ResearchPDF Available

MARITAL RAPE: WHETHER MARRIAGE IS A LICENSE TO RAPE?

Authors:
  • ICFAI University, Raipur

Abstract

Through this paper I am going to highlight the negative impact of law on wife for not considering marital rape under section 375 of IPC and its suggestions.
TITLE- MARITAL RAPE: WHETHER MARRIAGE IS A LICENSE TO RAPE?
MRS. PYALI CHATTERJEE
ASSISTANT PROFESSOR
DISHA LAW COLLEGE
ADDRESS-- C/o. Mukesh Ranjan, F2
Maruti Residency, Amlidy
Raipur, C.G, 492006
pyali.chatterjee@gmail.com
7489371981
ABSTRACT
Section 375 of Indian Penal Code defines Rape, “A man is said to commit "rape" if he—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
c. manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any of body of such woman or makes her to do so with him or
any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person,
Under the circumstances falling under any of the following seven descriptions:—
1
First. — Against her will.
Secondly.—without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person
in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome Substance, she is unable to understand the nature
and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—when she is unable to communicate consent.
Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by
the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape.
So, from definition we find that, men will be guilty of rape, if he does any of the acts
mentioned in Section 375 of IPC without taking consent of a woman. Marital Rape is not
considered as a crime in India. Consent of wife is not required by her husband in case if her
age is more than 15 years. It means that, forced sexual intercourse by her husband is a legal
right of a husband. But law is silent about the 1) legal right and remedy of a wife, 2) about
her free consent for sexual intercourse with her husband, 3) mental or physical trauma of a
2
wife who suffered from such kinds of act within four walls of bedroom. Whether a married
woman is not a human being? Even animals also take consent from their partners before
sexual inter course. Then, why we human don’t respect our partner feeling?
Through this paper I am going to highlight the negative impact of law on wife for not
considering marital rape under section 375 of IPC and its suggestions.
KEYWORDS: - Rape, Domestic violence, Assault, Marital Rape
INTRODUCTION
According to Oxford Dictionaries, Rape means “the crime, typically committed by a man, of
forcing another person to have sexual intercourse with the offender against their will”1
According to Cambridge Dictionaries, Rape means “to force someone to have sex when they
are unwilling, using violence or threatening behavior”2
Thus, from the above definition we find that Rape means when one forced other person to
have sexual intercourse without taking consent of the person.
In every country including India, Rape is considered to be a heinous crime against women.
Recently in India, the number of crime cases against women has been increased as per the
data released by National Crime Records Bureau3. In every two minute one cases of crime
against women is reported in India. According to the report of NCRB, 2.24 million cases of
crimes against women have been registered in past decade. Crime which is reported includes
both physical and mental torture.
In 21st century, when we! speak about the equal rights and position of women in society and
women empowerment etc but one thing which always put question on the effort of the
Government is the rise of crime against women and even though, we had a strong law for the
protection of women, but still we are lacking behind to control such crime against women.
Now one thing which strike my mind, is that though we had strong law for the protection of
women but still the crime against women is rising year by year with some heinous gruesome
story in it like Delhi Gang Rape Case in 20124, recent Nirbhaya like rape case of 30 years old
1 http://www.oxforddictionaries.com/definition/english/rape
2 http://dictionary.cambridge.org/dictionary/english/rape
3 Chaitanya Mallapur, Crimes against women reported every two minutes in India, Scroll.in, (5th Sep, 2015,
9.30 pm), http://scroll.in/article/753496/crimes-against-women-reported-every-two-minutes-in-india
4 See. Delhi Gang rape Victims Friend Relives The-Horrifying 84 Minutes Of December 16 Night, for details
of the incident, http://indiatoday.intoday.in/story/delhi-gangrape-victims-friend-relives-the-horrifying-84-
3
lady in Kerala5. These incidents shows that law of our land fails to protect the women of our
country.
Now questions which comes to my mind again is that and off course one of the motive of this
research is that, 1) what about the Cases of Marital Rape as it is not considered as crime in
India under section 375 of IPC?
2) Is marriage is a license to rape your wife?
Through this research I will try to find out the answer of the above question and will also
discuss about the plight of the women in India when question comes about their dignified life.
MARITAL RAPE
Marital Rape means where the both the persons are legally wedded and the wife is forced by
her husband to do sexual intercourse. It is not crime in India.
India is a country where marriage is considered to be as SAMSKARA6 and also one of the
most important and basics aspects of Hindu Social System. And also it is advised in ancient
legal history that it is the duty of the husband and wife not to disclose anything about their
relationship beyond the four wall boundary of their bedroom. After Hindu Marriage Act,
1955 some changes has been made and included where wife and husband can make
complaint against their grievance in the court of Law. But nothing has been discussed about
the marital rape in Ancient India as well as in Modern India. The plight of the wife in India is
very much miserable in cases of Marital Rape due to absence of Law. And this topic is such
which no one wants to discuss with other, so the actual data of marital rape is not available.
