If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.[1]

Sexual violence in marriage has a history as long as the institution of marriage itself. But for the millennial generation, marital rape  like other forms of sexual assault is considered a private trouble and not a public issue. Sadly, sexual violence against women and girls still remains deeply entrenched and politicized around the globe. Perhaps no other allegation of crime exposes a woman's credibility to such intense hostility and imposes the penalties of shame and stigma to a more severe degree than alleging rape.

Such extraneous points of critique not only help in creating an atmosphere of shame and stigma associated with sexual violence, but are also seen as crucial in creating an affirmative defense and inevitably building the case against rape victims.

In recent times, India's rape culture has often found itself under the international media spotlight. Latest controversies include the 2012 Delhi gang rape, 2017 Unnao rape case, 2018 Kathua rape case, and many others which sparked global outrage and drew attention to India's outdated laws that were failing to protect women from sexual assault. Amidst the sea of problems that surround sexual violence in India, one prominent but still unresolved issue is the legal system's continuous recognition of the legal immunity bestowed upon men who rape their wives.

Concept of Marital Rape

The definition of rape as defined under Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving nonconsensual intercourse with a woman. So in short, Rape is an offence which is violative of a woman's life, dignity and self-respect but when it occurs within the four walls of a matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification.

Marital rape can be done by the utilization of force solely. A person may use physical force, threat of force on his spouse or to any other person, or implied harm based on prior assaults causing the woman to fear that physical force will be used if she resists. It is basically a non-consensual act of violent perversion by a husband against his wife where she is physically and sexually abused.

Marital Rape can be in the form of Forced Only Rape where the husband uses threats and violence only to the degree necessary to coerce his wife to have sex. The second one comes in the form of Battering Rape where beatings, assault along with rape and other forms of physical violence are combined and the third is called 'Obsessive Rape'[2] where the abuser seems to be a sadist and a nymphomaniac and therefore the act in itself is violent.

In many countries including India, the offence of marital rape has not been sufficiently accounted for in the law. The law does not punish rape within marriage if the woman is above fifteen years of age. Forced sexual intercourse is an offence only when the woman is living separately from her husband under judicial separation/custom. It must also be remembered that situations of marital rape occur within the confines of the home, and therefore there are often no witnesses to the crime.

History of Marital Rape

Historically, the term rapio, means 'to seize'. Rape is, therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear, or fraud. Rape can be viewed as an act of violence on the private person of a woman, an outrage by all means and the ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as 'deathless shame and the gravest crime against human dignity'[3].

The Patriarchal framework that administers families had constantly considered women as an unimportant property of her spouse or guardian. So rape was considered as theft of ladies and wrong against a spouse or guardian. This belief system impacted the legislatures in disregarding offense of spouse rape by giving it shield of marital, right of the spouse and by this they considered that ladies cannot protest for sexual satisfaction with her better half as they have no will over her own sexuality. This discernment has degraded women's' entitlement to uniformity and equity.

For centuries politicians and judges claimed that marital rape did not exist within the law and as a matter of public policy could not occur. For example, in 2013, in the case of Mandy Boardman, recalled that her husband, drugged and raped her over a three-year period.[4] Boardman's case raises important questions about the role of law in the prosecution of rape as well as how familiarity or family remains an embedded feature in the mitigation of sexual violence.

Rape is not only savagery against ladies but rather a grave infringement of a person's basic ideal to life and individual freedom. Connection amongst casualty and culprit does not transform it. Social disgrace associated with marital rape as a smothered women's voice against her husband, who uses his preferable position over break her trust and individual dependability. Today there are many countries that have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape.

These countries include Albania, Australia, Belgium, Canada, China, Denmark, France, Hong Kong, Ireland, Italy, Japan, New Zealand, Norway, Philippines, Scotland, South Africa, Taiwan, Tunisia, United Kingdom, the United States, and recently, Indonesia. The criminalization of marital rape in these countries indicates that marital rape is now recognized as a violation of human rights. In 2006, it was estimated that marital rape is an offence punished under the criminal law in at least 100 countries and India is not one of them as even though marital rape is prevalent in India, it is hidden behind the sacrosanct curtains of marriage.

Effects of Marital Rape

Despite the historical myth that rape by one's partner is a relatively insignificant event causing little trauma, research indicates that marital rape often has severe and long-lasting consequences for women. The physical effects of marital rape may include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Specific gynecological consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV.

