Rape is one of the most heinous offences that has been traumatizing and debilitating the virtues of morality and justice worldwide. Rape is not just limited to the parameters of forced sexual activity but it also affects the emotional, societal, mental and physical harmony of the victim. In a country like India where sexual sanctity is given extreme importance, the offense of rape has serious social consequences such as suicides and societal abandoning. Rape is the manifestation of gross cruelty and brutality which is pervading the society like a parasite that is deeply embedded and entrenched in the society.
The Supreme Court of India has appropriately described rape as “deathless shame and the gravest crime against human dignity.”[i] The offense of rape, when committed by a husband against his wife behind the sacramental closed doors of the matrimonial relationship, is all the more detestable and loathsome. Spousal rape or marital rape refers to the offense that is committed within the four walls of a marital sacrament. The current legal provisions in the Indian legal system do not recognise or expressly penalise marital rape. The essay shall deal with the main questions that ought to be settled in this regard i.e. whether the existence of a martial relationship assumes the implied consent of wife with respect to all future sexual encounters with her husband. Marriage undoubtedly encompasses the right to sexual intimacy but it is to be decided if this right includes the right to forced and unconsented sexual intimacy.
Presently, there is no specific legal recourse available to a poor wife who is a victim of marital rape and she has to silently suffer these pangs of absolute animosity and acrimony at the hands of her husband. It is a serious offense and needs immediate legal and societal attention as it is not merely a denial of the right of basic dignity to a wife, but it is also a complete disregard to the marital sacrosanct. The husband has absolute legal immunity with respect to the physical relationship with his wife. The most reasonable justification behind this can be the assumption of implied consent of wife owing to the existence of a matrimonial bond. Section 375 of the Indian Penal Code recognizes the offense of rape as one that falls within the ambit of all or any of the six prescribed parameters which mainly include the performance of sexual intercourse by a man against a woman without her will, against her consent, or by manipulated consent. The exception clearly states that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The Protection of Women from Domestic Violence Act, 2005 also accords protection to women. However, no similar protection is given to the married woman by these statutes.
A married woman is very much a person who reserves the right to dignity, equality, life and personal liberty as promised under Articles 14 and 21 of the Constitution of India and her being the wife of a man nowhere allows for abridgment of either of these rights. Moreover, the special status accorded to women by Section 15(3) of the Constitution adds to the relative immunity that women enjoy when it comes to fundamental rights. The essay will critically evaluate this emerging issue of marital rape in India in the light of prevalent legal provisions and thereby present a possible answer to the aforementioned questions after considering relevant social and legal factors.
MARITAL RAPE IN INDIA: A SOCIO-LEGAL CRITIQUE
Her exhilaration was beyond measure. The excitement of experiencing the charm of a marital relationship, of having a life partner to share all her joys and sorrows was weighing heavily on her. She could see all her dreams come true in the new world that awaited her. Her fragile dreams of love and trust painted her little world red and the constant blush on her face was gaining subtle permanence. Who knew that the same blush will soon be replaced by wounds and scars which would be the visible identity of her married life? Who knew that she will be so inescapably caged in the four walls of the marital sacrosanct that she would be left with no option but to either endure silently or to rest in everlasting peace? Who knew that her sweet petite dreams of love and trust will be clouded and tarnished by the dark virulent storms of wild lust, anger and frustration? Who knew that her marriage was not about a mutual sense of a duty of care but it was just a matter of transfer of ownership coloured in the garb of custom and tradition? Who knew that she will soon be transformed to a case of extreme mental agony and shock in a rehabilitation centre? Such is the condition of multitudinous households in India where the existence of a marital bond between two people transforms into a license of unconsented sexual and physical manipulation of the wife by the husband. Marital rape can be most simply understood as the forced non-consensual intercourse by a husband against his wife. It can be further categorised into force-only rapes, battering rapes and sadistic rapes depending on the magnitude of violence and hostility.[ii]