This research paper will examine the complex issue of marital rape in India while highlighting the legal, social and cultural aspects contributing to the decriminalized status of marital rape in India. This paper will analyze and understand the forms of marital rape with its impact on the physical and mental health of the victim. This paper will comprehensively analyze India's legal framework, particularly Section 63 Exception 2 of the Bhartiya Nyaya Sanhita legalizing non-consensual sexual intercourse within a marriage.

This paper will also explore the historical context of the legal exception, particularly due to the patriarchal norms and societal attitudes that consider marriage as an obligating norm for women to provide sexual and domestic service. The paper also discusses the landmark judgement of Independent Thought v/s Union of India challenging the discriminatory practices but failed to criminalize marital rape. The paper will also comparatively analyses the status of marital rape in India with other countries such as the United States, France, Denmark and Myanmar. The paper will ultimately propose legal reforms for the protection of women and the development of a gender-neutral marital rape policy.

Introduction:
Marital rape is defined as an unwanted or forceful vaginal, anal, oral penetration or any other non-consensual sexual act by a spouse. Marital rape is an overlooked issue against women in India. The term rape was defined under Section 63 of the Bhartiya Nyaya Sanhita excludes marital rape from the definition of rape by its exception number 2. This research paper will comprehensively analyse the need to criminalise marital rape in India. In the present world, 77 countries have laws that criminalise marital rape, on the other hand, 34 countries including India explicitly decriminalise marital rape or offer immunity to men who commit rape against their wives.

Background

• Marital rape is defined as a non-consensual form of intercourse by a spouse.
• Historically, marital rape has been justified in the name of matrimonial rights and obligations.
• The status of women was very futile before the independence of India. Though the status has not changed, many steps are being taken in the right direction.
• In India, section 63 of the Bhartiya Nyaya Sanhita does not recognise marital rape as rape by excluding it from the ambit of rape by exception 2 of section 63 which states that "Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape."
• This exception is often considered a loophole granting immunity to husbands from prosecution for rape.
• Cultural and societal aspects play an important role in the current situation as it persists with the view that wives are the husbands' property and must accept their demands.
• The reason for underreporting of such issues is often social and family pressure.

Objectives The primary objective of this research paper is to emphasize the need for the criminalisation of marital rape in India while covering:

• Understanding Marital Rape:
  • This research paper will analyse the concept of marital rape in the special context of India while studying the current legal framework provided by India for such cases.
  • The paper will analyze the Bhartiya Nyaya Sanhita and other relevant provisions dealing with marital rape.
• Understanding Social and Cultural Challenges:
  • The paper will identify the societal attitudes and cultural beliefs that affect the acceptance of marital rape.
  • The paper will also analyse the issue concerning a patriarchal society having gender stereotypes.
• Comparative analysis with other countries:
  • The paper will compare India with other countries in the criminalisation of marital rape to find a suitable practice that can be implemented in India's dynamic social and cultural society.
• Propose Legal Reforms:
  • The research paper will recommend amendments to the existing Indian laws such as Bhartiya Nyaya Sanhita and other provisions to include marital rape as a punishable offence in India.
• Promote social awareness and education:
  • This paper will advocate for a change in educational programs to achieve a change in social perception towards marital rape.
  • This paper will analyse the importance of awareness campaigns, training, and support systems for the victims of marital rape.

Research Paper on Marital Rape

Scope:

• The research paper will focus on its area of research in the Indian subcontinent while comprehensively analysing the status of marital rape in other countries.
• The paper will primarily focus on the social, legal, and fundamental rights aspect of marital rape.
• The analysis will cover the post-independence legislative and judicial development towards marital rape.
• The paper will cover the existing laws governing marital rape and its shortcomings.
• This research covers the challenges in the criminalisation of marital rape such as the burden of proof and the importance of circumstantial pieces of evidence.
• The human rights perspective will be analysed with special reference to international laws.

Methodology:

• This research paperwork includes both qualitative and quantitative approaches to provide a comprehensive analysis of the issue.

