Marital Rape: Legal Provisions & Socio-Emotional Aspects

India is celebrating 75 years of independence, cherishing its achievements the fields of science, space, and economic development and simultaneously reassessing and redefining its priorities for the next 25 years. There are no apprehensions regarding the fact that women have played a key role in creating a prosperous India throughout this journey. Yet even today women are not free from shackles. They are deprived of health, nutrition, education, employment opportunities, financial independence, and even economic and reproductive rights.

• Their lives are characterized by patriarchal notions, abuse, exploitation and domination that deprive her of a dignified life. The issue of marital rape is one of such hurdle that prevents women from being equal citizens in a progressive country like ours.

Marital Rape – Legal Provisions

Though legal definition varies across jurisdictions, but in wider terms marital rape can be defined as any unwanted sexual intercourse by the husband obtained by force, threat of force, or when the wife is unable to consent. Marital Rape is not defined or recognized explicitly under any law in India.

• Section 375 of Indian Penal Code (IPC):The section has clearly defined that a sexual act committed without the consent of a woman is considered as rape.
• Yet the same section provides an exception which says that sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape.
• Section 376 of IPC: It provides for penal provisions in case an offence of rape is committed. Here too an exception is made that sexual intercourse by a man with his wife of above 15 years age is not punishable. Thus, once the age crosses 15 years, there is no legal protection accorded to the wife in case of non-consensual sexual intercourse, which is in direct contravention of a women’s right to bodily autonomy and dignity.
• Domestic Violence Act: In 2005, the Protection of Women from Domestic Violence Act was passed which although did not consider marital rape as a crime but included it as a form of domestic violence. Under this Act, if a woman has experienced marital rape, she can obtain an order for judicial separation from her husband. This is only a piecemeal approach in addressing a patriarchal issue having wider ramifications.

Thus, the Indian jurisprudence provides an exception to offence of rape, which directly violates Article 21. The Justice JS Verma Committee was set up after the Nirbhaya incident of December 2012, recommended that marital rape must be criminalized.

Social and Emotional Aspects of Marital Rape

• In India, a marriage is considered as a sacrosanct union between the wife and husband. Patriarchal minds perceive the woman as subordinate to her husband. Generally women themselves do not recognize sexual assaults by the husband as violating her rights and therefore they are least likely to report it. But such notions are changing fast.
• The idea of consent of a woman is missing in patriarchal societies. The “naturally” superior and aggressive husband is considered as the protector and provider of the wife to which a “naturally” subordinate and passive wife “consents.”
• Women’s reproductive rights are considered subservient to a man’s right. Marriage is seen as sanctioning sexual intercourse with the wife even without her consent.
• It is generally believed that from a psychological perspective an act of rape only by a stranger produces harmful effects upon the woman and violates her dignity. Whereas a rape by the husband is not even considered worthy of a protest by the wife.
• Due to gender and economic inequalities in the society women are often dependent upon their husband for her financial and other needs. Due to lesser bargaining powers of the woman, it allows the husband to forcibly coerce a woman into non-consensual acts with non-violent threats such as withholding finances. Social coercion also acts as a significant force in favour of marital rape, due to pressures upon women to be ‘good’ or ‘obedient wives’ who should not defy the word of their husbands.

Marital Rape is a heinous form of sexual assault occurring within a family. Exemption to spousal rape suggests that, the outdated conception of wives as the property of their husbands and marriage contract as an entitlement to coercion by the woman is still prevalent.

Turning a blind eye towards the issue will show the dominance of patriarchal mindset in the society. Educating young children to develop compassion, respect and kindness towards others is as important as taking legislative and administrative measures.