Need For Criminalization of Marital Rape

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” When a stranger does it, he doesn't know me, I don't know him. He's not doing it to me as a person, personally. With your husband, it becomes personal. You say, this man knows me. He knows my feelings. He knows me intimately, and then to do this to me - it's such a personal abuse.” (Finkelhor & Yllo, 1985)

Not much to my surprise, The Narendra Modi government`s reaction to the criminalization of marital rape put forward in the case RIT Foundation vs. Union of India stands as something which would "destabilize the institution of marriage" and could also become an easy tool for women to "harass their husbands". It is difficult to understand how the rape of a woman by her husband is any less brutal than triple talaq or polygamy, which the present government seems to be more conscious of.

Marital rape is the act of forcing your spouse into having sex without proper consent for the same.  Marital rape has been impeached in approximately 106 countries but unfortunately, India is one of the 36 countries where marital rape is still not criminalized and is untouched by the lawmakers due to the patriarchal approach that our people still hold.  Rape laws in India continue with the parochial mindset of considering women to be the property of men post marriage with no autonomy or agency over their bodies. It denies married women equal protection of the laws guaranteed by the Indian constitution. It fails to understand that a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.  A married woman has the same right to control her own body as does an unmarried woman.

Having regard to the position of law prevailing as on date in this country, any wife above the age of 18 years has no right to initiate proceedings against her lawfully wedded husband for the offence of rape as the exception 2 to Section 375 specifically lays down that sexual intercourse of man with his own wife, the wife not being under eighteen years ( Independent Thought v. UOI) of age is not rape, thus ruling out the possibility of marital rape when the age of wife is above eighteen years. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception. But our courts have failed to provide proper consideration to such petitions due to three main reasons: One, wouldn’t the law be put to rampant misuse by vengeful estranged wives? Two, how can one prove in a court of law that the intercourse between the wife and husband was indeed forced? And three, why do we need a law against marital rape when the Domestic Violence Act includes sexual abuse?

I will try to answer each and every question to provide a better understanding of the same. Firstly, thinking that a law against marital rape will be misused is based on an overwhelming feeling that vengeful wives are waiting for an opportunity to send their husbands to jail. It is true that there will definitely be a number of false cases for which we need a better implementation, so that not only do we reduce the number of false cases, but more importantly, we do not fail the real victims, and let the real rapists walk free. Secondly, that something is difficult to prove cannot be an argument to ignore a crime. A crime which is difficult to prove still remains a crime.  Yes, there is some difficulty in the criminal jurisprudence but there are certain factors like history of physical violence, a result of rape - kit and medical examination of the wife, witness testimony and possible admission of the husband in electronic communication, could be ample evidence that we can rely on. Lastly, the Domestic Violence Act is a civil law and only provides for the protection and monetary compensation to the victim. It does not address the question of criminal violence and does not provide justice to a victim of rape.

Coming back to the point, In a survey which was conducted by International Centre for Research on Women (2011) it has been found that nearly 20% of Indian men reported at least once having carried out an act of sexual violence against a female partner. In another study by National Health and Family Survey (NFHS-4) for the year 2015-16,  around 5.6% women have been reported as victims under the category of “physically forced her to have sexual intercourse with him even when she did not want to”. It is pertinent to mention that after effects of Jyoti Singh gang rape led to the constitution of Justice Verma Committee, with an objective to strengthen the anti-rape laws in the country. The Committee strongly recommended that the exception for marital rape must be removed. The Committee also added that: “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.” In 2015 a woman was raped and assaulted by her own husband to the degree that she had to be hospitalized to treat the injuries, but her husband was never prosecuted for the same. She then filed a petition before the Supreme Court of India who dismissed it. The reason stated by the court for the dismissal was that the law can`t be changed for the experience of one individual.

Whereas wife rape as we shall see is not rare, it is just rarely discussed. It isn`t the story of one woman, it`s the story buried in the floors of almost every woman`s house. Women in India are caged, their freedom is sacrificed every time they are silenced but are people so spiteful to silence their consent? Still, a lot of women know nothing beyond their household, all they know are the problems and pain suffered by them within the cold walls. They doubt their worthiness as all they have ever seen themselves as is an ‘object'. From the very beginning, they are taught to abide by whatever their husbands ask them to do even if it takes for them to kill what they want. 

But my question is why are women obligated to respect someone who can`t even respect their consent. Why are men allowed to touch their bodies like they possess it? Through this petition, I wish to criminalize Marital Rape in India. I will fight till the end and I hope every individual who feels that a rapist remains a rapist regardless of the relationship he shares with the victim, will fight with me too.

A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist. Help women to attain justice, help stop marital rape in India.