Rape is a heinous crime. It is a crime against humanity. Its traces are left forever on one's mind, body and soul. Marital rape is a kind of rape which makes a person incapable of trusting. Marriage is an institution based on trust and support, but it questions trust and respect when something like this happens in a relationship. Rape being a violation of human rights means forceful sexual intercourse by a husband with his wife.

The history of spousal rape goes back to ancient times when women were considered a mere object and property of their husbands. Their consent did not matter as they were treated as mere objects owned by their husbands. Even today in the 21st century, women's consent and her will are not important. It is often assumed that consent is not needed for the wife as implied.

Rape is defined under sec 375 of the Indian penal code. However, marital rape does not have any specific provision, but it has been mentioned that only when the wife is under the age of 15, then only forceful sexual intercourse will be considered rape. Now, this is a topic for discussion. Some people believe that this provision should be removed because it is against women's rights and should be criminalized. Whereas, some believe that criminalizing it would be "excessive interference in the institution of marriage." Let us look into this contentious issue and discuss whether it is right to criminalize it or not.

History: Conditions of women in different periods.
In ancient times women were treated with respect and dignity. In royal households, women were respected and made significant contributions to decisions and administrative functions. The females were given the status of mother or JANANI. They were provided the opportunity to attain high intellectual and spiritual opportunities. Women were not forced to marry; they were free to choose their partner after their education. Which shows how much they valued women's consent. There was no sati system or early marriage.

But the question is, if our ancestors had treated women with such dignity and respect, then how did it all go wrong? When did we start treating them like an object whose freedom, honour and dignity became dependent on a man? As the later Rigvedic period started women started being discriminated against. The famous Manu dictated that women would always remain dependent on men, both before and after marriage to their father and husband. Sati, child marriage, prostitution, and the devdasi system were imposed on them.

Financially backward households did not appreciate the birth of a girl child; more preference was given to the birth of a male child. India, as a patriarchal society, has looked down on women as lower than men. Women were considered chattels whose only purpose was to look after their families and to fulfil their husband's desires.

They were not allowed to speak or participate in any decision-making, whether such a decision would affect them. Men, being the only bread earners, were seen as powerful and with respect. Hence, they were considered superior to women. Which eventually made them feel that they had all the authority, rights, and power to make their wives feel inferior. When the Muslim invaders came to India during the medieval period, the conditions of women worsened. In modern times, the status of women has improved greatly, but not in the way it should have improved for half of the country's population. The issues and challenges for them have changed over time. There have been many efforts to empower women.

Govt. has taken many steps to provide them with equal opportunities. Many policies and programmes have been launched to promote women's health, education, and economic development. They are now more independent and capable of running a home by themselves. Men are not the only breadwinners in the family. But along with these achievements, there have been some significant challenges like, an increase in domestic violence, cases of dowry deaths, infanticide, female feticide, exploitation and workplace, unequal pay, gender discrimination etc. There has been an increase in the cases of rape as well. Whether it is a minor girl of 6 years or an elderly lady of 60 no one is safe.

A lady is not even safe in her house with her husband who she chooses for life. We understand that physical relationships are an important part of a marriage, but does that mean they must be against one's choice? A marriage without sex, the Kerala High Court, in Sanjan vs Azara, observed in 2013, is a life of "perpetual torture".

In Praveen Mehta vs Inderjit Mehta, a 2002 Supreme Court case where the wife was suffering from a medical condition but refused to get treated or tested for the same and stayed away from the matrimonial home, the court reasoned that this would cause "anguish and frustration" for the husband by depriving him of a "normal sexual life and cohabitation" within marriage. Similarly, in Rita Nijhawan vs. Balakishan Nijhawan, the court observed that sex is the very "foundation of marriage" and without it would be impossible for any marriage to continue for long.

Timeline

• In 1736, British Chief Justice Matthew Hales introduced the "Doctrine of Hales." He considered both husbands and wives as one body. The Hales's principle says that a husband cannot be guilty of raping his wife as she has given herself to her husband through their matrimonial contract. The concept of implied consent of the wife has risen from this doctrine.
• When we talk about India, the first petition to criminalize Marital Rape was filed in 2015 by RTI. It was a PIL filed in the Delhi High Court, to challenge the exception 2 to sec 375 of the Indian Penal Code. The PIL argued that this exception violated the fundamental rights guaranteed by Articles 14, 15, 19, and 21 of the Indian Constitution. Then the court issued the notice to the center and sought its stand.

