Marital Rape – Domestic violence
Marital rape -viewed predominantly as a domestic violence issue in India, limiting survivors’ remedies to civil measures under the Protection of Women from Domestic Violence Act. Addressing this issue requires a shift in societal attitudes, legal reforms, and greater awareness about the prevalence and impact of marital rape on women’s physical and mental well-being.
Marital rape refers to the act of sexual intercourse with one’s spouse without the spouse’s consent. It is a form of domestic violence and a violation of the spouse’s autonomy and rights.
Of the 185 nations on the planet, 77 have laws that expressly make marital rape illegal, whereas 34 openly decriminalise it, effectively giving men who rape their wives immunity from prosecution.
Of the 34 nations that have decriminalised marital rape, India is one of them.
Indian law on Marital Rape
Section 375 of the Indian Penal Code, 1860 (Section 63 of Bharatiya Nyaya Sanhita, 2023) defines the acts that constitute rape by a man. But there is an exception which decriminalised the marital rape.
Exception 2 of Section 375 of the Indian Penal Code states that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape”. But in 2017 the Hon’ble Supreme Court ,in the Case Independent Thought vs. Union of India and Anr. AIR 2017 SC 4904 increased the age from 15 to 18 years.
Sexual intercourse– to constitute the offence of Rape sexual intercourse by a man with women is necessary as per Indian Penal Code,1860,India, Section.375. So here the word “man” is defined as the boy above 12 years is liable or capable to commit this crime and the boy below 12 but above 7 years of age enjoys absolute immunity in reference to the Indian Penal Code,1860,India, Section.10 . But as per new criminal law namely, Bhartiya Nyaya Sanhita,2023,India,s.2(18 which is going to come into force from 1 July, 2024 onwards, the definition of man is a male person of any age.
Historical overview
Historically, many legal systems did not recognize marital rape as a crime, viewing marriage as implied consent to sexual activity. This perspective reflected deeply entrenched patriarchal attitudes where women were seen as the property of their husbands and lacking autonomy over their bodies and sexuality. However, modern laws in many countries now recognize and criminalize marital rape, acknowledging that marriage does not revoke an individual’s right to refuse sexual contact. This recognition aims to protect the rights and bodily autonomy of all individuals, regardless of their marital status.
In India there is a commission called the National Human right commission which is a statutory body formed in 1993 under the protection of Human rights Ordinance of 28 September 1993. This body is responsible for the protection and promotion of the human rights and the fundamental rights of the women under the Protection of Human Right Act,1993,India which also includes the Right to life with dignity and Right to Equality in accordance with the Constitution of India, Article 21 and 14 respectively.
This body also handled situations in which a woman was forced into having sex by her spouse. A proposal to include marital rape in the law has been presented to the Law Commission of India, however many people feel that the provision can be abused and that society is not ready for it. But there’s no denying that the issue of marital rape is a complicated one in terms of the facts and the law. The National Family Health Survey (NFHS-5) revealed that around one in three Indian women between the ages of 18 and 49 had experienced spousal abuse, and approximately 6% had experienced sexual violence.
Legal Recognition
In recent decades, there has been a shift in attitudes and legal frameworks regarding marital rape. Many countries have enacted laws to explicitly criminalize marital rape, recognizing it as a violation of an individual’s rights to autonomy and bodily integrity.
Comparison with other Country
England
When we talk about the England, the marital Rape was considered as the impossibility within marriage but it was in the case called R. v. R (1992) 1 AC 599. in this case the House of lords (similar as the Rajya Sabha in India) had altered the position and observed that as the society is developing rapidly, the position of the women has also changed so radically that rape within the marriage has now become possible. Therefore the Lords said that the husband has to take the consent of his wife for intercourse, not by fear, force or some other compelling reason.
United State of America
In the United States, marital rape is recognized as a criminal offense, and all the 50 states have laws which protect victims and prosecute offenders.
Historically, marital rape was not considered a crime due to the outdated notion that a husband had a right to sex within marriage, regardless of his wife’s consent. But for the first time in the American history in 1978, a husband was trial for raping his wife. A national public discussion which is followed by the question whether a man has absolute sexual right to his spouse or not?
As reported and stated by M Glasgow, Marital Rape Exemption – Legal Sanction of Spouse Abuse 18 JFL 1980 p. 565-586 the case was filled before the court in the 1978 called Oregon v. Rideout . In this case the petitioner called the police on the telephoned and say that “My husband just got through beating me” and claim that her husband raped her. At that time only some state did not recognised the marital privilege such as Oregon, Delaware, and Iowa and others sate follow the common law which give the privilege of marital rape. But this was the first case in which the Husband was indicted on the charge of first degree rape according to the US law.
However, by the early 1990s, all states had removed these marital exemptions from their sexual assault and rape laws, acknowledging that rape can occur within the context of a marriage.
