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Updated: Jun 21, 2020

Author: Rajat Singhal

Ex-Student, B.A.LL.B., (batch of 2020) FIMT School of Law, GGIPU

Rape is the most atrocious offense committed on a woman. It's considered even worse than murder as the sufferer dies the number of deaths, despite being alive. Although it's not her fault, in each case of rape we've seen, without exception, the violated woman is discriminated against and made to feel as if it's she who was the criminal. Society appears upon the offenders with a kinder and greater lenient eye. Every woman dies within whilst she is raped.

In Indian society particularly, wonderful sanctity is connected to the wedding and the husband is supposed to be the protector of the wife. When the same person becomes the culprit of sexual violence towards the woman and also the society and the legal system don’t even acknowledge the phenomenon of occurrence of such violence, the discomfort and the predicament of the sufferer remains beyond explanation within the words.

Marital rape is a taboo subject and is rarely discussed. Yet, it affects uncountable women in the society. Marital rape occurs regardless of age, social standing, education, race, or ethnic origin. Research indicates that rape by husbands is as terrifying and degrading as rape by strangers.

What is Marital Rape?

Marital rape may be described as any undesirable sexual intercourse or penetration (vaginal, anal, or oral) acquired through force, the threat of force, or while the spouse doesn’t consent. Marital rape takes place while one partner has non-consensual sexual intercourse with another or when the consent is extorted through threats or the worry of bodily harm. The offense of marital rape is considered one of the foremost gruesome and barbarous crimes perpetrated against women. Marital rape is taken into account as a form of domestic violence and sexual abuse. Marital rape is more broadly experienced with the aid of women, although not exclusively.

Kinds of Marital Rape: -

Marital rape is commonly sub-divided into three categories: those rapes which contain a degree of violence, those who use sufficient force to regulate the sufferer recognized as ‘force-only’ rapes, and sadistic rapes.

  1. Violent rape occurs, as the name suggests, whilst the abuser makes use of enough bodily violence to cause damage to the sufferer, aside from any injuries due to the rape itself, i.e. injuries to the genital area or breasts. Examples would include the husband punching his spouse or injuring her with a knife. Many abusers will pressure their wives to publish sexual acts after a bodily assault, either to prove her forgiveness or to besides intimidate and humiliate her - and if the spouse has to refuse such an act, even the hazard of further violence (or a preceding experience!) will soon ensure her compliance. Battering rapes within which the husband rapes and simultaneously batters his spouse additionally comes within this ambit.

  2. 'Force-only' rape is normally understood to incorporate only sufficient pressure used on the part of the abuser to regulate or keep his spouse in position, e.g., holding down the sufferer by her hands or wrists to stop her defending herself or escaping. In most cases of 'Pressure-only' rape, coercion performs a huge part. The sufferer may also be so confused and numbed through steady emotional abuse, that she sincerely doesn’t know the way to act or react when intercourse is forced on her.

  3. Sadistic rape is from time to time additionally present. This tends to indicate that in addition to the rape itself, the sufferer is either forced to comply with or go through deeds designed to besides humiliate her. Samples of this may be the abuser/rapist urinating at the sufferer, performing out a myth of torturer, or the use of other objects during a rape. Sadistic rape may additionally or may not involve further violence. Some people consider buggery as a sadistic kind of rape because it impacts the sufferer is often especially humiliating. Pornography is frequently involved during this kind of rape. It is also referred to as Obsessive rape.

Causes and Effects of Marital Rape: -

One of the fundamental reasons for marital rape is that in an exceedingly male dominant relationship many husbands use sexual violence as the way to showcase dominance and male power. Another important aspect for raping an unwilling pair-bonded mate is likewise a 'male tactic of sperm competition' which may be a result of sexual jealousy of a person as a woman's sexual un-receptivity may advise to him that she has consensual intercourse with another. Also, abusive men with records of alcohol or drug problems are apt to abuse their spouses sexually when drunk or sober. It’s imperative to say at this point that the long-run outcomes of marital rape consist of negative feelings toward men; low self-esteem; feeling of fear, anxiety, guilt, embarrassment and outrage; changes in behaviors, consisting of a boom in drinking and a refusal to think about remarriage; and depressions.

Position of Laws in India: -

Though we’ve got advanced in every viable field, marital rape isn’t taken into consideration as an offense in India. Despite amendments, law commissions, and new legislation, one among the foremost humiliating and debilitating acts isn’t an offense in India. A glance at the alternatives a woman has to protect herself in marriage, tells us that the legislation are either non-existent or obscure and everything has just trusted on the interpretation by Courts.

Section 375[1], the provision of rape within the Indian Penal Code (IPC), has echoing very archaic sentiments, noted as its exception clause- “Sexual intercourse by man with his spouse, the wife not being below 15 years old, isn’t always rape.”Section 376 of IPC gives punishment for rape. In step with the section, the rapist needs to be punished with imprisonment of either description for a time period which shall not be much less than 7 years but which may extend to life or for a time period extending up to 10 years and shall also be accountable to fine unless the woman raped is his wife, and isn’t underneath 12 years old, within which case, he will be punished with imprisonment of either description for a time period which may extend to 2 years with fine or with both. This section in addressing sexual assault, in a slender purview lays down that, an offense of rape within marital bonds stands on condition that the wife is much less than 12 years old if she is between 12 to 15 years, an offense is committed, however, much less serious, attracting milder punishment. Once, the age crosses 15, there may be no legal protection accorded to the spouse, in direct contravention of human rights regulations. How can the same law offer for the legal age of consent for marriage to be 18 while protecting form sexual offense, simplest those as much as the age of 15?