Women who are raped by their partners are likely to suffer severe psychological consequences as well. Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress.

Immunization of Marital Rape from criminalizing it as an offence

The common law origins of marital rape immunity can be traced to the writing of 18th Century English jurist Sir Matthew Hale. In 1736 his highly acclaimed treatise[5], maintained that 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. No prior English common law articulated this standard, but Hale's new rule found broad support among parliamentarians and subsequently influenced legal developments in the British colonies and in the United States. Nearly every state legislature enacted laws that shielded husbands from criminal punishment for raping their wives.

Conceptually and legally, wives' sexuality and sexual independence came within the ambit of property rights conferred to husbands. This common law standard established throughout the United States. As the Supreme court of Alabama claimed, it 'was a grave breach of marital duty' for wives to refuse intercourse with their husbands. [6]

In 1869, John Stuart Mill had observed that marital rape is never welcome to women for it represents a surrender of dignity so absolute in nature, that it lowers the stature of the wife beneath that of a slave.[7] The basic premise for this assumption lies in the fiction that the wife is considered to have given her irrevocable consent to sexual intercourse to the husband at the time of the marriage and hence the husband cannot be held guilty of rape, which he may commit upon his wife.

The tenets of the marital rape exemption were based on the notion of 'irrevocable implied consent'[8] . Therefore for centuries, courts have refused to recognize marital rape as a crime for which wives deserved any relief or safe harbor. That is, women lacked any right to refuse sexual intercourse and their consent was irrelevant.

Present legal position of Marital Rape in other countries

In United States researchers estimate that 10% to 14% of married women experience rape in marriage. When researchers examined the prevalence of different types of rape, they found that marital rape accounts for approximately 25% of all rapes. Till recently, the general rule was that a husband could not be convicted of the offence of raping his wife as he is entitled to have sexual intercourse with his wife, which is implied under the contract of marriage.

In 1993, marital rape became a crime in all fifty States, under at least one section of the sexual offence codes. The existence of some spousal exemptions in the majority of States indicates that rape in marriage is still treated as a lesser crime than other forms of rape.

In England, earlier as a general rule, a man could not have been held to be guilty of rape upon his wife, for the wife is in general unable to retract the consent to sexual intercourse, which is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in 1991. The House of Lords held in R. v. R.[9] that the rule that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse against her will was an anachronistic and offensive common-law fiction, which no longer represented the position of a wife in present-day society, and that it should no longer be applied.

Corresponding amendments to the statutory law was made through Section 147 of the Criminal Justice and Public Order Act, 1994. This judgment was also affirmed by the European Court of Human Rights in the decision of SW v. UK.[10]

In Australia a person can apply to a judge or magistrate for an order allowing him/her to marry if he/she has reached the age of 16 years. However, by 1991 every state in Australia had abolished the marital rape exception.[11]
In New Zealand, a person under 20 years of age but over 16 years old can only marry with parental consent. The age of sexual consent for women is also 16 years.[12] There is no exception for marital rape in the Crimes Act, 1961 of New Zealand. It was abolished in 1985.[13]

India's Current Stance On Marital Rape

In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played an active role in recognizing it as an offence, in India, the judiciary seems to be operating at cross-purposes. Women who experience and wish to challenge sexual violence from their husbands are currently denied State protection as the Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption.

Section 375 of IPC, echoes very archaic sentiments, mentioned as its exception clause- Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.[14]

Section 376 of IPC provides punishment for rape where the rapist should be punished with imprisonment of not less than 7 years to life or for a term of 10 years and shall also be liable to fine unless the woman raped is his own wife who is under 12 years of age, in which case, he shall be punished with imprisonment of 2 years with fine or with both.

Thus no laws explicitly prohibit a man from raping his legally wedded wife except in the following conditions:

1. Sexual intercourse or sexual acts by a man with his own wife, the wife being under 15 years of age [15]
2. Sexual intercourse by the husband upon his wife during a period of separation.[16]

Even the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its 51st session, titled 'The elimination of violence against women', recommended that marital rape should be criminalized.

The Law Commission of India in its 172nd Report considered the issue of marital rape but chose to ignore the voices that demanded the deletion of Exception 2 to Section 375 IPC on the ground that 'it may lead to excessive interference with marital relationship' and may destroy the institution of marriage.[17]

Indian Constitutional Guarantee And Exceptional Clause of Penal Statute with regards to Marital Rape

Section 375 of the IPC is probably the only provision that in itself discriminates between two groups of the same sex; married women and unmarried women. One part protects all women from sexual violence but at the same time permits marital rape of a married woman by her husband.

