Marital rape also called spousal rape is the act of sexual intercourse where the lack of consent of a spouse is the essential element that need not involve any physical violence. Marital rape is considered a form of physical and domestic violence. Initially, sexual intercourse within marriage was considered as the right of the spouse but, now engaging in the act of sexual intercourse without the spouse’s consent is now classified as rape in most of the societies of the world and has been criminalised and is a punishable offense.
The issues of sexual and domestic violence including marital rape in a marriage and the issues of violence against women have gained increasing attention internationally after the 20th century. Laws are rarely being enforced due to factors ranging from the reluctance of authorities to pursue the crime to lack of public knowledge that sexual intercourse in marriage without consent is illegal. Marital rape is generally more common amongst women though not exclusively. Marital rape is a chronic form of violence that takes place within abusive relations. It exists in a form of complex webs of state governments, societal ideologies, and cultural practices that combine to influence each distinct instance and situation in varying ways. The reluctance to criminalize marital rape is mostly related and attributed to traditional views of marriage, interpretation of the religious doctrines and the ideas about male and female sexuality, and mainly the subordination of the wife to her husband.
These views were challenged in the western countries from the 1960s and the 70s, and it had a major impact on the emergence of the second wave of feminism leading to the acknowledgment of the woman’s right to self-determination. Most of the countries have started criminalizing marital rape from the 20th century onwards, however, very few legal systems have allowed for the prosecution of rape in marriage before the 1970s. Criminalization has occurred through many ways like removal of the statutory exemptions from the definition of rape, an explicit legislative reference in the statutory law preventing the use of marriage as a defence, judicial decisions. In most countries, it is still very unclear whether the laws relating to marital rape come under the ordinary rape laws, but in some cases, it is covered under the statutory laws prohibiting violence such as battery and assault laws.
The countries which were early to criminalize marital rape include Russia, Poland, Czechoslovakia, and some other communist blocks. In India, there are no special provisions as such governing the marital rape laws and it is being demanded by the Commission to enact the laws relating to the same. India is one of the 36 countries which have not criminalized marital rape.
The definition of rape under section 375 of the IPC includes rape in all forms including non-consensual sexual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. While unwilling sexual contact between a husband and a wife is recognized as a criminal offence in almost every country of the world.
The Supreme Court and other High Courts are flooded with writ petitions questioning the constitutionality of the exception and in one of the judgements of the Supreme Court, it criminalized the unwilling sexual contact with a wife between fifteen and eighteen years of age.
VIOLATION OF ARTICLE 14 OF THE CONSTITUTION:
Article 14 of the Constitution guarantees equality before the law and equal protection of the laws in the territory of India. However, the Constitution guarantees equality, the Indian Criminal Law discriminates amongst the female victims who have been raped by their husbands. Exception 2 violates the right to equality provided in article 14 as it discriminates the married women by not giving her protection from rape and sexual harassment. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
VIOLATION OF ARTICLE 21 OF THE CONSTITUTION:
Article 21 guarantees the right to life and personal liberty according to the procedure established by law. In the past few years, the Courts have started to acknowledge the right to abstain from any sexual activity and to be free from any unwanted sexual harassment enshrined in this article enshrining the right to life and personal liberty. In the judgement of the case State of Karnataka vs Krishnaappa, the Supreme Court held that sexual violence apart from being a dehumanising act is an unlawful intrusion of the privacy of a female and her sanctity.
Marital Rape thus is not an offence in India and has not been criminalized. It is essentially a type of wrongdoing against the ladies and the women who are raped by their spouses are inclined towards frequent attacks and long haul physical and enthusiastic issues. The act drafted for the protection of women from domestic violence has many loopholes as it does not criminalize marital rape directly and does not talk against it. On the brighter side sanctioning a particular enactment against abusive behaviour at home has opened the entryway for an enactment criminalizing marital rape. This unmistakably demonstrates the move in the mentality of the state which prior put stock in non-intercession in the family circle.