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Laws for Marital Rape in India

Updated on August 30, 2017

Laws For Marital Rape In India

Abstract

In order to understand the case at hand, we need to first have knowledge of what Marital rape is. Marital rape is the act of sexual intercourse with one's spouse against the will of the other spouse. It’s a form of domestic violence and sexual abuse. It is criminalized in Zimbabwe, United States, Namibia and many more countries. It’s an issue of violence against women. Marital rape was a term that was viewed by the law as an oxymoron until shamefully late in U.S. history. Until the 1970’s, the rape laws in every state in the union included an exception if the rapist and the victim were husband and wife. In 1993, all 50 states had finally eliminated the “marital rape exception.” Section 375 of the Indian Penal Code (IPC) considers the forced sex in marriages as a crime only when the wife is below age 15. Thus, marital rape is not a criminal offense under the IPC. Marital rape did not happen often enough to merit rescinding the exception. This is a patently unsupportable point, given the percentage of wives who have experienced the crime.

  • Marital rape did not happen often enough to merit rescinding the exception. This is a patently unsupportable point, given the percentage of wives who have experienced the crime.
  • The lack of a wife’s consent is too hard to prove because the spouses would have had consensual sex numerous times.
  • Other laws, such as assault and battery, provide a raped wife with avenues for recourse that are less fraught than accusing her husband to have raped her.
  • A husband should be able to have sex with his wife without fear of prosecution (which sounds a lot like the historic “husband’s right to sex” .)
  • Protecting the husband from false accusations of rape.

1) Marital Rape

Marital rape is the act of sexual intercourse with one's spouse against the will of the other spouse. It’s a form of domestic violence and sexual abuse. Once it was barely recognized by the law and also our society as a crime. But now, there are such countries around the world where it is considered as a crime.

No matter how we look at it, it’s an issue of violence against women. Still, in many countries, people are not paying much attention to this issue, where there’s no law for this issue, on the other hand there are many countries where it is considered as a crime, but either way, it doesn’t helps one bit. That’s because even if there’s a law implemented for this, the law is not enforced over the natives of the country. If the laws aren’t enforced, there’ll be no change and this way the laws will be proved useless. And ACTUALLY these laws are useless unless they are enforced on the people of the country. And if they are implemented and then the crime is committed it’s not only violation of women rights but also violation of law. Even though the laws are made against the crime, it is widely tolerated. Sexuality and views about marriage have been challenged since 1960’s to 70’s. According to some laws, the woman is to do whatever her husband tells her to do, that is to say “she is to have sex with her husband whenever he demands it” even if it’s against her will, which is definitely what you call rape. The law says that a woman can’t claim that her husband raped her because a wife has no legal standings of her own. According to the Indian law it is said by the government that “ it’s because religious beliefs, social customs and the mindset of the Indian society, among other things” where it’s very odd that its claimed that because of religious beliefs, social customs and the mindset of the Indian society it’s not considered as a crime.

Women raped by their husbands with whom they share their lives, homes, and maybe children. On top of that, In addition to the violation of their bodies, they face breach of trust and intimacy. Unfortunately, victims of marital rape are not likely to see what is being done to them as a rape. This is no new thing; however, as society has only recently legally recognized wife rape as a crime, and opinion polls show that people still believe that wife rape must be "less harmful" than stranger rape. I don’t understand why! It is as shameful as stranger rape! It’s as bad as stranger rape!

By laws we can definitely change the social customs and when social customs are changed, people are bound to change their thinking someday when they find the change beneficial. And as for the religious beliefs, it’s clear to everyone that no religion justifies crimes of any sort. “Marriage” was once considered as an institution where a husband had control over his wife’s life, sexuality, likes, dislikes and everything. The husbands treated them as their personal “properties”, as if they were “something” they owned (i.e. the woman had no control over her life after marriage and had to totally devote herself to her husband). First the woman is the property of her father and then after marriage, she’s the property of her husband, and so she can’t claim to be raped by her husband because she’s his possession. According to Indian law the woman is to marry the person who raped her, the public has always thought that this law was in the favor of the woman, for saving her from embarrassment but unfortunately it was to protect the property interests men had in their women, not to protect women themselves. This concept of women as property permeates current marital rape ideology and laws throughout the globe.

2) History of marital rape

Marital rape was a term that was viewed by the law as an oxymoron until shamefully late in U.S. history. Until the 1970’s, the rape laws in every state in the union included an exception if the rapist and the victim were husband and wife. In 1993, all 50 states had finally eliminated the “marital rape exception.” But the effects of these archaic exceptions persist and interfere with spousal rape prosecutions in some states.

This article is a general discussion of marital rape laws. For more information on marital rape laws on a state-by-state basis.

3) Modern view of marital rape

The historic justifications for the marital rape exception have been largely discarded. However, there are several other justifications more recently proposed by those who continued to support the exception, including:

  • Marital rape did not happen often enough to merit rescinding the exception. This is a patently unsupportable point, given the percentage of wives who have experienced the crime.
  • The lack of a wife’s consent is too hard to prove because the spouses would have had consensual sex numerous times.
  • Other laws, such as assault and battery, provide a raped wife with avenues for recourse that are less fraught than accusing her husband to have raped her.
  • A husband should be able to have sex with his wife without fear of prosecution (which sounds a lot like the historic “husband’s right to sex” .)
  • Protecting the husband from false accusations of rape.