Literature Review:

• The holistic review of academic articles, reports, and legal documents on marital rape consisting of gender-based violence and women's rights.
• This paper will also analyze historical and societal studies of marital rape in social and cultural contexts.

Legal Analysis:

• This research paper includes a comprehensive analysis of laws existing in India regarding marital rape such as the Bhartiya Nyaya Sanhita, the Protection of Women from Domestic Violence Act, etc., with legal documents from other countries.

Case Studies:

• The paper will critically analyze the landmark case studies and precedents by the Indian judiciary for practical knowledge of the depths of this issue in society and the lack of support mechanisms for such victims.

Understanding Marital Rape:

Definition and Forms:

Marital rape is defined as non-consensual sexual intercourse committed by a spouse. It is often regarded as a form of domestic violence that affects them mentally and physically. Despite its gravity and spread, it was overlooked due to social and cultural reasons which ultimately led to the lack of reforms in legislation dealing with marital rape. Marital rape can be divided into various forms such as:

• Physical Coercion: Physical Coercion is considered a form of marital rape under which a spouse uses physical force such as slapping, hitting, etc., or threatening the spouse with a fear of causing bodily harm to him or their loved ones.
• Psychological Coercion: Psychological Coercion is a form of marital rape under which a spouse uses threats of harm, divorce, abandonment, etc., to influence the spouse's intent of sexual intercourse.
• Situational Coercion: Situational Coercion is defined as taking advantage of a situation where the spouse cannot give consent. The problem can be considered such as when they are asleep, unconscious, or under the influence.
• Sexual Degradation and Humiliation: Sexual Degradation and Humiliation are defined as compelling the spouse to engage in activities that are humiliating or against the will. Threatening to share explicit images will be considered grounds for marital rape.

Prevalence and Impact: Marital rape is a widespread issue with a significant underreporting of cases due to social and cultural aspects. Various surveys show the alarming rate of underreporting of non-consensual sexual intercourse by spouses. As per the survey of the National Family Health Survey in 2015-16, around 5.4% of married women from the age of 15-49 have faced sexual violence by their husbands. The International Centre for Research on Women also stated that many women have faced marital rape due to a patriarchal society.

Marital Rape Consequences and Legal Framework

Physical Health Consequences:

• Marital rape often leads to physical health consequences such as cuts, bruises, etc., due to forced intercourse.
• Victims of marital rape may suffer from pelvic pain, urinary tract, and other gynaecological issues.
• A non-consensual intercourse often leads to unintended pregnancies, which will further lead to economic, health, and social issues.

Mental Health Consequences:

• There are various adverse effects on victims of marital rape, such as depression, anxiety, etc.
• Post-traumatic stress disorder can also be seen as a result of marital rape, leading to flashbacks, nightmares, and emotional threats.
• The physical and psychological pressure can lead to suicidal thoughts and attempts due to helplessness and despair.

Social Consequences:

• Social isolation is due to a spouse's controlling behaviour or out of shame.
• Another important factor that leads to the underreporting of marital rape is the lack of social support and support mechanisms.
• Social stigma also plays a significant role in affecting the mental health of victims and preventing them from seeking help.

Legal Framework:

Current legal status:

• The legal status of marital rape in India can be seen as a large gap between the need of people and the status of legislation.
• Bhartiya Nyaya Sanhita, 1860:
  • Section 63 of the Bhartiya Nyaya Sanhita deals with the offence of rape while providing Exception 2, excluding marital rape from the ambit of rape.
  • Exception 2 of Section 63 states that sexual intercourse between a man and his wife, provided she is not under 18 years of age, does not constitute rape.
• Protection of Women from Domestic Violence Act, 2005:
  • Section 3 of the act defines domestic violence as any physical, sexual, economic, emotional, and verbal abuse.
  • The act set up a civil remedy for women subject to domestic violence, including sexual abuse, but it doesn't criminalise marital rape as a separate offence.
• International Conventions and Obligations:
  • India is a signatory to the Convention on the Elimination of all Forms of Violence against Women, whose article 2 states all parties to eliminate all forms of discrimination against women by any person, organisation, etc., including marriage.
  • The Declaration by the United Nations on the Elimination of Violence Against Women (1993) also calls for the criminalisation of marital rape.