• In 2017, the central government filed an affidavit saying that criminalizing marital rape may "destabilize the institution of marriage" and could be used against the husband. The Supreme Court then read down the rule and ruled that sexual intercourse by a man with his wife is not rape if the wife is above 18; earlier it was 15.
• In 2018, the Delhi government informed the High Court that marital rape is already an offence of cruelty under the law.
• In 2022, the High Court began day-to-day hearings about the petition to criminalize marital rape.
  • On May 11, the High Court gave a split verdict. The case was led by a two-judge bench, Justice Rajiv Shakdher and Justice Hari Shankar, who disagreed on their verdicts on the petitions. The case will now go to the Supreme Court.
  • The order delivered that "A brutal act of sexual assault on the wife, against her consents, albeit by the husband, cannot but be termed to be a rape." It further stated that the legislature must consider making marital rape a crime.

Courts view
Earlier this year the Karnataka high court had made a powerful statement in the case of Hrishikesh Sahoo v State of Karnataka and Others, where a man was accused of forcing his wife to be a sex slave. The court had said that marriage is no license to "unleash a brutal beast". The bench pointed out that "A man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman "wife".

Justice M Nagaprasanna in his verdict said that marriage does not give any special "male privilege" to the husband. He refused to drop the charges against the husband. He also rejected the husband's plea that he cannot be tried for marital rape under the Indian Penal Code.

Justice Shakdher's perspective

Justice Rajiv Shakdher's judgment is a powerful critique of the marital rape exception under Indian law, and it highlights several key constitutional rights that are compromised by this exception:

• Article 14 (Right to Equality): Justice Shakdher argues that treating marital rape differently from other forms of rape violates the principle of equality. By protecting unmarried rape victims but not married women, the law creates an arbitrary classification based solely on marital status, which lacks a reasonable basis. In the case of Harvinder Kaur vs. Harmander Singh, the Delhi High Court held that the Constitution of India cannot intervene in matters of households as it would destroy the institution of marriage. The court also stated that Article 14 and Article 21 do not have any role in the privacy of home and married life.
   
• Article 15 (Right to Non-Discrimination): The judgment emphasizes that denying legal recourse to married women against marital rape amounts to gender-based discrimination. Article 15 prohibits discrimination based on sex, and the marital rape exception inherently discriminates against women by implying that marriage overrides a woman's bodily autonomy.
   
• Article 19(1)(a) (Right to Freedom of Expression): As Justice Shakdher highlights, the right to freedom of expression includes a woman's right to assert her sexual agency and autonomy. This autonomy is undermined when the law implies that marriage deprives her of the right to say no, effectively silencing her agency within the marital relationship.
   
• Article 21 (Right to Life and Personal Liberty): The right to life under Article 21 includes the right to live with dignity, personal autonomy, and bodily integrity. By not criminalizing marital rape, the law compromises a married woman's fundamental rights to dignity, safety, and freedom from violence.

Striking Down Section 376B (Sexual Intercourse by Husband During Separation)

Justice Shakdher also critiques Section 376B, which criminalizes non-consensual intercourse by a husband on a separated wife but imposes a lighter punishment compared to other cases of rape. He argues that there is no valid justification for treating separated husbands differently from any other individual committing rape. This distinction, he suggests, reinforces the notion that a husband has partial "rights" over his wife's body, even during separation, which is inconsistent with constitutional principles.

Implications of the Judgment
ustice Shakdher's opinion lays a strong foundation for re-evaluating and potentially abolishing the marital rape exception. By recognizing a woman's right to withdraw consent at any time, irrespective of her relationship with the accused, the judgment advocates for equal protection under the law. This interpretation aligns with global human rights standards and emphasizes the need to update India's legal framework to reflect modern understandings of consent, equality, and individual rights.

Effects on women's health
In India, nearly 83% of married women aged 15 to 49 have identified their husband as the perpetrator of sexual violence, while 7% attributed such offences to a former husband, according to the 2015-16 National Family Health Survey (NFHS) report. The NFHS-4 report further reveals that 4% of these women were coerced by their husbands into sexual intercourse, 2.1% were forced to perform specific sexual acts, and 3% faced threats when they refused or did not wish to participate in sexual activities. Rape has more grievous effects on victim's psychological health if it is done by someone they know or trust.

While we always talk big about rapes and how the law should be more strict, we refuse to discuss how Marital rape is also a form of rape and the law needs to criminalize it. Most sexual violence in India occurs within marriages but approximately 10% of victims report the abuse. Women who have been abused regularly by their husbands are more likely to suffer from psychological issues. It is shown in many studies that the abuse can lead to depression, flashbacks, post-traumatic stress disorder, sleep disorders, suicidal thoughts, etc.

US has reported that marital rape victims suffer from adverse mental health outcomes such as PTSD and depression and suicidal feelings as compared to those assaulted by strangers. The inability to talk about the abuse and seek help also negatively impacts women's mental health. There is a high chance that the mental health burden from marital rape is higher in India. Since people don't want to talk about it, there is a lack of awareness and a lack of help-seeking avenues and procedures.

