The unwanted and non-consented sexual intercourse by a man with either a girl child or unmarried woman or married woman, deprives such victim from her dignity and her right over her own body.

Abstract
Rape is an offence against women, violating her dignity and self-respect. However, when it occurs within the four walls of a matrimonial house, where perpetrator is the victim’s spouse. It also reduces the woman to the status of an object or toy used merely for sexual satisfaction.

The definition of rape remains the same i.e. sexual intercourse or sexual penetration or inserting of any object / any part of body (finger) into the vagina, urethra or anus of a woman without her consent. There is a immediate need for a distinct law on Martial/ spouse rape in India. Rape within marriage gives extreme pain to the wife to the very core. Woman silently suffer through it, which psychologically and emotionally affects them. The Reason for such silence can be family reputation, maintenance of children and financial dependence on husbands.

The woman has been given the right to fight for protection when violence is caused from the outside entities, whereas when the perpetrator of her bodily integrity is her own husband such protection is withdrawn by the legislators. It is an unacceptable to a civilized society that a wife has to have sex with her husband irrespective of her consent or will. Mere criminalization of marital rape in India, will not end the problem, but it is an important step towards protecting women from sexual violence in marriage.

Marital rape – An Understanding

When someone mentions the word rape, the tendency is to think of someone who is a unknown or a stranger. Usually elderly people of our society does not think of rape in the context of marriage. Even it is hard for women to believe that a husband can rape his wife. In Indian society, Marital rape is the most common and repugnant form of masochism. As, if husband is availing is conjugal rights, than how can he be accused of rape.

It suggests that woman has no right over her own body and her will is subject to that of her husband. While the legal definition cover, Martial rape as an unwanted intercourse or penetrating penis or any kind of object into the vagina , urethra or anus or mouth of the wife, obtained by force, threat of force or when the victim is unable to consent.

Marriage is considered to be a civil contact and consent to sexual activities is thought to be the descriptive element of this contact."

Rape is derived from the term ‘rapio’ which means to seize. Therefore the forcible seizure, ravishing body of woman without her consent or will with force, fear or fraud is defined as rape. It is a act of violence or the ultimate violation of the dignity of women. In case Bodhisattva Gautam v. Subhra Chakraborty[1], the supreme court of India has described it as deathless shame and the gravest crime against human dignity.

Rape is not merely a physical assault but destruction of whole personality of a victim. The law has not yet designed a proper structure for offences committed within marriage, which destroys freedom of a woman; rather it has conceived rape as an tool for protecting a husband’s property i.e. his wife from the sexual aggressions of other men. Therefore, rape within marriage was not recognized as an offence as women was considered the property of the husband, and a person could not be identified to violate his own property.

Marital rape is particularly complicated because of the personal nature of marital relationship makes it hard for the victim to fight against her husband, which may cause shame to family in unsupportive society. The independence of women on her husband and maintaining of children with husband’ money, place women into a complex and difficult situation, which is why marital rape is one of the highly under- reported violent crime. If the victim attempt to approach the legal authorities, they undergo domestic violence at home and many woman with their children are left without food and shelter.

One of the main reason behind the silence of victim of Marital rape is the unsupportive society and family including her mother and father. In most of the rural states, when a woman is married to a man; the family of women give no further support to the girl in any sense. That means, she is still treated as a burden by most of the families in rural area. Even many people, just for money marry their daughter to a handicap person, unsound person or person with any other disabilities. How we can expect from such women as marital rape victim to raise their voices, who are already been sold to such husband by their own parents.

There are plenty of legislations and enactments in India in regard to protection of women from violence caused in her marital house such as laws against dowry, cruelty, domestic violence and female infanticide. However, the unnoticed and the most shameful wrong against women within a marriage, where a husband forces himself upon his wife thinking that the wife is his property and existence of nuptial rights to have sex with his wife either with her consent or without consent, 'Marital rape' has failed to obtain a proper recognition as a crime in the eyes of the law makers.

Women who are raped once by their husband are likely to be raped many times. They not only suffer vaginal rape, but also oral and anal rape. Husband may often rape their wife in asleep condition or use coercion, verbal threats, physical violence, or weapons to force their wives into having non-consensual sex with them. Women raped by their husbands may feel reluctant to report because of the family fame, inability to leave the relationship, secure the future of their children and unsupportive society which will utter bad of victim only. Marital rape is the worst kind of violent crime, because the victim not only experience physical abuse but also experience psychological abuse.

Marital Rape and Legislations in India

However, we have advanced in every possible field, but still marital rape is not recognized as an offence in India. Despite amendments, law commissions and new legislations, one of the most violent act is not counted as an offence. The option left with woman is to protect herself in a marital relationship, this show us that legislations have been either non-existent and all legislations are just depended on the interpretation by courts.