As consistent with the Indian Penal Code, the instances in which the husband will be criminally prosecuted for an offense of marital rape are as under:

1. When the spouse is between 12 – 15 years old, offense punishable with imprisonment up to 2 years or fine, or both;

2. When the spouse is beneath 12 years old, offense punishable with imprisonment of either description for a time period which shall not be less than 7 years however which may extend to life or for a time period extending up to 10 years and shall even be susceptible to fine.

3. Rape of a judicially separated spouse, an offense punishable with imprisonment up to 2 years and fine;

4. The rape of a spouse of above 15 years in age isn’t punishable.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which even though didn’t consider marital rape as a crime, did consider it a kind of domestic violence.

Under this Act, if a woman has undergone marital rape, she will visit the court and acquire judicial separation from her husband. This can be only piecemeal legislation and much more needs to be carried out by way of the Parliament in relevancy marital rape. The Indian Penal Code has forbidden this kind of rape in a piecemeal manner. Various provisions of the IPC referring to sexuality reinforce no longer only Victorian morality but additionally the non-organization of women. Thus, it’s visible that the law which is taken into account as the savior of the victimized is insufficient and inadequate to safeguard the pursuits of those troubled with the ill of marital rape. The fundamental argument which is advanced in favor of those so-called `laws’ is that consent to marry in itself incorporates a consent to engage in sexual activity. But, an implied consent to engage in sexual activity doesn’t mean consent to being inflicted with sexual violence. The problem is that it’s been widely wide-spread that a marital relationship is practically sacrosanct. Instead of, making the spouse worships the husband’s every whim, especially sexual, it’s imagined to thrive mutual respect and trust. It’s a whole lot more traumatic being a sufferer of rape by someone known, a family member, and worse to possess to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to safeguard her from any abuse?

Conclusion: -

Marital rape is certainly a serious crime and those women who have experienced this sort of rape are in dire need of better assistance, both by the law and the society. Sufferers undergo lots of emotional and behavioral reactions, a number of which are quite severe. It is also clear that rape through one’s husband results in even worse effects than "only" being battered. In each comparison done, the raped and battered women demonstrated greater excessive reactions than some other battered women who had no longer been raped. However, it had been also real that the raped women tended to have experienced the maximum severe stages of violence.

Marital rape meets the legal criteria for criminal sexual conduct but with two critical differences, previous studies have examined women’s responses to rape within an intimate relationship further as the physiological outcome of rape. For example: Why is rape in marriage so often downplayed, even though the wife-sufferers themselves?

Both pillars of humanity, male and females have equal importance and development. Among other troubles, marital rape is extremely crucial because it isn’t recognized; to date in our Indian legal system didn’t give suitable attention to this current issue. The necessity of the hour is to salvage Section 498A of the Indian Penal Code from the shackles of negative propaganda and “misuse” by the media, goaded on by men’s rights groups from the urban and privileged classes, and restore it as a feasible regulation to safeguard sufferer of every kind of domestic violence. The provisions of the civil law, Domestic Violence Act have to be linked to the criminal provision so that it will assist all affected women way more than the introduction of the to impose of marital rape.

Suggestions: -

Based on realizations and experiences while performing on this issue, the author would love to make the subsequent suggestions:

Make the young generation aware of such a gruesome act so they develop hatred towards it. Women need to come out of the social taboos and develop a pragmatic temper. It’s high time that India must recognize the necessity of criminalization of marital rape. The present legal guidelines ought to be finished away with; amended and required laws ought to be adopted. The machinery functioning to counter such acts has to make it easy for women to deal with their grievances and make available suitable relief. The judiciary should be trained and sensitized to treat women especially on such delicate issues with empathetically instead of sympathy. The guidance previously made on this issue needs to be implemented. Society has to offer a supportive shoulder to the sufferer of marital rape and act as an encouraging organ for the sufferer to build confidence and power to face the society and fight for her right and nobility. Lastly, though this might appear sound to be vague, in my opinion, this too requires a mention.

The term marital rape often conveys the concept that it’s only the woman who is at the suffering end. In today's changing world which breaths of equality of sex’s concepts need to not receive a constrained meaning however need to be assigned the widest feasible explanation? Keeping this in view marital rape should additionally be so described that the sufferer of rape involved in a marital relationship may be of either sex. It may additionally sound Utopia in a rural set up however isn’t irrelevant within the changing urban scenario. However, its miles part of any doubt that during more than the majority of the voter’s cases it’s the woman who suffers, simply as she is the "weaker sex" within the relationship.

Note: Considering length the blog and paucity of time, the author has decided not to discuss the stand of judiciary through the case laws in this Blog. The author, however intend to discuss this in another Blog.

Thanks for Reading!

[1] The section 375 of the Indian Penal Code (45 of 1860) reads: —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 isn’t 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, because 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 sixteen years of age. Explanation— Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape. Exception— Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, isn’t rape.

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