The author of this article is a Law Student, Faculty of Law, University of Allahabad
“Her friends used to tell her it wasn't rape if the man was your husband. She didn't
say anything, but inside she seethed; she wanted to take a knife to their faces.”
- F.H. Batacan
Marital rape can be defined as rape in which the wife is forced to have sexual intercourse with her own husband, against her will. The concept of marital rape has emerged, to a large extent, in recent times, and many countries do recognise it as a crime. But for India, it still is an unfulfilled dream because the legal sanction for the same is yet to be made. There has been much debate and a question of law over what exactly marital rape is, and if it even exists, and if yes, then how and why it should be considered as a criminal offence.
Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused. Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex.
Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada,
Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia.
Rape in any form is an act of utter humiliation, degradation and violation rather than an
outdated concept of penile/vaginal penetration. Restricting an understanding of rape
re-affirms the view that rapists treat rape as sex and not violence and hence, condone
Rape is not only savagery against ladies but rather a grave infringement of a
person's basic ideal to life and individual freedom. Connection amongst casualty
and culprit does not transform it. In this manner it isn't right to trust that sex with
spouse is husband's privilege given to him by marriage.
Sex is Not a Right
Wives do not belong to their husbands as though they were property. Sex is not a “right” that goes with marriage. It is not a wife’s duty. A woman does not give up her right to say yes or no the day she gets married. Sex should be based on respect, equality, consent, caring, and clear communication. No woman wants to feel like she’s living with a rapist. Good men don’t want to be one. But if the husband refuses to take responsibility for inflicting emotional and physical pain and even feels justified in his actions, it may be that the only way for the wife to stop it is to leave. It may be frightening for the wife to cut loose, especially if she is financially and emotionally dependent on her husband. But sometimes it’s the only way to save herself.
The wife’s role has traditionally been understood as submissive and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected.
“A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical.”
In Australia a person can apply to a judge or magistrate for an order allowing him/her to marry if he/she has reached the age of 16 years.However, by 1991 every state in Australia had abolished the marital rape exception.
2. New zealand:-
In New Zealand, a person under 20 years of age but over 16 years old can only marry with parental consent. The age of sexual consent for women is also 16 years. There is no exception for marital rape in the Crimes Act, 1961 of New Zealand. The marital rape exemption was abolished in 1985.
3. United kingdom:-
In the UK, a marriage below the age of 16 years is void. The Marital rape exemption was abolished in its entirety in 1991.
In Egypt, the age of majority for all legal purposes except marriage is 21 years. The age for giving consent is 18 years and the penal code says that intercourse with a girl below 18 years is rape.
5. United states of america:-
In the U.S., different States have different laws. The marital rape exception has been abolished in 50 States of the US.
In Indonesia the age of majority as well as marriageable age is 16 for girls and 19 for boys. The age for giving a valid consent to a sexual act is also set at 16 years for a girl. Any marriage below the legal age is void. The Domestic Violence law in Indonesia also punishes a person in the household who forces sex on another person in the same household with a maximum sentence of 15 years.
POSITION IN INDIA
In India marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes.
Marital rape is not an offense in India. Enactments in regards to marital rape in India are either non-existent or esoteric and dependant on the understanding by Courts.
· Section 375, the provision of rape in the Indian Penal Code (IPC), mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.”
· As per section 376 of IPC, which provides punishment for rape, the rapist ought to be rebuffed with detainment of either portrayal for a term which might not be under 7 years but rather which may stretch out to life.
In Saretha V. T. Venkata Subbaih case, it was held that rights and duties in a marriage, is like a creation and dissolution and not the term of the private contract between two individuals. The right to privacy is not lost by marital Association. Hence there is no punishment for marital rape and the remedy lies with her.
In India, one in every ten women was reported facing sexual violence by their husbands during their lifetime. The number of women sexually assaulted by their husbands is 40 times the number of women attacked by men they don’t know, as per the CNN reports.
It is concluded that changing the law on sexual offences is a formidable and sensitive task, and more so, in a country like India, where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law. The immediate need is criminalization of marital rape under the Indian Penal Code. But, mere declaration of a conduct as an offence is not enough. Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
 The Australia Marriage Act, 1961
 Marriage Act 1955
 Crimes Act 1961, Section 128, Clause 4,
 UNICEF Website