Current status of Marital Rape in India
The Case of Hrishikesh Sahoo v State of Karnataka SLP(Cr.) 4063-4064 of 2022 of the Hon’ble Supreme Court is pending before and it is yet to decide, if the marital rape exception to Section 376 of the IPC violates the fundamental rights of married women or not.
The main questions that were brought up in this were:
- Does a married woman’s right to equality get violated by the exception to marital rape, depriving her of the same legal remedies as single women?
- Does married women’s status in a marriage not equal that of males because of the exemption to marital rape?
- Does a wife’s right to privacy go in the way of the exemption to marital rape?
Brief of the case
The Supreme Court of India is set to decide on the constitutionality of the ‘marital rape exception’ found in Section 376 of the Indian Penal Code. This exception allows for the crime of rape to be exempted if committed by a man against his wife.
The case stems from a complaint in 2017 against Mr. Hrishikesh Sahoo, who faced multiple charges including rape and cruelty towards his wife, as well as abuse of their daughter under Protection of Children from Sexual Offences Act, 2012, India, Sub Setcion .5(M)(L),6.
Despite his plea invoking the marital rape exception, the Karnataka High Court, in February 2022, rejected his petition citing it as regressive and violative of equality. Mr. Sahoo then appealed to the Supreme Court, which issued an interim stay on the High Court’s decision in July 2022. Concurrently, the Delhi High Court had a split verdict in a similar case in May 2022, with one judge deeming the exception unconstitutional and the other upholding its legality within the context of marriage.
In late 2022, Dalit activist Ms. Ruth Manorama filed a fresh petition challenging the exception, which, along with other petitions, was slated for a hearing on March 21, 2023, before a Bench headed by Chief Justice D.Y Chandrachud and Justice P.S Narasimha.
The current status of this case is pending before the Supreme Court.
It’s important to note that domestic violence can happen to anyone, regardless of age, race, gender identity, sexual orientation, socioeconomic status, or cultural background. It can also occur in various types of relationships, including married couples, dating partners, cohabitating partners, or those in same-sex relationships.
Initiatives and Response of the Government
There are many steps taken by the government and the commission for the better implementation of the existing laws, rules, regulations and policies.
Swadhar Greh Scheme
The Swadhar Greh Scheme, led by the Ministry of Women and Child Development, aims to support women facing difficult circumstances with dignity and care. With facilities in every district, it provides shelter, food, clothing, and medical care for up to one year for victims of domestic violence, and up to three years for others. Older women can stay for five years, transitioning afterward to suitable institutions. The SWADHAR Greh (A Scheme For Women In Difficult Circumstance) also supports accompanying children, ensuring a safe environment and access to necessary resources. It focuses on emotional, legal, and economic rehabilitation, empowering women for a fresh start in life.
National Commission for Women
The Government has set up a statutory body in January 1992 called National Commission for Women (NCW) with a specific mandate to study and monitor all matters relating to the Constitutional and legal safeguards provided to women; review the existing legislations to suggest amendments wherever necessary; and to look into complaints involving deprivation of the rights of women.
NCW is getting reports about dower/atrocity instances, as well as suicides, deaths, and murders connected to dower. According to Sections 10(1)(f) and 10(1)(g) of the NCW Act, 1990, these cases are duly processed by the Commission. The Commission then refers the cases to the relevant authorities, like the police and district magistrates, with recommendations for accelerating the application of the criminal laws and bringing the guilty parties to trial in court. Nearly all state governments have also established State Commissions for Women with comparable duties in their individual states.
The National Plan of Action for Girl Child (1991-2000)
This National Plan of Action for Girl child was formulated in 1992 for the “Survival, Protection and Development of the Girl Children”. The plan of Action is to ensure survival, protection and development of girl children with the ultimate objective of building up a better future for the girl child.
National Policy for the Empowerment of Women
The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a “National Policy for the Empowerment of Women” in the year 2001. The aim of this policy is to bring the advancement, development and empowerment of the women in the society.
The National Policy aims to end all types of discrimination against women, secure their active involvement in all areas of life and activities, and promote the advancement, development, and empowerment of women through a process of changing societal attitudes towards them.
In areas like the legal system, decision-making structure, mainstreaming of the gender perspective in development processes, economic empowerment through improved resource allocation through the Women’s Component Plan, gender budget exercises, and the development of gender development indices, among other things, and social empowerment of women through the adoption of a holistic approach to women’s health and universalization of education, the Policy prescribes affirmative action.
The Ministry of Women & Child Development, Policy namely, NATIONAL POLICY FOR THE EMPOWERMENT OF WOMEN (2001) lays down that ‘all forms of violence against women, physical and mental, whether at domestic or societal levels, including those arising from customs, traditions or accepted practices shall be dealt with effectively with a view to eliminate its incidence. Institutions and mechanisms/schemes for assistance will be created and strengthened for prevention of such violence, including sexual harassment at workplace and customs like dowry; for the rehabilitation of the victims of violence and for taking effective action against the perpetrators of violence. A special emphasis will also be laid on programmes and measures to deal with trafficking in women and girls.’