This discrimination is in violation of Article 14 of the Constitution of India. Through various judgments of the Supreme Court, it is now clear that right to life under Article 21 of the Constitution includes right to privacy, sanctity of females and to make choices relating to sexual activity.

Marital rape is also a violation of the fundamental right of a woman specifically under Articles 14 and 21 of the Constitution of India but the lack of criminalization of marital rape infringes on the fundamental rights of a woman. Even though this crime of marital rape occurs within the private sphere of a marriage, it is the responsibility of the State to penetrate through this private sphere. If the State does not penetrate this private sphere, then a woman is left without remedy when raped by her husband.

Right to Equality and Non-discrimination

Article 14 of the constitution grants equality before law and the equal protection of law. There have been many instances where persons who have approached the court in order to realise their rights under Article 14 but the situation has not been so in cases of instances of criminalizing Marital rape.

However, while analysing the case of Navtej Singh Johar v. Union of India[18], Justice Chandrachud makes some important remarks about the public/private divide in constitutionalism: this is because, in order to engage in a stereotype-based analysis of the adultery provision, one must necessarily apply constitutional norms to and within the family structure, normally thought of as part of the private sphere.

This leads him to make the following important observation:

'It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as public or private.... While there has been a considerable degree of reform in the formal legal system, there is an aspect of women's lives where their subordination has historically been considered beyond reproach or remedy.

That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence  Constitutional protections and freedoms permeate every aspect of a citizen's life  the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny.'

Right to live with dignity

In Francis Corale v. Union Territory of Delhi[19] for the Court emphasized on the concept of the right to live with human dignity to be intrinsic of Right to Life under Article 21 and all that comes along with it, namely, the fundamental necessities required for living such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings.

The Supreme Court has held in a plethora of cases that the offence of rape violates the right to life and the right to live with human dignity of the victim of the crime of rape. In The Chairman, Railway Board v. Chandrima Das[20], the Apex Court went as far as to observe that rape is not merely an offence under the Indian Penal Code, but is a crime against the entire society at large. In Bodhisattwa Gautam v. Subhra Chakraborty[21], the court observed that more than rape being a sexual offence it is an act of aggression which aims at degrading, humiliating and mortifying the women at large.

Thus any law which gives the right to the husband to force himself upon his wife without her consent is a gross violation of the constitutional right of a woman to live with dignity.

Right To Sexual Privacy

Recently, the apex court has accepted Right to Privacy to be an intrinsic part of Fundamental Rights under Article 21. The court in Justice K.S. Puttaswamy v. Union of India[22], overruled the decisions of M.P. Sharma and Kharak Singh[23] and made it clear that the right to privacy is a fundamental right and it will not lose its status amongst the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty).

An important aspect of the right to privacy includes gender priority which implies not only the prevention of the incorrect portrayal of private life but the right to stop it from being represented at all. A woman of easy virtue is also entitled to privacy and no one has the right to invade her privacy. Every female has the basic right to be treated with decency and proper dignity.[24] Thus, by not recognising marital rape as a crime violates the law of privacy of a woman and thereby infringes her much cherished fundamental right.

Right to Health

Right to Good Health is an important aspect of Fundamental Rights as contained in Article 21 of the Indian Constitution.[25] Good health includes the physical and mental well being of an individual. Every individual is entitled to a peaceful and healthy lifestyle. The effect of decriminalization of marital rape is a violation of this fundamental right as it degrades the physical and mental well being of a woman and causes serious psychological and physical harm on the behest of her husband.

Also, forceful sexual intercourse accompanied by severe assault and battering can have a disastrous effect on a woman's physical and mental health and also cause various STDs. Therefore, exempting marital non-consensual intercourse from the definition of rape is a gross violation of her fundamental right to good health.

India's Judicial Stand on Marital Rape

Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Emperor v. Shahu Mehrab[26] , the husband was convicted under section 304A Indian Penal Code for causing death of his child-wife by rash or negligent act of sexual intercourse with her.

In Saretha v. T. Venkata Subbaih[27] , the Andhra Pradesh High Court held: 'There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person'.

