Marital Rape in India: Rape is Rape, No excuse Please!!

“Her friends used to tell her it wasn’t rape if the man was your husband. She didn’t say
anything, but inside she seethed; she wanted to take a knife to their faces”- F.H Batacan. Why
does Our Penal Code still treat “She’s my wife” as a defence? A marriage license should not
be viewed as a license for a husband to forcibly rape his wife with impunity.
Rape is a ceaseless and heinous crime in India against women. Rape literally includes all the
kind sexual activities like sexual penetration or intercourse without the other person
According to Oxford Dictionaries, Rape1 means, “to force someone to have sex when they
are unwilling, using violence or threatening behaviour”.
Now before going further, we need to know “what is consent?” In simple words consent2
means permission for something to happen, but when it comes to the topic of rape or sexual
activities, it literally means “actively agreeing to be sexual with someone. Consent lets
someone know that sex is wanted. Sexual activity without consent is rape or sexual assault”.
According to IPC “consent” which in other word also known as “will”, here implies the
faculty of reasoning power of the mind that determines whether to do an act or not. Though,
there is a fine distinction between an act done ‘against the will’ and ‘an act done without
consent.’ Every act done ‘against the will’ is obviously ‘without the consent.’ But every act
‘without the consent’ is not ‘against the will.’ Clause (1) of this section applies where the
woman is in possession of her senses and therefore, capable of consenting. In State of Uttar
Pradesh v. Chottey Lal3,  the Supreme Court explained that the expression ‘against her will’
would ordinarily mean that the intercourse was done by a man with a woman despite her
resistance and opposition. While act done without her consent means an unequivocal
voluntary agreement when the person by words, gestures or any form of non-verbal
communication, communicates a willingness to participate in the specific sexual act. Thus, to
absolve a person of criminal liability, consent must be given freely and it must not be
obtained by fraud or by mistake or under a misconception of fact. This clause operates where
a woman is unresponsive whether because of the influence of drink or drugs or any other
cause, or is so imbecile that she is incapable of giving any rational consent. Consent of the
woman has to be obtained prior to the act. Like citing the case of Williams4, the accused was
a choirmaster who had sexual intercourse with his 16-year-old student making her believe
that he is performing a surgical operation to improve her singing voice. Consent was vitiated
by fraud and it was obtained under a misconception, thus, he was held guilty of rape.
Now going back to rape, it really very important to know that Rape is not only savagery
against ladies but rather a grave infringement of a person’s basic ideal to life and individual
freedom, be it a woman or a man. In India rape by an outsider is a penal offense under the
jurisdiction of section 375 and 376 of Indian Penal Code. But Shockingly on the other hand,
it explicitly avoids the marital rape issue from the ambit of conviction.

1
https://www.lexico.com/definition/rape

2
https://www.lexico.com/definition/consent
3
(2011) 2 SCC 550.
4
R. v Williams (1923) 1 KB 340.
Even as we celebrate 70 years of Independence, the women in our country are still not
genuinely free and independent. Even in this so-called modern world they continue to live
under the realm of darkness and fear. It is indeed a sombre and drab reality of India. Marital
rape is one such issue in which a woman has no say, and even if she stands up against this no
one in the society supports her, instead they will blame her for other problems and fights.
To understand the whole scenario the first step is to understand the meaning of Marital rape.
So, Marital Rape, also known as Spousal Rape, is a grievous act of sexual intercourse with
one spouse forcing the other against their consent or a legal union between the two of them
and wife is forced by her husband to do sexual intercourse without her consent or permission.
It can be given other names too like sexual harassment or sexual pressure on the spouse.
Moving forward in this topic, there are principally three kind of Marital Rape: -
1. Force-only rape- Husband uses enough force to coerce the wife into having sexual
intercourse
2. Battering Rape- When the women are raped and simultaneously battered by his husbands
(beaten, pushed, slapped etc.). In this kind of rape, women suffer both physical and sexual
violence
3. Sadistic/Obsessive Rape: - This involves torture. Pornography is frequently involved in
this form of rape.

As well said by Justice Arjit Pasayat:

"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the
soul of a helpless female."

However, despite of increasing amount of cases concerning to Marital Rape in India,

This a really shame for a country like India that it one of that thirty-six countries that have
not considered marital rape as an offence despite in India comes in top 5 countries in the
World where, there is the highest number of cases of Marital Rape. There is still no
enacted laws or punishment for this particular offence.