Recommendation and Future outlook
As we see that the cases of Domestic Violence are increasing rapidly even with the presence of the law. Therefore we can assume that to prevent the cases from happening and protect the victims we not only need the law but the contribution of the society and better implementation and awareness of these laws.
As per, the Press Information of Beauro, Government of India, SHRI PILOT CALLS FOR CHANGE IN THE MINDSET OF PEOPLE AND POLICE TO PRVDPT VIOLENCE AGAINST WOMEN November 24, 1994.
Shri Pilot well said that “inspite of the chances in the laws dealing with violence against women, conditions would not really improve unless the mindsets of the people and police is chanced by appropriate training and sensitisation. He disclosed that a cell in each district dedicated for this cause would he headed by an Officer who would be specially selected for the job.”
To prevent cases of domestic violence in the future and improve the implementation of existing laws, several recommendations can be considered. These recommendations involve a combination of legislative measures, awareness campaigns, improved support systems, and the active role of the government and judiciary.
Comprehensive Awareness Campaigns
The government should conduct extensive awareness campaigns through various media channels to educate the public about the laws against domestic violence, women’s rights, and available support services. School and college curricula should include education on gender equality, respectful relationships, and the importance of non-violence.
Strengthening Support Services and Legal Aid
The government has to increase the availability and accessibility of shelters, counseling services, legal aid, and helplines for victims of domestic violence. Ensure that these support services are adequately funded and well-publicized so that victims know where to seek help. Expand the reach of legal aid services to provide free legal assistance to victims of domestic violence. Simplify the legal procedures and paperwork involved in seeking protection orders and other legal remedies
Importance of Public Awareness and Education
The majority of women who experience violence appear to be unaware of this law or its ramifications.
“According to the NFHS (National Family Health Survey) III- 2005-06, 40.6 % women in India are illiterate. A total of 23 % have primary education, 14 % have secondary education, 10.4 % have higher secondary, and 12 % have education for more than 12 years.”
As per National Commission for Women, Marital Cruelty and 498A: A Study on Legal Redressal for Victims in Two States 126-30 Most women only turn to the Section in an emergency. In actuality, the law is being underutilised rather than abused. Even after experiencing violent situations on a regular basis, a lot of women decide not to report the crime to the authorities. Although claims have been made of a low conviction rate under the Section, the true causes of this are not disclosed.
Improving Coordination among Agencies
One of the other reasons is that the police fail to gather all the required evidence and make a weak case in court that is unlikely to result in a conviction. In many cases, a solution is reached because the ladies are unable to pursue a protracted legal struggle in vain. At every stage of the criminal court system, the woman complainants are subjected to immense pressure to settle the case or make concessions. The woman was under pressure to resolve the matter from the police, the court system, and society at large. In these kinds of situations, it is critical that the legal process move quickly because any delay just serves to enable the accused to further threaten women.
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Written by Ms. Tanishka Jain in assistance of the Team .
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Frequently Answered Questions
Q1. What is marital rape?
Marital rape refers to sexual intercourse with one’s spouse without their consent, constituting a form of domestic violence and a violation of the spouse’s autonomy and rights.
Q2. Is marital rape recognized as a crime in India?
No, marital rape is not explicitly recognized as a crime in India. Exception 2 of Section 375 of the Indian Penal Code exempts sexual intercourse by a man with his wife from being considered rape.
Q3. How many nations have laws criminalizing marital rape?
Out of 185 nations, 77 have laws making marital rape illegal, while 34 decriminalize it, including India.
Q4.What is the legal age for consensual sexual activity in India?
The legal age for consensual sexual activity in India was increased from 15 to 18 years by the Supreme Court in 2017.
Q5. Is marital rape recognized as a crime in other countries?
Yes, many countries recognize marital rape as a criminal offense and have enacted laws to prosecute offenders and protect victims.
Q6. What steps has the Indian government taken to address domestic violence?
The Indian government has implemented schemes like the Swadhar Greh Scheme and established bodies like the National Commission for Women to support and protect victims of domestic violence.
Q7. What legal reforms are needed to address marital rape in India?
Legal reforms are needed to remove the marital rape exemption from Section 375 of the IPC and explicitly criminalize marital rape, ensuring equal protection under the law for all individuals.
Q8. How can awareness about marital rape be increased?
Extensive awareness campaigns through various media channels and inclusion of education on gender equality and respectful relationships in school curricula can increase awareness about marital rape.
Q9. What support services are available for victims of domestic violence in India?
Shelters, counseling services, legal aid, and helplines are available for victims of domestic violence, but efforts are needed to expand their reach and accessibility.
Q10. What can individuals do to address marital rape and domestic violence?
Individuals can support victims, educate themselves and others about marital rape and domestic violence, and advocate for legal reforms and better support services.