Historical context:

• This legal framework of India has its roots in the period of colonisation, where the role of women was limited to houses, and the rights provided to them were limited.
• Another reason for ignoring such an important issue is the role of the institution of marriage in Indian society.
• Historically, marriage has been considered a contract through which the wife is obligated to provide sexual and domestic services to the husband.
• Therefore, the patriarchal setup of India has played a significant role in determining the legal status of marital rape as an exception in India.
• Various women activists, groups, and legal experts have advocated for removing the exception of marital rape from section 63 of the Bhartiya Nyaya Sanhita.
• The Indian judiciary has no definite ruling on the criminalisation of spousal rape.
• Justice J.S. Verma's committee recommended the criminalisation of marital rape, but it has not been implemented yet.
• On the other hand, the United Nations has urged India to align its laws with international human rights standards, with special reference to rules regarding the violation of women's rights.

Social and Cultural Factors:
The victims of marital rape are largely affected by social and cultural pressure which often leads them towards suicidal thoughts and other psychological issues.

These social and cultural factors include:

• Social Attitudes Towards Marriage and Gender-Stereotype:
  • Indian society is deeply rooted in the traditional institution of marriage.
  • Marriage is considered a sacred institution holding paramount importance in society.
  • The presumption is that women are subject to husbands and they have a dominant status in the institution, which is a primary reason for the poor condition of women in society.
  • The Indian notion believes that wives must fulfill their husband's demands, including sexual activities.
     
• Impact of Patriarchal Society:
  • The patriarchal structure of society not only influences the social roles of women but also affects the legal and legislative decisions on gender-based violence.
  • The sexual autonomy of women is compromised and undermined due to the patriarchal priority of male authority and control.
  • The patriarchal mindset of Indian society can be seen in legal provisions such as section 63 exception 2 of the Bhartiya Nyaya Sanhita reflects gender biases towards women.
     
• Social Stigma and Barriers:
  • Social stigma plays an important role in stopping the victims from revealing the offence in society.
  • In Indian society, family honour is highly valued, and women who report marital rape risk the family honour and face a lot of criticism for that.
  • Another fear of not being believed and being accused of lying also prevents the victims from coming out and filing cases.
  • Wives can also encounter resistance from family members prioritising family reputation over justice.
     
• Education and Awareness:
  • Education and awareness are considered crucial aspects in bringing a change in society.
  • Comprehensive sex education is required to reshape society by promoting discussions on equality, consent, and respectful relationships.
  • The government should run awareness campaigns to dismantle the myth that marriage provides unconditional sexual rights to the spouse.
     
• Legal And Institutional Reforms:
  • Legal and institutional reforms are considered necessary for countering the social and cultural dilemmas faced by the victims of marital rape.
  • Institutional reforms such as creating effective support systems for victims will slowly reform the social attitude towards the victim of marital rape.
  • These reforms will include training for law enforcement officers, judicial officials, and healthcare providers.

Challenges:
The offence of marital rape is difficult to be proven in the court of law due to various reasons such as:

• Lack of Physical Evidence: One of the main issues while examining a case of marital rape is finding evidence of physical injury. Unlike other forms of sexual abuse, marital rape may not always result in bodily injury. Therefore, it can be difficult to provide conclusive medical evidence.
   
• Differentiation from Aggressive Intercourse: Another issue with the criminalization of marital rape is distinguishing between forced intercourse and aggressive intercourse. The victim's condition may not be easily differentiated due to the similar nature of injuries during both types of intercourse.
   
• Privacy of Relationship: The offence of marital rape is usually confined to the private relationship, making it less likely to find witnesses or external evidence. The evidence should focus on consent rather than penetration or other physical factors.
   
• Coercive Control: Perpetrators of marital rape may control their spouses through coercion, manipulation, and emotional abuse. This control makes it difficult for victims to assert themselves and resist assault. Another factor that promotes coercive control within a family is the society and culture of the nation.
   