In the landmark case of Independent Thought v. Union of India[28], the SC has taken a major step to protect the girl child by criminalizing the sexual intercourse with a wife below 18 years as it is discriminatory and violates the fundamental rights of the Constitution of India.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence. Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband.[29] However, the same doesn't entirely protect the women from the crime and give her protection and justice in this regard. The whole legal system relating to rape is in a mess, replete with paradoxes and major legal lacunae come in the way of empowering women against marital rape.

Very recently, the Gujarat High Court in its recent judgment on Nimesh Bhai Bharatbhai Desai v. State of Gujarat[30], while examining the law relating to sexual offences observed that husbands need to be reminded that marriage is not a license to forcibly rape their wives. Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.

However, in a separate case, the High Court of Delhi dismissed the petition to criminalize marital rape, maintaining that the drafting of the law is the function of the legislature rather than the court, while the court is more concerned with the interpretation of the law than its drafting. This reasoning is unfortunate, especially in view of the Supreme Court's unequivocal verdict in the case of State of Maharashtra v. Madhukar Narayan[31] that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished.

Suggestions and Conclusion
The NHFS-4 reports that 31% of married women have been subjugated to physical, sexual and emotional violence at the hands of their spouse in 2015-16.[32] Marital rape should be criminalized in India, and this can be achieved by applying an individualistic approach to violence against women. NGO's have succeeded to achieve public awareness and to pass legislation on domestic violence, but marital rape has not been fully criminalized by abolishing the distinction between marital rape and stranger rape.

Marital rape will never be criminalized until legislators and the society acknowledge women's individual rights within the marriage. In the era of legal reforms and revolutions, it is of utmost importance to take steps towards criminalizing marital rape so that we can move a step forward towards the road of progress in real sense. In a country like India, such reform is far from the reality as neither the lawmakers of this country nor the Indian judicial systems are prepared to bridge the gap between marital rape and rape as they are both heinous crimes which could scar the victim for life.

End-Notes:

1. State v. Oliver, 70 N.C. 60, 62 (1874)
2. Indiana Coalition Against Sexual Assault, Marital Rape available at https://www.rainn.org/pdf-files-ad-other-documents/Public-Policy/Issues/Marital_Rape ( Last Visited August 29, 2020)
3. Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.
4. Matt Pearce, No Prison Time for Indiana Man Convicted of Drugging, Raping Wife, L.A. TIMES May 19, 2014, available at https://www.latimes.com/nation/nationnow/la-na-nn-indianapolis-rape-sentence-20140519-story.html (last visited August 30, 2020)
5. Sir Matthew Hale, History of the Pleas of the Crown, 1736-629 (London Professional Books, 1972)
6. Anonymous, 206 Ala. 295, 299 (1921)
7. Maria H. Morales (ed.), J.S. Mill: The Subjection of Women 33 (Rowman & Littlefield Publishers, New York, 1988)
8. Anne Dailey, To Have and To Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. L. Rev. 1255 (1986)
9. R v R (1992) 1 AC 599
10. (1995) ECHR 52
11. The Australia Marriage Act, 1961 with amendments up to act No. 46 of 2006, Part II, 11
12. New Zealand Marriage Act 1955 (Act 92 of 1955), Section 17
13. New Zealand Crimes Act 1961 (Act 43 of 1961), Section 128, Clause 4
14. Section 375 of the Indian Penal Code (45 of 1860), Exception
15. Section 375 of the Indian Penal Code, (45 of 1860)
16. Section 376 B of the Indian Penal Code,(45 of 1860)
17. Law Commission of India, 172nd Report on Review of Rape Laws (March, 2000)
18. (2018) 10 SCALE 386
19. AIR 1981 SC 802
20. AIR 2000 SC 988
21. AIR 1196 SC 922
22. (2017) 10 SCC 1
23. MP Sharma v. Satish Chandra, AIR 1954 SC 300; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
24. State of Maharashtra v. Madhkar Narayan, AIR 1991 SC 207
25. CESC Ltd. v. Subhash Chandra, (1992) 1 SCC 441
26. AIR 1917 Sind 42
27. AIR 1983 AP 356
28. (2017) 10 SCC 800
29. The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), Section 3 Exp.1 (ii)
30. 2018 SCC OnLineGuj 732
31. AIR 1991 SC 207
32. Rinchen Norbu Wangchuk, Survey Takes Veil Off Marital Rape in India: Its Time We Had a Serious Discussion, The Better India, March 16,2018, available at https://www thebetterindia .com /134673/ survey-nfhs-marital-rape-india/ (Last Visited on September 2, 2020)