Marital Rape
Abstract
Marital rape is a very controversial and sensitive topic and has been subjected to many debates since ages. Marital rape has been defined as having non-consensual sexual intercourse by a husband with his own wife. This research paper presents in-depth insights of marital rape and why it should be criminalized in a country like India which solemnly believes in providing justice (social, economic and political), and equality to its citizens as mentioned in our constitution’s preamble.
The passage then transitions into an introduction providing an overview of exception 2 of section 63 of Bhartiya Nyaya Sanhita, 2023 shedding light upon various causes and effects of marital rape on women, its historical background, laws related to marital rape in India and court’s verdict on cases related to marital rape.
The narrative then shifts to stating ill-impacts of not criminalizing marital rape in India, the significance of criminalizing marital rape, the relevance of consent in marriage and arguments against criminalization and counter arguments.
This passage delves not only into criminalizing marital rape but also answers various questions such as whether marriage is really a sacred bond or a license to rape? Should India criminalize marital rape to ensure gender equality and women’s fundamental rights?
Ultimately, criminalizing marital rape is not an attack on institutions of marriage but a crucial step towards achieving gender equality by ensuring that women’s consent is significant in every phase of her life, including marriage.
Introduction
Marital rape (also widely known as spousal rape) is an act of sexual intercourse by a husband without the consent of his wife. Historically, the logic behind non-criminalizing marital rape is that there is no such term like ‘marital rape’ since the term rape is derived from the Latin word ‘rapere’ which originally meant to steal or to seize and carry off, and it was believed to be impossible to steal something you already ‘own’—a husband was assumed to own his wife in marriage.
It can be seen that the causes of marital rape are majorly based on deeply-rooted patriarchal mindsets considering women as the property of their husbands. However, there are many other causes of rape in marriage such as economic dependence of women, legal loopholes, lack of awareness about consent, social and cultural silence, and weak support systems.
Impacts of Marital Rape
Victims of marital rape suffer severe psychological, social and physical stress leading to long-lasting trauma, reproductive health issues, post-traumatic stress disorder (PTSD) and often suicidal thoughts. Major impacts on women’s mental, physical, social and reproductive health include:
- Physical and reproductive health impacts: Chronic pain, vaginal bleeding, unwanted pregnancies, physical injuries, reproductive tract infections, and increased risk of HIV/AIDS due to repeated and violent sexual assault.
- Mental and psychological impacts: Stress, anxiety, trauma, depression and suicidal thoughts. The trauma is often more severe and long lasting than that experienced by victims of stranger rape.
- Social impacts: Since India has not yet criminalized marital rape, most cases go unreported due to stigma, cultural taboos, lack of awareness and legal loopholes, leading to social isolation of women.
Laws Relating to Rape in India and Their Loopholes
Section 63 of Bhartiya Nyaya Sanhita defines rape, with exception 2 stating that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. This excludes wives above 18 years from the definition of rape.
Loopholes: Section 63 calls for serious amendment as criminal prosecution is only available to victims of marital rape below the age of 18. Victimized women can take civil remedies under the Protection of Women from Domestic Violence Act (PWDVA), 2005, which includes physical and sexual violence. Remedies include protection orders, monetary compensation, divorce, or judicial separation on grounds of cruelty.
Some landmark judgments:
- Independent Thought v. Union of India (2017): The Supreme Court recognized marital rape for the first time and declared intercourse with a wife aged 15–18 as rape, protecting married girl children.
- Bodhisatwa Goutam v. Shubhra Chakraborty (1996): The court held rape as a violation of Article 21 (right to life and liberty), linking sexual assault to fundamental rights.
- RIT Foundation v. Union of India (pending): A constitutional challenge to marital rape exception. Delhi High Court gave a split verdict; the case is now in the Supreme Court.
Why Marital Rape Should Be Criminalized?
- Violation of consent: Marriage does not mean absolute consent. Consent must be ongoing, not assumed for life.
- Health and psychological impacts: Victims suffer trauma, stress, depression and physical injuries.
- Violation of human rights: Denying legal protection violates Article 14 (equality), Article 15 (non-discrimination) and Article 21 (right to life and dignity).
- Global standards: Over 100 countries have criminalized marital rape. India remains one of 32 countries that have not.
Arguments Against Criminalization and Counter-Arguments
- “It will break families”: Families built on abuse are not healthy.
- “Women may misuse the law”: Laws cannot be discarded simply because they may be misused, just as money cannot be abolished because it can be looted.
- “Marriage implies consent”: Consent must be specific to each act and cannot be assumed permanently.
Conclusion
Over 100 countries have criminalized marital rape, and it is high time India does the same to ensure the safety of married women. The ancient view of marriage as a sacrament with unquestioned male authority is obsolete. Modern marriages are partnerships of equals, where no individual’s right to say “no” can be taken away.
References
- Bhartiya Nyaya Sanhita, 2023 – section 63
- Indian Constitution – Article 14, Article 19 and Article 21
- “Delhi HC delivers split verdict on Marital Rape” (May 12, 2022) – The Times Of India
- “Marital rape is not a crime in 32 countries. One of them is India” (Aug 26, 2021) – News18
- Independent Thought versus Union of India, 2017
- indiankanoon: https://indiankanoon.org
- wikipedia: https://en.wikipedia.org
- Marital rape laws by country: https://en.wikipedia.org/wiki/
Written By:
- Himanshi Jain
- Pranjal Singhvi