• Delayed Reporting: Victims of marital rape may delay reporting due to fear, shame, and societal concerns. Such delays can weaken cases because they make it harder to gather evidence and establish a timeline.

Comparative Analysis:
This section of the research paper will comparatively analyze the status of marital rape in different countries. This analysis will examine and compare various legal provisions of other countries. This analysis aims to provide a comprehensive and brief understanding of how marital rape is viewed in different countries of the world.

• Usa:
  • Before 1975, every US state only had rape laws that dealt with non-consensual sexual intercourse between individuals who were not legally married.
  • An exception in the rape laws at that time allowed a married man to have sexual intercourse with his wife even forcefully, while exempting him from any criminal liability under rape laws.
  • Before 1975, none of the US states had any provision creating criminal liability for marital rape.
  • In the next 20 years, the US faced many women's uprisings and revolutions regarding limited human rights.
  • By 1993, almost all the states of the US had constituted marital rape as a criminal offence, and an individual could be tried for it and punished.
• France:
  • France is one of the countries where marital rape is recognized as a criminal offence and is punishable by 20 years of imprisonment.
  • The concept of marital rape was somewhat ambiguous before 1990 in France as the constitution did not specify whether an individual who is married and commits the act of rape on his wife is considered a rape or not.
  • Article 222-22 of the French penal code says "any act of sexual penetration, of whatever nature, committed on another person by violence, constraint, threat or surprise," this article does not specify marital rape nor denies it.
  • The legality of marital rape could be traced to 1990 when the case known as "Affaire Dubuisson" took place, and the French courts explicitly said that rape within the married couple will also come under the act of rape and be punishable according to the code.
  • It was legally recognized in law no. 92-683 July 22, 1992, which added the concept of rape by a married individual with his/her spouse would come under rape.
• Denmark:
  • Denmark could be considered one of the first countries that labelled rape within the married couple as marital rape in 1965 and criminalized it with a punishment of up to 8 years of imprisonment.
  • Section 216 of the Danish Penal Code says "A person who uses violence or threats of violence to compel someone to have intercourse shall be guilty of rape and liable to imprisonment for a term not exceeding 8 years," it could be understood that any such act done in any social setting would be considered marital rape or rape without any exception of a married couple.
• Myanmar:
  • Myanmar, as well as many other countries, does not recognize marital rape as rape.
  • Section 375 of the Myanmar penal code exempts any sexual relation between a married couple, thus decriminalizing marital rape and exempting it from being considered rape.
  • It is understood that it would have various legal as well as societal challenges in criminalizing marital rape.
  • Most countries in the world have marital rape as a criminal offence and it is punishable by various degrees of punishment according to their own rules and regulations.

Similarly many countries in the world also do not criminalize marital rape or are silent upon the matter due to their views, challenges, and many other legal problems that could occur if it is criminalized.

Case Laws
Nimesh Bhai Bharat Bhai Desai Versus State of Gujarat
In the case of Nimesh Bhai Bharat Bhai Desai vs State of Gujarat, the first informant, Nikita, alleged that her husband forcefully engaged in oral sex and raped her against her will on a specific date and time. She described the course of events, which included alerting her family about the indecent actions and seeking assistance for the physical and mental abuse she had experienced. Nikita saw a shift in her husband's behaviour towards sexual perversion after six months of marriage. These allegations formed the basis of the complaint filed by Nikita against her husband and in-laws. The court considered these allegations in the context of the case.

Judgement
The court held that Section 377 of the IPC would be applicable in cases where a husband compels his wife into carnal penetration of the mouth, irrespective of the wife's consent.

Marital rape was not specifically mentioned in the judgment but the court did not strike down the exclusion clause or urged the state to do so, it can be understood that the judgment did not criminalize marital rape in India.