Comparison to other countries
United kingdom: In the United Kingdom, marital rape is a criminal offence under Sexual Offences Act 2003. Before 1992, marital rape wasn't considered an offence and a husband could enforce conjugal rights on his wife without her consent. The question of whether a man can rape his wife was brought to the House of Lords in 1991, which consists of 5 lords. The court held that the exemption of marital rape from common law fiction has never been valued and has never existed in English law.

So the husband was sentenced to imprisonment for three years and further imprisonment of 18 months for an attempt to rape and sexual assault. Before this judgment husbands were not prosecuted for the offence of marital rape. This judgment is a true example of the evolution of the common law system along with the changes in development in the areas of social, cultural and economic.

Australia: In October 1976, Mr. Peter Duncan introduced the legislation which became the first jurisdiction in the common law world to enact rape in marriage legislation. The new law includes a provision removing immunity formerly granted husbands from prosecution for the rape of their wives. Before this reform, South Australian rape laws were similar to those of most other English common law jurisdictions. In 1975, Mitchell Committee was formed seeking changes in laws relating to rape and sexual offence.

The report stated that "consent is given for sexual intercourse during the time of marriage; it cannot be revoked on the subsistence of marriage. And that it doesn't follow up with modern thinking. It was argued that the law which treats the wife as the property of her husband should be eradicated. Australia is divided into 7 federal states and all of them have their federal laws. Therefore, the punishments for all crimes are different in these states. The same goes for rape and sexual offences.

France: Marital rape was recognized as a crime by the court of appeal in 1990, for the first time as "spousal rape". The intention was to protect the rights of every individual. In a ruling on June 11, 1992, it was held that "the presumption to consent between spouses for a sexual relationship is only valid until there is a proof to contrary". This point of view is also adopted by the European Court of Human Rights. The punishment for marital rape is a long prison sentence which can be up to 20 years. This is longer than the recommended imprisonment for raping a stranger which is 15 years

U.S.A: Chief Justice Mathew Hale in the seventeenth century spoke that it is impossible to commit rape in a marriage and there is irrevocable consent, which means that the man has an absolute right over his wife in terms of sexual relations within marriage and founded an exception for marital rape. A case of 1857, in Massachusetts became the first one to recognize the exception for marital rape. It was said that it is very difficult to imagine how a husband could be prosecuted for an offence like rape. It is even more disruptive than the act itself.

The women's movement in the 1970s led to a change in the law in their favor. In 1976, Nebraska became the first of the 50 states in America to criminalize marital rape. By 1993 it had become a crime in all 50 states. In which many states did not distinguish between marital and non-marital rape. In South Carolina, those who have done first-degree crimes of rape, including those of marital rape carried an imprisonment of 30 years. The punishment for marital and non-marital rape has been kept the same.

Conclusion
Marital rape is a stigma on a very sacred relationship known as marriage. It is nowhere right to assume that husband has any right to force themselves on their wife or to take part in any type of sexual activity. It is not logical that being married has anything to do with consent. How hard can it be for a man to understand that? Marital rape needs to be criminalized because it stops women to live a healthy marital life with human dignity. It is against their personal choice.

Spousal rape plays with their emotions and makes them question their choice. The victim often feels that they are not capable of trusting their partners anymore. It is high time now that the legislature considers criminalizing marital rape and comes up with a better system to protect the individual rights of women so that they can feel protected and respected in their own homes.

References:

• https://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
• https://blog.ipleaders.in/marital-rape-indias-legal-labyrinth/
• https://scholarworks.sjsu.edu/cgi/viewcontent.cgi?article=1117&context=themis
• https://www.legalserviceindia.com/legal/article-9447-marital-rape-and-consent-in-marriage.html
• https://timesofindia.indiatimes.com/readersblog/thoughts-on-marital-rape/marital-rape-a-heinous-crime-56562/
• https://www.theindiaforum.in/law/criminalising-marital-rape-india
• https://mslr.pubpub.org/pub/vlo7anq8
• https://www.researchgate.net/publication/330220793_Status_of_Women_in_Ancient_India
• https://www.outlookindia.com/national/marital-rape-in-india-the-history-of-challenging-the-exception-news-304055
• https://articles.manupatra.com/article-details/Marital-Rape-and-Law
• https://www.ndtv.com/india-news/on-criminalisation-of-marital-rape-split-verdict-from-delhi-high-court-2965530
• https://www.ndtv.com/india-news/no-need-to-criminalise-marital-rape-centre-to-supreme-court-6708434#ndtv_related
• https://www.hindustantimes.com/india-news/rape-is-rape-karnataka-high-court-declines-to-drop-marital-rape-case-against-man-101648054307123.html
• https://article-14.com/post/why-making-marital-rape-a-crime-is-unlikely-to-provide-married-women-the-legal-backing-to-say-no-to-forced-sex-6494ffaa66bab
• https://www.ojp.gov/ncjrs/virtual-library/abstracts/rape-marriage-legislation-south-australia-anatomy-reform*
• https://pmc.ncbi.nlm.nih.gov/articles/PMC10021972/