sex. Section 375 of IPC defines rape. Many countries have already criminalised marital rape as an offence but in our country it is still in question. 

This article focuses on marital rape , which is an aspect of domestic violence that is rarely considered in our society. It focuses on the rape laws in our country, the fundamental rights of citizens and some of the case Laws related to the marital rape and the question that whether marital rape should be criminalised in our country or not?

Rape 

The definition of rape codified in Section 375 of the Indian Penal Code [IPC] includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and wife over fifteen years of age from Section 375’s definition of rape. 

 Section 376 of IPC provides punishment for rape. According to this Section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.

Types of marital rape 

• Force Only Rape- The term describes a husband who uses threats and violence only to the degree necessary to coerce sex. This type of rape usually occurs in relationships where violence is predominantly verbal, and/or in relationships where violence occurs only/primarily in sexual interactions.

• Battering Rape- When beatings and rape are combined, its referred to as ‘battering rape’. The sexual abuse is part of the general pattern of psychological, verbal, emotional, economic and physical abuse.

• Obsessive Rape- The most openly sadistic form of rape is called ‘obsessive rape’. The abuser seems obsessed with sex, and the act itself is violent.

Indian laws and constitution 

• The rape is defined as follows in Section 375 of the Indian Penal Code: ‘An act of sexual intercourse with a woman without her consent, against her will, or under any kind of misconception or fear, then the man is guilty of rape. However, exception 2 present nullifies the crime of marital rape. It states that sexual intercourse by a man with his wife is not rape unless the wife is under the age of 18.  

• Protection of Women from Domestic Violence Act, 2005 consist the reasonable civil remedies for the violence against women which includes marital rape too. Having sexual intercourse without consent can be stated as violation of dignity and thus can be considered as a criminal offence. 

• Article 21 of the constitution- Right to Privacy is a recent judicial development where the Court held that no individual should be subjected to encroachment to their personal space and privacy. 

• Article 14 of the constitution provides for equality before law and equal protection of laws. For the applicability of  Article 14, the two conditions must be relied on i.e. Intelligible differentia and Rational nexus. Exception 2 to Section 375 discriminated against married and unmarried women violating her fundamental right under Article 14 of the Constitution. L

Case Laws on Marital Rape 

•  Bhodhisathwa Gautam v Subhra Chakraborthy – In this case SC held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights. 

• K.S Puttaswamy v Union of India – In this case the court held that held the right to privacy as a fundamental right and includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

• Independent Thought vs Union of India (2017) – The court directed to strike down Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years on the following grounds:

• Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018) -  The court held that Marital rape cannot be ignored just because of this fear. Indian laws give women the right to life and liberty, but not her body, within her marriage. Assault by a husband on his wife would be constituted as an offence under the IPC but if the same husband forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage.

Conclusion

Although it is important to criminalise Marital rape but there are many challenges in this way; both social and legal. There is a where society where a wives expected to fulfill her husband’s desire,  also this law can be misused by the wives against there husbands. The law commission of India should come with a law which should be better for both husband and wife.