Is India’s Legal System Blind to Marital Rape

 

Even though we have strict laws in place for the protection of women, our legal system is still lax when it comes to marital rape. As a result, India is among the last 36 countries that have not yet criminalized this form of violence within marriage.

According to a United Nations Population Fund (UNPF) report, as many as 70 percent of married women in India between the ages of 18 and 49 are victims of beating, rape, or coerced sex. This suggests that over two-thirds of married women in this age group have experienced physical abuse or coercion for sexual acts by their husbands.

Marital rape refers to an unwanted sexual act by a man towards his wife, obtained through physical force, threat of physical force, or both, particularly when the victim is unable to give consent. Any type of penetration, whether anal, vaginal, or oral, performed against the victim’s will or without her consent, is referred to as ‘unwanted intercourse’.

Without a doubt, marital rape violates women's fundamental rights, particularly those guaranteed by Articles 14, 15, and 21 of the Indian Constitution. The constitutionality of the immunity clause for marital rape has been questioned in a number of petitions against marital rape that have been brought in the High Court recently, but the matter has not yet been settled. This suggests that legislators might not be too concerned about marital rape because they have other things on their minds.

 

What do the statistics say?,

 

According to the National Family Health Survey (NFHS), 5.6% of married women are physically forced to have sex with their husbands, while 2.7% of women are physically forced to perform sexual activities they do not want to do. Additionally, 3.7% of women are forced to have sex with their husbands through threats.

The third (2005-06) and fourth (2015-16) rounds of the NFHS reveal that the lack of legal protection against marital rape is a matter of great concern for India. Intimate partner violence against women increased from 3% to 43% in different states during this period.

In the fifth round of the NFHS conducted in 2019-20, approximately 1 in 3 married women in the age group of 18-49 in India have been victims of violence, with at least 5%-6% reporting sexual violence.

NFHS data collected until 2021 indicates that 82% of married men admit to committing sexual violence against their wives. Additionally, 13.7% of men admitted that their sexual violence was a reason for divorce.

Furthermore, a study by researchers from the Tata Institute of Social Sciences and the University of Maryland in September 2020 found that 32% of married young women in India aged 15-24 experienced unwanted sex with their husbands in the past 12 months, with 12% experiencing it frequently.

Despite deeply rooted social norms and legal complexities, enacting comprehensive marital rape laws remains crucial. Notably, in India, where only one in 69 cases of rape is reported, highlighting the lack of awareness regarding the issue of marital rape. Even the National Crime Records Bureau does not keep separate record on marital rape as it is not a crime to rape a wife. This is why, marital rape remains a largely unrecognised and underreported crime in India. 

 

Barriers Faced by Indian Law in Addressing Marital Rape,

 

The exemption of marital rape in Indian law has been a subject of much debate and controversy. Many argue that it discriminates against married women and violates their rights, leading to confusion within our legal system regarding the enactment of a law against marital rape.

Obstacles faced by our judiciary include:

Non-Recognition as a Crime: Marital rape is not officially recognized as a crime under the Indian Penal Code (IPC). Section 375 of the IPC defines the offense of rape but includes an exception (Exception 2) related to marital rape. According to this exception, sexual intercourse by a man with his own wife (provided she is not under fifteen years of age) is not considered rape.

Consent and Legal Separation: Under Section 376B of the IPC, sexual intercourse by a man with his own wife without her consent, under a decree of judicial separation, is punishable. This means that if a couple is legally separated, non-consensual intercourse by the husband can be considered rape.

Conflicting Court Rulings: Different courts in India have issued conflicting rulings on marital rape. While the Chhattisgarh High Court held that sexual intercourse by a husband with his wife cannot be rape, the Kerala High Court recognized marital rape as grounds for seeking divorce.

Supreme Court’s Stance: In a significant ruling, the Supreme Court of India acknowledged that sexual assault by a husband can constitute rape. However, this recognition is limited to the context of abortion, marking the first legal acknowledgment of marital rape in India by the Supreme Court.

Actually, the Central Government remains the biggest obstacle to declaring marital rape a crime in India. Despite numerous writ petitions filed by individuals and civil society organizations challenging the marital rape exemption in Section 375, the government continues to protect men who repeatedly rape their wives, citing the same reasons. A critical examination reveals the root causes: misogyny and misunderstandings.

In India, marriage is considered sacred within a society rooted in patriarchal traditions. Unfortunately, the idea that a husband can rape his wife often goes unrecognized, leading to a lack of understanding and acknowledgment of marital rape as a form of violence. Thus, the context of marital rape still hinges on the belief that consent to sex is ‘implicit’ in marriage, and that a wife cannot later withdraw it.

These barriers underscore the urgent need for legal reforms and societal changes to recognize and address marital rape in India.