4) Why isn’t marital rape a crime in India?

As mentioned earlier in this article, the government says it’s because of poverty, religious beliefs, social customs and the mindset of the Indian society, among other things.

On top of that “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context,” Haribhai Parathibhai Chaudhary said in a written statement to India’s upper house of Parliament.

When they have criminalized normal rape in India, then why can’t they criminalize marital rape too?

Do they not consider it as rape?

Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person's consent.

That’s what happens in marital rape!

People say that it’s necessary for increasing the members in the family but it’s not in reality. The law hasn’t criminalized marital rape in India so the people have the guts to say this. Some people also say that “ if women find it to be rape then why do they get married?” And what if women are not interested in making a greater family? And the people who say “if women find it to be rape then why do they get married?”, they should be asked that “do people only get married to get raped?”

Men who say that women shouldn’t get married if they don’t want this. Have they ever imagined themselves at a woman’s place when she’s raped by her husband? Have they ever imagined themselves in a situation where their pride is ripped off? Never! Without even imagining the situation they just blurt out whatever they want. These sorts of statements are perfect to be called logical fallacy. What’s so good about it? I find this as a great disgrace and disgusting! What’s wrong with men? How do they see the world? What’s with this thinking? I don’t understand any of it! Come on! We talk about an India free of crime, an India with equality and what not, but on the on the other hand we can’t even secure our women by criminalizing such things.

5) Laws on marital rape in different countries

A) Ethiopian law for marital rape

An example of a country where the rape law explicitly excludes a husband as a possible perpetrator is Ethiopia; its rape law states "Article 620 - Rape: Whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the use of violence or grave intimidation, or after having her unconscious or incapable of resistance, is punishable with imprisonment from five years to fifteen years"

One more example is South Sudan, where the law states "Sexual intercourse by a married couple is not rape, within the meaning of the Article 247”. Another country where the rape law explicitly criminalizes marital rape is Namibia - The Combating of Rape Act (No. 8 of 2000) states that "No marriage or other relationship shall constitute a defense to a charge of rape under this Act". An example of a jurisdiction where marital rape is a definite criminal offense is Bhutan where 'Marital rape' is defined by Article 199 which states "A defendant shall be guilty of marital rape, if the defendant engages in sexual intercourse with one's own spouse without consent or against the will of the other spouse".

B) Marital rape status in Greece

In 2006, Greece enacted Law 3500/2006, entitled "For combating domestic violence", which punishes marital rape. It entered into force on 24 October 2006. This legislation also prohibits numerous other forms of violence against women and sexual abuse of women.

Liechtenstein made marital rape illegal in 2001.

In Colombia, marital rape was criminalized in 1996 and in Chile in 1999.

C) Marital rape status in Thailand

Thailand outlawed marital rape in 2007.

Meenakanit claimed that allowing a husband to file a rape charge against his wife is "abnormal logic" and that wives would refuse to divorce or put their husband in jail since many Thai wives are dependent on their husbands.

D) Indian law for marital rape

Section 375 of the Indian Penal Code (IPC) considers the forced sex in marriages as a crime only when the wife is below age 15. Thus, marital rape is not a criminal offense under the IPC. Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA). The PWDVA, which came into force in 2006, outlaws marital rape. However, it offers only a civil remedy for the offence.

E) English law

Prior to 1813

Under the jurisdiction of the Ecclesiastical Courts, which controls marriage regulations, desertion was not considered as a matrimonial offense but instead a deserted spouse could ask for a decree of restitution of conjugal rights.

The Ecclesiastical Courts Act 1813

The Ecclesiastical Courts Act 1813 abolished the excommunication punishment, replacing it with imprisonment of up to at least six months.

The Matrimonial Causes Act 1884

Under the matrimonial causes act 1884 failure to comply with an order of restitution of conjugal rights was not punishable by imprisonment any longer and only served to establish statutory desertion which gave the other spouse the right to an immediate decree of judicial separation and, allowed the wife to obtain an immediate divorce.

The Matrimonial Causes Act 1923

The matrimonial causes act 1923 equalized the grounds of divorce of husband and wife, giving the wife the right to divorce her husband alone (previously only a husband had such a divorce right), so asking for an order of restitution of conjugal rights was no longer as needed for wives.

6) Conclusion

This thinking of men is really absurd and disgusting. Marital rape should definitely be criminalized by the law in India. Marital rape is the greatest disgrace to our country and so it should definitely be criminalized. This should be stopped at any rate. This should be criminalized in India and all over the world. This is something that shouldn’t be taken lightly, and the government should act on such cases immediately. This is a violation of women rights so it’s necessary to stop it no matter what.

By : Ana hasan

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    • profile imageAUTHOR

      Ana Hasan 

      10 months ago

      Yes, of course its a matter worth considering. Its high time now that the government starts considering it. The decision should be made after keeping both the parties in mind.

    • AshutoshJoshi06 profile image

      Ashutosh Joshi 

      10 months ago from New Delhi, India

      I know this is a hot button currently and it seems the government too is shying away from taking a call, perhaps due to the extremely sensitive nature and of course considering the fallouts and then, of course, there are critical points worth considering that you have already mentioned above.

      There needs a thorough discussion on this topic before a consensus is reached. Having said that I am totally supportive of criminalising marital rape but it shouldn't be a hasty decision. As it is we already need to do a lot in order to curtail the increasing rape crimes.

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