MARITAL RAPE: THE SECRET ATROCITY OF DOMESTIC ABUSE By Abhishek Kumar from Campus Law Centre, Delhi
“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
The pronouncement by Sir Matthew Hale, Chief Justice in England During the 1600s clearly defines the present status of Marital Rape in India. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."[i] Hence the question arises “Are men in India culturally superior that they cannot be thought of committing marital rape?”[ii]
Marital rape (or spousal rape) is the act of sexual intercourse with one's spouse without the consent of the other spouse. It is a form of domestic violence and sexual abuse. Although it was once widely unrecognized by law and society as wrong or as a crime, it is now recognized as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.[iii] However, Marital rape is not criminalized 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.[iv]The exception to Section 375 clearly states that Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Marital rape prima facie violates Article 14[v] of the Constitution as it creates a classification between married and unmarried women and denies equal protection of the criminal legislation to the former.[vi]
In Bodhisattwa Gautam v. Subhra Chakraborty[vii], the Supreme Court said that; “rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution.” However, the very same court negated the judgement by not recognizing it to be a crime.[viii]
Around the world, 603 million women live in countries where domestic violence is not considered a crime and more than 2.6 billion live in countries where marital rape is not a criminal offence[ix] and India is one of them.
Previously, the 42nd Report of the Law Commission (1971) suggested that marital rape be criminalized. However, the 172nd Report vehemently opposed the idea stating that this would constitute to “excessive interference with the marital relationship.”[x]
A wife has to live with her assailant and that too in constant terror of another assault. The idea that a man can't rape his wife suggests married women do not have the same right to safety as do unmarried women.[xi]
The definition of "rape" was widened only recently in response to a horrific fatal assault in New Delhi in 2012. Forced penetration by any object in any orifice is now a crime. This incident sparked mass protests in India. But while public patience is wearing thin on rape by strangers, the fact that the home itself could be an unsafe place gather fewer supporters.
[i]History of the Pleas of the Crown (1736), vol. 1, Ch. 58, p. 629
[ii] PTI, Are Men in India Culturally Superior to Women: HC on Marital Rape, The Quint, (May 15, 2017 at 10.53 P.M), https://www.thequint.com/india/2017/05/15/are-men-in-india-culturally-superior-to-women-hc-on-marital-rape
[iv]Ankita Sen, Marital Rape and the Law in India, iPleaders, (May 9, 2006), https://blog.ipleaders.in/marital-rape-law-india/
[v] Article 14 of Constitution of India
[vi] Priyanka Rath, Marital Rape and the Indian Legal Scenario, Indian Law Journal, http://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html
[vii]Bodhisattwa Gautam v. Subhra Chakraborty , (1996) 1 SCC 490
[viii]Tandon, N. & Oberoi, N., Marital Rape: A Question of Redefinition, Lawyers Collective, March 2000, p. 24.
[ix] UN Women Justice Report: get the data, The Guardian, https://www.theguardian.com/global-development/poverty-matters/2011/jul/06/un-women-legal-rights-data#data
[x]Deya Bhattacharya, Marital rape: Legitimised by law protected by courts, First Post, http://www.firstpost.com/long-reads/marital-rape-legitimised-by-law-protected-by-courts-3401002.html
[xi]List of RAPE MYTHS, Sociology of Rape, University of Minnesota Duluth, http://www.d.umn.edu/cla/faculty/jhamlin/3925/myths.html
[xii] Katie Dallas, Why It’s Entirely Legal for a Man to Rape His Wife in India, Global Citizen, (March 7, 2017), https://www.globalcitizen.org/en/content/marital-rape-india-trisha-shetty-interview/
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