Behind the Locked Doors: The Evil of Marital Rape

July 14th, 201310:26 pm @    

Since childhood, watching happy ending Bollywood melodramas imbibes in everyone that marriage is a happily ever after kind of story. But in real life marriages may turn out to be most traumatized, tortured, abusive & mistreated relationship of one’s life. When husband gets abusive in a marriage it need not necessarily be limited to only physical violence & things take an ugly shape when even sexual violence is resorted to by a person who is entrusted with her “responsibility” after marriage.

Marital rape imageAs is said Rape is Rape. It is an act of violence on victims’ body, without her consent & just because such violence is committed by the husband so it is acceptable. Probably this is the message that goes to the sick, cruel minds who indulge into such acts & not “crime”. Marital rape as per Wikipedia is also known as spousal rape, is non-consexual sex in which the perpetrator is the victim’s spouse. As such, it is a form of partner rape, of domestic violence and of sexual abuse. Marital rape is a serious and often insidious form of violence against women with potentially devastating long-term physical and emotional effects. However, it is also vastly under reported and thus often untreated.

“Marital rape is a more dangerous form of sexual violence. A rape is normally a one-time occurrence, but marital rape allows for the victim to be raped over and over again. And the perpetrator here is not a stranger but the husband.”

Numbers tell a story:

In early 2000, two-thirds of married Indian women surveyed by the United Nations Population Fund claimed to have been forced into sex by their  husbands of which women aged 15 to 49, have been beaten, or forced to provide sex.

In 2011, a similar study released by the International Center for Research on Women, a Washington-based non-profit, said one in every five Indian men surveyed admitted to forcing their wives into sex.

A nine-nation study within the European Union found that current or ex-partners were the perpetrators of around 25% of all sexual assaults, and that violence was more common in assaults by ex-partners (50% of the time) and partners (40%) than in assaults by strangers or recent acquaintances (25%)”.

Rape violates  a woman’s  bodily  integrity,  freedom,  and  self-determination;  the  harm  is  not mitigated  because  the  rape  occurred  in  her marriage bed. Marital  rape can  be more traumatic  and  abusive  than stranger  rape. Suffering  at the hands  of a  spouse, who  is usually  a  source  of trust and  care,  produces  feelings  of betrayal,  disillusionment,  and  isolation  in  the  woman. The  spousal  exemption  to  rape  statutes  is  a  grave  injustice  and  adds to  the  trauma  of marital  rape. A wife  is  not able  to  quickly  and  unilaterally  secure  protection;  she  must  wait  for  the  divorce  process  to  take its  course  to  obtain  relief, during which  time she  remains  endangered. The  rape  law  exemption,  therefore,  removes  a  wife’s  right  to  abstain from  sex  and  subjects  her  directly  to  the  dangers  of sexual  violence. Following are several theories which justify marital rape exception-

i.  Implied Consent Theory:

The common  law  theory  behind a  spousal  exemption  for  rape  is most frequently  attributed  to  Sir Matthew  Hale, who  asserted  “but  the husband  cannot  be  guilty of a  rape  committed  by  himself  upon  his  lawful wife,  for  by  their  mutual  matrimonial  consent  and  contract  the  wife hath  given  up  herself  in  this  kind  unto  her  husband,  which  she  cannot retract’’. ‘R. v. Clarence’ (22  Q.B.D. 23  1888) initiated  the  questioning  of  the  soundness  of Hale’s theory. The bench  theorized  that marital  rape  could  be  possible  in  some  cases  if  the wife  refuses  intercourse and  the husband uses  violence  to force  the sexual act upon  her.

In  addition  to  Hale’s  implied  consent  theory, the  unities  of  persons theory provided  a  basis  for  the marital  rape  exemption. This  theory was  premised  on  how  marriage  merged  the  identities  of  the  husband and  wife  into one-the  husband. Thus, under the unities  theory, rape was impossible  since  a  husband was  incapable  of raping himself. Furthermore,  society  viewed  a wife  as  her husband’s property or chattel. Consequently, forced sexual  intercourse  was just  a  husband making  appropriate  use  of  his  property.