The Indian penal code, 1860 (IPC) in Section 375 criminalizes the offence of rape[2]. Section 375 of Indian penal code, which emerged after consultations in the select committee, is a solidified form of clause 359 of the Macaulay’s Draft Penal Code. The definition of rape, which includes both sexual intercourse and other sexual penetration such as oral sex or anal sex, covered within the definition of ‘rape’.

However, Exception 2 of section 375, states Sexual intercourse by husband with his wife, the wife being under 18 years of age, is rape[3]. The recent judgement passed in the case ‘Independent Thought v. Union of India’[4], it was held that sexual intercourse with wife below the age of 18 years constitute rape. Therefore, after the decision of Supreme Court in this case, 15 years in Exception2 of section 375 should be read as ‘18 years’.

Punishment for rape is provided under section 376 of IPC[5]. According to this section, the criminal should be punished with imprisonment of either for a term which shall not be less than seven years but which may extend to life or for a term extending up to 10 years and can also be liable to fine, unless the victim raped is his own wife, and is not under 12 years of age, in this case, he shall be punished with imprisonment of either for a term of which is upto to 2 years or fine, or both. This section dealing with sexual assault within marriage is in very narrow purview lays down that, if the wife be less then 12 years of age, if she is between 12 to 15 years of age, however, less serious attracting milder punishment.

As per the Indian penal code, 1860 the following instances wherein the husband can be held criminally liable for an offence of marital rape are:

• When, the wife as victim between 12–15 years of age, offence punishable with imprisonment upto 2 years or fine, or both.
• When, the wife as a victim is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
• When rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and fine.
• When rape of wife of above 15 years in age, is not punishable and not recognised as rape as per Indian law.

The Protection of Women from Domestic Violence act, 2005 which although did not consider marital rape as a crime, but did consider it as a form of domestic violence.[6] Under this act, if a woman has experienced marital rape, she can go to the court and obtain remedy as judicial separation from her husband.

The Indian Penal Code was amended in 1983 which included the criminalization of spousal rape during the period of judicial separation.[7] A woman can protect her right to life and liberty but not her body within a marital relationship, which sounds ironical. So, far woman take alternative of Section 498 A of the IPC, which deals with cruelty, to protect themselves against perverse sexual conduct by the husband[8].

But where is the interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within marital relationship? Isn’t consent a sin qua non? Is marital relation a license to sexual intercourse? Is there excessive demand for sex perverse? There is ‘NO’ Answer, as the judiciary has been silent so far.

42nd Law Commission report

Since subsequent to this report, Law has been amended at various intervals. The importance of this report is restricted to understanding the prism through which the Law Commission views marital rape. Two important suggestions were made in this report.[9]

It recommended that in case where the husband and wife were judicially separated, the exception clause must not apply.[10]

It also recommended the non-consensual intercourse with women aged between 12 to 15 years of age. In short, stated that the punishment for such offences must be put into a separate section and preferably not be termed as rape.[11]

In summarized form, this report highlighted the presumption of consent that works when a husband and wife live together and the difference between marital rape and other rape, where the latter is viewed as a mere serious and former as less serious. It did not however comment on whether the exception clause must be retained or to be deleted.

172nd Law Commission Report

This report was passed in March 2000 and was directly faced with the validity of the exception clause.[12] Arguments were advanced regarding the validity of the exception clause itself during the consultation rounds. It was argued that when other instances of violence by husband toward wife were punishable, then there is no reason for rape alone to be protected from the operation of law. The Law Commission rejected this argument because it feared that criminalization of marital rape would lead to ‘excessive interference within the marital relationships’.

Also, some of the following recommendations by Law Commission
‘Rape’ term should be replaced by the term ‘sexual assault’.
Sexual intercourse in Section 375 of IPC should include all forms of penetration such as vaginal/penile, penile/oral, finger/vaginal, finger/anal and object/vaginal.

Fundamental Rights Violation

1. Article 14 of the Indian Constitution:

   Article 14 guarantees a fundamental right of quality before the law and equal protection of laws to each and every citizen of India.[13] Section 375 of IPC, punishes the rape offenders and protect a woman against forceful sexual intercourse against her well or without her consent.[14] Thereby this section grants protection to women’s right of choice as autonomous individual also capable of self- expression and prosecuting rape offenders who violate bodily autonomy of a woman. Ironically, Section 375 of the IPC makes a classification/differentiation in terms of exemption that does not regard a forceful sexual intercourse as rape within the marital relationship. On the basis of a woman’s marital status, the exemption withdraws the protection of section 375 of the IPC from a marriage woman.
   
   The differential treatment of married woman rests on the assumption that a married wife is presumed to have given an irrevocable consent to sexual intercourse with her husband. The assumption further states that married woman, unlike any other person, have no right in availing protection from the State against violent and sex offenders. It is submitted that such assumption is extreme wrong and irrational. Married women also need protection of the law in their private spheres as exactly like men and unmarried women have in eyes of law makers. In short, rape committed against a married and unmarried women are not treated as same i.e both as victim of non-consented sexual intercourse, so this exception 2 of 375 violates the mandate of Article 14 of Indian Constitution.
    