Independent Thoughts Versus Union of India
The case of Independent Thought vs Union of India centred on the contentious issue of whether sexual intercourse with a girl below 18 years of age should be deemed rape, irrespective of her marital status. The petitioner claimed that the exception clause in Section 375 of the Bhartiya Nyaya Sanhita, which permitted such actions if the girl was married, was discriminatory and detrimental to the welfare of the girl child. The case showed the need to protect underage girls from non-consensual sexual activity and ensure their rights and well-being.

In the case of Independent Thought versus Union of India, the Supreme Court of India declared that sexual intercourse with a girl under the age of 18 is deemed rape, regardless of marital status. The court determined that the exemption in Section 63 of the Bhartiya Nyaya Sanhita, which allowed such activities if the girl was married, was discriminatory and against the female child's best interests. The court deemed the exemption illegal, emphasizing the significance of safeguarding the rights and well-being of adolescent girls.

Proposed Legal Reform

• Repealing Exception 2 to Section 63 of the Bhartiya Nyaya Sanhita: Exception 2 to Section 63 of the BNS currently exempts marital rape from the definition of rape, legalizing non-consensual sexual actions inside marriage. This exclusion should be eliminated to match the law with the fundamental concept that marriage does not imply unconditional permission for sexual activity. Removing this provision would recognize married women's autonomy and consent while also ensuring that all types of non-consensual sex are considered rape under the law.
   
• Broad Definition of Consent: The legal definition of consent must be unambiguous, emphasizing that permission is informed, voluntary, and revocable at any moment. The law should recognize that permission gained by force, manipulation, or incapacitation is illegitimate. This would promote the notion that consent is an ongoing, intentional agreement.
• Legal Recognition of Consent in a Marriage: The law should specifically state that permission is necessary for all sexual activity within the marriage. This would entail a legal reform in marital partnerships, recognizing that spouses have the freedom to renounce sexual activity without fear of legal consequences or cultural disgrace.
   
• Training for Authorities and the Judiciary: To raise awareness of the subject of marital rape, comprehensive training programs for law enforcement personnel and members of the court should be implemented. This training should include the mechanics of consent, the effects of marital rape on survivors, and the significance of handling such cases sensitively and confidentially.
   
• Professional Assistance for Survivors: To guarantee that survivors of marital rape may receive justice, specialized support services should be provided. These services should include legal assistance, counseling, medical treatment, and secure shelters. Survivors should be given a comprehensive support system that meets their physical, emotional, and legal requirements.
   
• Expedite Courts for Rape: Fast-track courts should be established to handle rape cases, including marital rape, to provide survivors with prompt justice. These courts should have specially trained judges and personnel to deal with delicate matters and offer a safe atmosphere for survivors to testify.
   
• Protection of Confidentiality and Private Information: Judicial protections should be enacted to preserve survivors' privacy and confidentiality throughout judicial processes. This involves ensuring that courtrooms remain closed to the public during testimonies and that media coverage does not divulge survivors' identities.
   
• Strict Punishments for Criminals: To prevent individuals guilty of marital rape, the law should impose harsh penalties. Sentencing guidelines should consider the gravity of the offense and its long-term impact on the victim.
   
• Incorporation in the Domestic Violence Act: Marital rape should be mentioned in the Protection of Women from Domestic Violence Act, of 2005. This would provide survivors with new legal options including protective orders to prevent further abuse.
   
• Cooperation with NGOs and Civil Society: The government should work with non-governmental organizations (NGOs) and civil society to raise awareness and establish assistance programs for survivors. This cooperation can assist in closing the gap between legal reforms and their implementation on the ground.
   
• Frequent Inspection and Monitoring: There should be a framework in place to examine and monitor the execution of marital rape legislation regularly. This would guarantee that the legal provisions are adequately implemented and that any loopholes or problems are immediately resolved.
   
• Gender-Insensitive Description of Rape: Section 63 of the BNS should be changed to include a gender-neutral definition of rape. Rape should be characterized as any non-consensual sexual conduct with a spouse, regardless of gender. This guarantees that the law protects everyone, including males, women, and non-binary people.

Written By:

• Atharv
• Akshat Parashar