ii) Separate Sphere ideology

Toward  the  end  of 19th century, every  state  in  the United States  adopted  the  Married  Women’s  Property  Acts,  which  allowed women  to make  contracts,  to  hold  and  convey  property,  and  to sue  and be  sued  as  if  they were  unmarried. The property  arguments  discussed as  a basis  for  the marital  rape  exemption  lost  their  persuasiveness  because  women  were  no  longer  classified as property; rather, they could own property. The separate spheres ideology  replaced  the unities  theory as  the  basis  for  women’s  inequality. This  ideology  effectively  separated  the  sexes  by  maintaining  a  woman’s  place  in  the  home. Laws traditionally  did not infringe upon  one’s private  home,  thus,  legal  interference  into  a woman’s  sphere  became  an  unlawful  public  intrusion.

iii) Spousal Exemption Rationale

Evidentiary problems make marital rape difficult to prove. Without  the marital rape  exemption,  a vindictive wife may accuse her innocent husband of rape to  blackmail  him  into giving  her a favorable property settlement or custody  arrangement  in  divorce  proceedings.

Winds of change:

Around the globe social and legal attitudes began to change with the help of three developments in the late 19th& early 20th centuries. One was the Married Women’s Property Act of 1889, which afforded women the right to manage their own property, work outside the home without the consent of their husbands. Second, the divorce laws changed, making it possible for a wife to revoke her marriage contract. Third, sexual assault legislation was evolving to include a broader array of sexual offenses.

These three phenomena helped to shift the ideology surrounding the legality and rationale for marital rape exemptions and the “license to rape” given to husbands.

Current Position

Various legal systems around the world have today made marital rape a punishable offence, thus recognizing women’s complete right over her body despite being married.

In 100 countries across the world, marital rape is a criminal offense and is punishable by law including 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Poland, Czechoslovakia, Canada, New Zealand and Australia have  made  complete  reforms  in  their  rape  laws  by declaring  marital  rape  illegal. In one such case, in  1987  court  of  appeal’s  case,  R  v.  N , it was observed by court that  parliament  made  no  distinction  between  spousal  rape  and  other  rapes  because  all  rapes  produce  the  same  severity  of  outrage  and  violation.

Where does India stand?

In India, however, marital rape is counted as offense only when the couple is separated. The Indian legal system does not recognize rape within marriage. Section 375 of the IPC mentions as an exception: “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” According to Section 376, the rapist should be punished with imprisonment for at least seven years, which may extend to a 10-year term or even life-term. In addition to this, the rapist shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

The legal age for marriage in India is 18 years and the law protects girls only up to the age of 16.

A woman can seek legal recourse only under Section 498 (a) of the Domestic Violence Act of the IPC according to which: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is cognizable, non-compoundable and non-bailable.”

Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

Recently justice J.S.Verma committee has said marriage or any other intimate relationship between a man and a woman is “not a valid” defence against sexual crimes like rape. Quoting various court judgments in different countries, the panel said “the exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands.” Sadly this recommendation of panel finds no place in Criminal Law (amendment) Bill, 2012. The reason for keeping marital law out of purview of anti-rape laws was given to be “heaving scope for the wife to accuse her husband of rape it has the potential of destroying the institution of marriage… the entire family system will be under great stress.”

In a patriarchal society like India women is taught to be under the husband & fulfill his needs. A man forcing himself on his wife is seen as claiming his conjugal rights. The notion is that when a man comes home tired after a day’s work then the wife must not refuse his advances. The problem here is that woman’s labor at home and the workplace is ignored. She becomes a mere object of pleasure for the man.

However it needs to be realized that introducing concept of marital rape under Indian system is the need of the hour. Today where on one hand the country is crying for equality, respect, security, safety of the womenfolk on the other hand not recognizing her right to say NO, her autonomy over her body,on pretext that it has potential of destroying family is totally absurd. And saying that courts would be flooded with false cases of marital rape is just an extensive notion of stereotype vindictive wife. Instead steps may be taken to ensure that provisions of such law must not be misused. But altogether denying to encompass marital rape under penal laws would do more harm than good to families & to societies at large.

It needs to be put into the minds of males that women is not an object & marriage is not a license to have sex anytime, anywhere at their wish & rape whether committed  with wife or with stranger girl still remains rape only.


Justice Verrma Report

Indian Penal Code,1860

Domestic Violence Act,2005

Article by

Khyati is a pursuing B.A.LLB from Vivekanand Institute of Professional Studies, Delhi. She loves to read and has flair for creative activities like drawing and painting.

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