Justice J.S Verma Committee while evaluating the existing rape laws recommended to
include the Marital Rape also as a crime under Section 375 of Indian Penal Code.7 The
committee referred the case of C.R. vs UK 8 in which the commission of England on
5
https://dictionary.cambridge.org/dictionary/english/de-facto
6
https://dictionary.cambridge.org/dictionary/english/de-jure
7
KD Gaur Textbook of IPC (4TH Edition 2019)
8
C.R. v UK Publ. ECHR
 Human Rights states that “ rapist must be considered as a rapist and rape must be
considered as rape in whichever manner or form it takes place regardless of his
relationship with the victim”. But after all this too, this statement can’t illegalise marital
rape nor it gave any perfect solution to the adult married women (above 15 years) in m
arital rape. Thus, immodestly India, gives full power to the prurient husband to commit
rape freely without any fear. It can be clearly understood that marital rape is viewed as a
rape only if the spouse is under the age of 15 years old and still the seriousness of
punishment is milder and simpler. Unlikely, Human Rights Direction, in India there is no
legal security agreed to the spouse after the age of 15. Hence, we can say that Indian Law
do addresses offence but sadly with the limitation of age

The whole legal system relating to rape is in a mess, replete with paradoxes. The major
legal lacunae that come in the way of empowering women against marital rape are:

Like, in 2005, Indian Judiciary came up with an act of “The protection of Women from
Domestic Violence Act,2005 which somewhere considered Marital Rape as a ‘Local
Violence’. So, under this act the women can appeal to the Court and can get a legal
separation from her Husband in case of marital Rape Article 14 of the Constitution
guarantees the fundamental right that "the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India". Article 14
therefore protects a person from State discrimination 9 But the exception under Section
375 of the Indian Penal Code, 1860, discriminates with a wife when it comes to
protection from rape. Thus, it is submitted, that to this effect, exception provided under
Section 375 of the Indian Penal Code, 1860, is not a reasonable classification, and thus,
violates the protection guaranteed under Article 14 of the Constitution. This offence is
solely committed against the women and it is an infringement of her rights.
Till now, the concept of marital rape has not been fully recognized by the Indian law.
Marital rape being a heinous and a brutal offence in itself affects the victim physically as
well as mentally and also emotionally. The physical injury may include torn muscles,
internal organ injuries, lacerations, injuries in the private organs, soreness, fatigue,
bruising, vomiting. Research shows that women who were battered and raped by their
husbands have chances to experience injuries of even much higher degree, which may
include broken bones, bleeding nose, black eye, knife wounds. In some of the cases, it
even extends to miscarriages, stillbirths, bladder infections, infertility, etc. Women raped
by their trusted partners are susceptible to suffer psychological consequences as well. If
we see it is a clear violation of right to live with Human Dignity. Even Supreme Court of
India has said that the offences of Rape abuse the right to life and right to live with
Human Dignity. Referring to the case of The Chairman, Railway Board v. Chandrima
Das10, The Supreme Court has observed that Rape is not merely an offence under the
Indian Penal Code, but is a crime against the society as whole. Also, In the case of
Bodhisattwa Gautam v. Subhra Chakraborty11 the court held that rape is no lesser degree a
sexual offense than a Demonstration of hostility gone for corruption and mortifying the
ladies. Then where all these judgement statement go when it comes the issue of Marital
9
Constitution, Art14.
10
The Chairman, Railway Board v. Chandrima Das C.A. No. 639, of 2000 (Arising out of SLP(C) No.16439
of1998
11
Bodhisattwa v. Ms. Subhra Chakraborty, MANU/SC/0245/1996: AIR 1996 SC 922.
Rape, as if we see the marital exception principle is violative of Spouse’s entitlement to
live with human dignity. Hence, any kind of law or act which damages ladies’ entitlement
to live with Human Dignity and gives prurient spouse to drive wife to have sexual
intercourse without her own will is unlaw along with all these lines above given by
courts.

But what is the cause of this kind of crime (Marital Rape)?

One of the most major cause or reason for this heinous crime is nothing but the ill
mentality of the prurient husband and society too which encourages him to do this kind of
ruthless act by telling him that this kind of act makes him a real man, this disgusting
mindset makes this crime so normal. But one thing should be noted that Rape happens
because of the rapist, none of the reasons other than that really matter. The ill mindset of
people made them think that there is no kind of thing which is known as marital rape.

Though marital rape is the most common and repugnant form of masochism in Indian
society, it is hidden behind the iron curtain of marriage. The Hon'ble Supreme Court of
India, the last hope for reforms in outdated approach towards marital rape after
Parliament had hung up its boots, said that country isn't ready to accept marital rape as a
crime. It can be seen that the law makers have a different view and believe marital rape
cannot be applied in the Indian context because of factors like "level of education and
illiteracy, poverty, social customs and religious beliefs".

Marital Rape is really a very monstrous act done by own partner and which is one of the
most prevalent cause of women getting vulnerable and endangered. And the saddest part
in this is that due to this illiterate and this barbarous society she still needs to remain with
her assailant after all this too. And it is a fact that women are raped by their own spouse
are more inclined to various attacks and frequently endure long haul physical and
enthusiastic issue. Therefore, it is one of the most genuinely wrongdoing against women.
Also, this is so sadly puzzling that our law gives protection to a girl under the age of 18
from marrying but on the other hand it legalizes non-consensual sex intercourse with the
wife who is just 15 years old. Isn’t it shocking?
Therefore, it is a high time Indian Judiciary should take a serious step towards
criminalizing Marital Rape too, so that we can move a step forward towards the road of
progress in real sense. The cases of marital Rape are increasing because of mistaken
belief and darker side of society’s thinking about the Marital Rape. There is a great need
to provide adequate education to the people of the society about crime, as before telling a
girl not to go out late as they can be raped its is important to know that women are not
safe even in their home. So, let’s begin it from our home.