But during my research when I discussed this topic with my women colleagues, house maids,
other female staff of my work place I found that every women had faced involuntary sexual
Intercourse with their Husband. Now question is whether in such Case Husband should be
guilty of rape as there wife had not given consent for intercourse. My answer is no. As it is
not necessary that every day both husband and wife should be in same mood to have sexual
desire, some time may be any one of them may not be in the mood of the sex but still if any
minutes-of-december-16-night/1/309573.html
5 Vivek Surendran, All you need to know about the brutal Nirbhaya-like rape case of Kerala, Indiatoday.in,
http://indiatoday.intoday.in/story/nirbhaya-kerala-rape-perumbavoor-dalit-law-graduate-
instestines/1/657715.html
6 Justice M. Rama Jois, Legal and Constitutional History of India,247, Universal Law Publishing Co.,(7 th ed,
2010)
4
one partner surrender to other unwillingly so that not to hurt other feeling that feeling or sex
should not be compared and considered as Marital Rape.
But in a relationship between husband and wife which is not a healthy relationship and where
every day husband is abusing his wife both physically and mentally, ill treating her in such
cases if he used physical force and become violent in refusal of his wife for sexual
intercourse in that case it should be considered as crime and such person should be guilty of
Marital Rape. Because, Marital Rape is violation of Right given by Article 21 to Women i.e.
Right to dignity, as well as both physically and mentally it disturbed the women which is not
good for her health.
REASON FOR NOT INCLUDING MARITAL RAPE AS CRIME
India is a patriarchal society where law reform is very tough, when question comes about the
right of women whether it is Right to Abortion for all women or Marital Rape.
Article 14 speaks about Equality for before LawThe State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India”.7 But
when this Article should be applied for the protection of the women right, Indian Judiciary
and Government fail to perform its function by giving the so called excuse of Marriage is a
sacrament and Indian society is a patriarchal society.
Even after the Delhi Gang rape case, Justice J. S. Verma Committee while reviewing the
existing Rape Law suggested to include Marital Rape also as crime under section 3758 0f
IPC. But Government of India did not include Marital Rape as crime under Section 375.
Thus, Indian law gives license to husband to commit rape with his wife. And if any women
file complaint against her husband then in that case she alone had to struggle for her right and
at the end of her case the Court will give judgment that “it was not possible to order a change
in the law for one person.”9
In many research it has been proved and found that women in India whether she is literate or
not is subject to marital Rape. In one of the survey conducted by National Family Health
Survey10 in the year 2005-2006, which was conducted among 124,385 women in 29 Indian
7 Mamta Rao, Constitutional Law, 100,Eastern Book Company,( 1st ed,2013)
8 K.D.Gaur, Textbook On The Indian Penal Code,642, Universal Law Publishing Co. Pvt.Ltd,(4th.ed., 2009)
9 India marital rape victims' lonely battle for justice, BBC NEWS, http://www.bbc.com/news/world-asia-india-
32810834
10 Id.
5
states, found that 10% of the women reported that their husbands had physically forced them
to have sex. In another study conducted by the International Centre for Women (ICRW) and
United Nations Population Fund's (UNPFA) across seven states in India covered 9,205 men
and 3,158 women aged 18-49 from each state in which One-third of the men interviewed
admitted to having forced a sexual act on their wives.11
Even after having such a strong data and research report Indian Government is not
considering the plight of the women just because of the losing of his power in Patriarchal
Society.
"For generations, women have been given in marriage. Once married she is viewed as
property that belongs to her husband and his family. A woman's right to her body is not
recognized," says Ranjana Kumari of the Centre for Social Research.12
Marital rape is considered as a criminal offence in about 52 countries, including the United
States, the United Kingdom, Canada, France and neighbouring Bhutan.
According to Advocate Vrinda Grover, "Whenever there is a movement to increase a
woman's access to justice, people who are afraid of women being empowered start talking
about the misuse of law."13
According to Frederika Meijer, UNFPA representative14"When women experience coercion
and violence within relationships, it violates their fundamental right to live in safety, security
and with dignity. An intimate relationship, particularly marriage, should be a space of mutual
trust and respect."
Somewhere from this discussion we find that as India is a male dominating country, so if
Marital Rape is included as Crime under section 375 of IPC then in that case , male will lose
their power over women, which they don’t want and that is the only reason for not including
Marital Rape as crime.
