Author: Gaurav, 3rd Year B.A. LL.B., ICFAI University, Dehradun
*Author has written this article while pursuing training program on article writing by indianlegalsolution.com
Marital rape in general means a husband having sexual intercourse with his wife without her consent or by forcing and committing assault. There’s no proper definition of marital rape in India for women who are 18 years and above since it is legal in India if done with a woman whose age is 18 years and above. There have been a lot of debates in India in past years regarding the removal of the exception to the definition of rape under section 375 of the Indian Penal Code but it never got criminalized since there’s a thought prevailing in India that it would deteriorate the married life of a couple. So, in India, an ongoing married life is more important than a women’s right to life.
POSITION OF MARITAL RAPE IN INDIA
Section 375 of the Indian Penal Code exception says that sexual intercourse between a husband and wife and where the wife is not below 18 years is not considered as rape. According to this exception, it is clear that women of 18 years and below only have the right to life under article 21and right to equality under Article 14 of the Indian constitution, the woman above 18 years of age do not have these fundamental rights and they are discriminated and deprived of their fundamental rights. Whenever a woman above 18 years get married she loses her right to life and equality.
Justice Chandrachud stated: ” Does a woman or man lose their degree of sexual stated autonomy after marriage. According to me ‘no'”. He further said that ” the right to say no should be there after marriage also”. Although indirectly he said marital rape to be illegal it cannot be criminalized since they say it would destabilise the marriage and it would be an easy tool to harass the husbands. In a case Sree Kumar vs. Pearly Karun: A wife was subjected to sex without her consent when she went to live with her husband for two days since the settlement of separation procedures were going, Kerala high court held that since she was not living independently from her husband she was liable to sex with or without consent.
Justice Indu Malhotra noted in his ruling that any law that treats people of gender equality or discriminates against persons based on sexual orientation, is liable to punishment for violating Article 14 (equality) and 15 (prohibiting discrimination) of the Constitution. The time when women were not seen in the law and living in the shadows of their husbands is long gone.
INDIAN JUDICIARY VIEWS
Nimeshbhai Bharatbhai Desai v. State of Gujarat
The Court in this case considered the question: “would a man who compels his wife to indulge in oral sex be a form of rape punishable under section 376 of the IPC?”
The court’s view was that marital rape had never been a crime in our country since Parliament feared that the institution of marriage could not be established. “An unscrupulous wife can use it as a powerful tool or weapon to abuse her husband by making false and meaningless complaints against him.” However, there are protections in the criminal justice system for detecting and evaluating false or misleading marital complaints, and any person who makes false and hateful charges can be held accountable under the law. The court discussed three types of marital rape in the public sphere:
1. Rape: This is a type of marital rape in which women experience physical and sexual abuse in relationships in many ways. In some cases, a wife is beaten during a sexual assault or rape that may follow a violent episode in which the husband wants to commit and force his wife to have unwanted sex. In most cases, the victims fall under this category.
2. Forced rape only: In this type of marital rape, husbands use only the amount of power, needed to oppress their wives. In these cases, beating may not be appropriate, but women who refuse to have sex often have to deal with such attacks.
3. Extreme Rape: In extreme rapes, assaults include vicious abuse and/or degrading sexual acts and these are often violent. This type has been classified as a brutal rape. In the historic case of Vishakha v. State of Rajasthan, Supreme Court has extended this right to privacy in the workplace as well. Moreover, in the same vein, we can interpret that there is a right to privacy to engage in sexual relations even within marriage. Later on by removing the rape from the marriage, the removal of the marriage violates this privacy right of the married woman and is therefore illegal.
In Bodhisattwa Gautam court v. Subhra Chakraborty argued that minority rape was a sexual offence rather than a manifestation of hostility committed to abusing and killing women. In this way, the law of celibacy violates the partner’s right to live with human dignity. Any law that violates a woman’s right to dignity and gives her the right to drive a wife to have sex against her will is illegal.
UNITED STATES MARITAL RAPE LAWS IN COMPARISON
In the United States definition of rape is defined in the Uniform Code of Military Justice under chapter 47X, section 920, article 120 and marital rape is banned under this provision. The states have their separate marital rape law like in South Carolina within 30 days of the woman’s rape she has to report the incident to the authorities the act must involve “use or threat of use of a weapon”, “physical violence of high and aggravated nature”. In Maryland, the spouses are treated as strangers when it comes to marital rape, in Mississippi if there is forced sexual penetration it amounts to marital rape. In India also marital rape should be banned just by removing the exception to the definition of rape under section 375 of the Indian penal code thereby assuring the citizens of India their fundamental right otherwise women will always remain as their husband’s property.
Either the laws in India should criminalize marital rape or it should add an exception to articles 14 and 21 stating as women above 18 years of age are excluded and they are their husband’s property after marriage not a ‘citizen of India’.
 2018 SCC GUJ 732