By: Vinod Chandrashekhar Dixit
Sexual violence within marriage is common and manifests in various forms, including marital rape. Despite the fact that India has celebrated its 75th year of independence, women in the country are still neglected and are not genuinely free and independent. Rape is an offense against women that violates her dignity and self-respect, and it lowers the woman to the position of an object used primarily for sexual enjoyment when it occurs within the four walls of a married house. Marital rape, the act of forcing your spouse into having sex without proper consent, is an unjust yet not uncommon way to degrade and disempower women. Today, Marital rape has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise.
Rape is an unlawful sex without assent of a man because of physical drive or dangers, or due to deceitful demonstration of perpetuator. In India rape by an outsider is a penal offense under section 375 and 376 of IPC. Shockingly, it unequivocally avoids marital rape from ambit of conviction. Marital rape is sex by spouse with his better half without her assent or by compel or danger.The definition of rape codified in Section 375 of the Indian Penal Code (“IPC”) includes all forms of sexual assault involving nonconsensual 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. Marriage is a legally sanctioned contract between a man and woman, which is a legally recognized relationship. Sexual intercourse between husband and wife is legal. Due to the legality of sex, husbands gain the right to force their wife’s to have sex with them, which can be the reason for marital rape.
At present, marital rape has not been criminalised under law but a specific form is criminalised under Section 376B of the IPC. The section is explained as – “Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”
Under section 375 of the Indian Penal Code, the definition of rape is when a man without the person’s consent or will has sexual intercourse. Section 375 explains what rape is and when an act becomes rape. It also provides for 2 exceptions one of which is a medical procedure and the other one is sexual intercourse of a husband with his wife who is not 15 years or below is not considered as rape. But if the woman is above the age of 18 and the husband has sexual intercourse without her consent is not constituted as rape. When a woman is forced to have sexual intercourse it is not merely a physical injury but the deep sense of some deathless shame. It also causes deep psychological, physical, and emotional trauma, thereby disregarding the very soul of the victim.
A woman who is raped by a stranger carries the memory of a horrific incident with her; on the other hand, a woman who is raped by her own husband lives and has to sleep with her rapist. There is an urgent need for the judiciary to recognise marital rape as an offence under the Indian Penal Code, especially now when there is a surge in domestic and sexual violence cases against women due to the pandemic-induced lockdown.
By: Vinod Chandrashekhar Dixit