Right to live with Dignity, are basic Human Rights of every human being irrespective of their
sex both in India as well as in International Human Rights Law. And nobody has the right to
11 Id.
12 Poulomi Banerjee, When no is not an option: Marital rape denies right over her body, Hindustan Times,(
May 25th May, 2015 ,1:40 am), http://www.hindustantimes.com/india/when-no-is-not-an-option-marital-rape-
denies-right-over-her-body/story-MJ3OIHpn9mtVfC3AXbbWOP.html
13 Id.
14 Id.
6
curtail this right on the basis of sex, race, religion etc. But unfortunately repeatedly, Indian
Government and Judiciary had failed to protect this right for women when question come of
Marital Rape?
INTERPRETAION OF SECTION 375 0F IPC
Section 375 of Indian Penal Code defines Rape, “A man is said to commit "rape" if he—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
c. manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any of body of such woman or makes her to do so with him
or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person,
under the circumstances falling under any of the following seven descriptions:—
First. — Against her will.
Secondly.—without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person
in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome Substance, she is unable to understand the nature and
consequences of that to which she gives consent.
7
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—when she is unable to communicate consent.
Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by
the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape.”15
Under section 375 of IPC a husband will be guilty of rape only if his wife is below 15 years
or 15 years. And if the married lady is a major person i.e. 18 years and above, then there is no
law for her protection. Is this a kind of mockery? Then in that case, rape committed with a
minor girl only should be considered as crime under section 375 of IPC and not with a major
person.
This is a clear picture of biasness of law. Because, when questions comes for criminalizing
Marital Rape under Section 375, in one side husband will be guilty of rape if his wife is
below 15 years or 15 years old and in other side there is no law for the protection of the wife
if she is 15 years above.
Another important point which is to be highlight here is that, as we know that under section
375 there is no concept of Marital Rape. But when we read Exception 2 of Section 375 which
says that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape”16, this exception clearly speaks about the Marital Rape
as here the both the persons were legally married.
So, Indian law may didn’t recognized Marital Rape as a crime but this Exception.2 of 375
speaks and consider Marital Rape as offence under 375 of IPC but with a limitation.
15 Universal Criminal Manual, 547, Universal publishing house Pvt. Ltd, ISBN: 9788175349193.
16 Id.
8
SUGGESTION AND CONCLUSION
From the beginning women are fighting for their rights. Even after such a long time with
modernization, still Indian Society failed to consider the right of the married women entirely
when question comes about her Dignity.
Law is not silent regarding the protection of women in India but it is silent when question
comes before it for the protection of women?
Whether Rape is committed by her husband or an unknown the pain of the women is not less
in none of the case as in both the cases she has to face the same agony. Then why such pain is
not reachable in the ear of our Government or we can say that Government of India is waiting
for another Nirbhaya where this time girl will be a married one and the offender will be her
Husband. If this the fate of the Indian women then God only knows when the day will come
and who will be the lucky victim whose name will be written in Golden letter in the history of
India for sacrificing her life to bring Marital Rape as a punishable offence under Section 375
of IPC.
My only suggestion is that this is the high time to include the Marital Rape as crime under
section 375 of IPC for the protection of women and also for the sake of the society. When
mother will be healthy then only she can give birth to a healthy baby. In which future of our
country is depends.
“All involuntary sexual intercourse in marriage is not rape but all rape is involuntary sexual
intercourse”
---------- Pyali Chatterjee
REFERENCES
http://www.oxforddictionaries.com/definition/english/rape
http://dictionary.cambridge.org/dictionary/english/rape
9
Chaitanya Mallapur, Crimes against women reported every two minutes in India,
Scroll.in, (5th Sep, 2015, 9.30 pm), http://scroll.in/article/753496/crimes-against-
women-reported-every-two-minutes-in-india
See. Delhi Gang rape Victims Friend Relives The-Horrifying 84 Minutes Of
December 16 Night, for details of the incident,
http://indiatoday.intoday.in/story/delhi-gangrape-victims-friend-relives-the-
horrifying-84-minutes-of-december-16-night/1/309573.html
Vivek Surendran, All you need to know about the brutal Nirbhaya-like rape case of
Kerala, Indiatoday.in, http://indiatoday.intoday.in/story/nirbhaya-kerala-rape-
perumbavoor-dalit-law-graduate-instestines/1/657715.html
Justice M. Rama Jois, Legal and Constitutional History of India,247, Universal Law
Publishing Co.,(7th ed, 2010)
Mamta Rao, Constitutional Law, 100,Eastern Book Company,( 1st ed,2013)
K.D.Gaur, Textbook On The Indian Penal Code,642, Universal Law Publishing Co.
Pvt.Ltd,(4th.ed., 2009)
India marital rape victims' lonely battle for justice, BBC NEWS,
http://www.bbc.com/news/world-asia-india-32810834
Poulomi Banerjee, When no is not an option: Marital rape denies right over her
body, Hindustan Times,( May 25th May, 2015 ,1:40 am),
http://www.hindustantimes.com/india/when-no-is-not-an-option-marital-rape-denies-
right-over-her-body/story-MJ3OIHpn9mtVfC3AXbbWOP.html
10
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