2. Article 21 of Indian Constitution:

   Article 21 of the Indian constitution grants right to life and personal liberty.[15] The Supreme Court has interpreted this clause in various judgements enshrining rights which include the right to health, right to privacy, right to dignity, right to safe living conditions, and right to safe environment, among others. In recent years, court have began to acknowledge a right to abstain from unwanted sexual activities enshrined under right to life and liberty. In State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is a unlawful intervention of the right to privacy and sanctity of a female.[16] Further it held that non-consensual sexual intercourse amounts to physical and sexual violence. In the light of this expanding jurisprudence of Article 21, the doctrine of marital exemption to rape violates various rights that have emerged from Article 21.

The marital exemption to rape violated the following rights under Article 21 of the Indian Constitution:

1. Right to live with human dignity:

   Article 21 also cover the right to live with human dignity. This right recognizes the autonomy of an individual. In Suchita Srivastava v. Chandigarh Administration, The Supreme Court linked the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, bodily integrity under Article 21 of Constitution of India.[17]
    

2. Right to sexual privacy:

   This right is not mentioned in the Indian Constitution. Nevertheless, cases related to right to privacy is constitutionally protected under Article 21.[18] Such as Govind v. State of Madhya Pradesh and Kharak Singh v. State of U.P.
   
   The right to privacy under Article 21 means right to be left alone. The Supreme Court has recognized in Article 21, a right to make choices related to sexual relations. In Justice KS. Puttuswamy (Retd.) v. Union of India[19],the Supreme Court recognised the right to privacy as a fundamental right to all citizens and held that it includes decisional privacy reflected by an ability to make intimate decisions primarily embrace one’s sexual or procreative nature. So, the doctrine of marital exemption to rape violates the right to sexual privacy as married woman have not been given the right to choose with whom she want the sexual intercourse and the space when she want to be left alone.
    

3. Right to Bodily Self-Determination:

   This right is also covered under article 21.[20] It is based on a belief that the individual is the ultimate decision maker in matter related to his / her body or well- being. Consent to sex is one of the personal choice that a women have a right to decide for herself. It is a form of self expression and self-determination and if the law revoke such consent of a person leads to violation of constitutional right of bodily self determination. It is to be suggested that the marital exemption doctrine effective deprives a married woman from her right to bodily self-determination relating to intimate and personal choice as consent to sexual intercourse, and is hence unconstitutional.
    

4. Right to good health:

   This right has been also recognized under Article 21 of the Indian Constitution. The doctrine of marital exemption to rape is also a violation of right to good health of the victim (married woman) as it inevitably causing serious physical as well as psychological harm to the victim. For a healthy life, it is necessary that the person is intellectually and spiritually well. Sometimes, when without the consent of woman any intercourse is made, it not only affects mental health but also leads to transferring of sexually transmitted disease (STD) from the husband to the victim.

Conclusion
The debate of marital rape is crucial to recognize that this is a major lacuna in criminal law at present defeating the constitutional provisions related to equality and autonomy of the women. Still, woman has been continuously victimized by men and society. It is to be noted that there is a need to acknowledge her as similar to other human beings and she deserves to be respected and live her life with dignity.

As aforesaid, In India marital rape is not fully criminalized, even the continuing exemption of marital rape sustains the assumption of wife as exclusive property of the husband. The patriarchal society have deemed marriage to be a license to non-consulted sexual intercourse.

In light of all of this, we purpose a model to criminalize marital rape as a serious offence in India. First, we purpose that such marital exemption can be deleted. Second, we propose that the marital relationship between a man and woman will not be termed as defense for the accused. Third, we purpose that the punishment for marital rape to be same as that of the rape.

End-Notes:

1. AIR 1996 SC 922
2. Section 375 of the Indian penal code, 1860.
3. Exception 2 of section 375 of the Indian penal code,1860.
4. (2017) 10 SCC 800.
5. Section 376 of the Indian penal code, 1860.
6. Section 3 Explanation 1(ii) of Protection of Women from Domestic Violence Act, 2005
7. Section 376A of Indian Penal Code (45 of 1860).Intercourse by a man with his wife during separation.—Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
8. Section 498 A of the Indian penal code, 1860.
9. 42nd report of Law Commission of India on Indian Penal Code.
10. Id.
11. Id.
12. 172nd report of Law Commission of India on Review of Rape Laws, March 2000.
13. The Constitution of India, Article 14.
14. Section 375 of the Indian penal code, 1860.
15. The Constitution of India, Article 21
16. (2000) 4 SCC 75.
17. (2008) 14 SCC 989.
18. Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 , Kharak Singh v. State of U.P AIR 1963 SC 1295
19. (2017) AIR 2017 SC 4161
20. The Constitution of India, Article 21.

Written By: Usha Solanki