The concept of Marital Rape is as old as marriage laws of India. In India marital rape is not defined in the Indian penal code and thus not criminalized and it’s largely not viewed as rape in India due to the sacred nature of marriage in Indian culture. Marital rape or we can say non consensual sex by one spouse with another spouse leads to a gravest form of human right violation with a domestic violence or sexual abuse on the victim.
In India, classical Hindu law unlike Islamic laws reflects the earlier mindset. The law of marriage in India unlike Islamic countries is a rule where married women tend to believe that the life after marriage is their fate and their husbands becomes their ‘bhagyavidhata.’ Similar is the case in Islamic law, even in Islamic law one of the major reason of divorce is disobedience on the part of wife.
The concept of marital rape is not a new development. It came into limelight when the cosmopolitan group of women raged their voice against the inequality towards the married women’s right on their body and manifest their grievance towards it. This issue came to wide international attention from the second half of the 20th century but still in many countries including India marital rape either remains outside the criminal law, or is illegal but widely tolerated. Along with India there are 36 other states like Pakistan, Bangladesh, Afghanistan, Colombia, Myanmar, Syria, Yemen, Tajikistan etc. where marital rape hasn’t been criminalized yet and the reason behind the it is not only the orthodox or conservative mentality but there are also other social factors responsible . The concept must have evolved from the theory of “Might is always right” were the superior males always have considered females feeble and hopeless creature in a society the legal subordination of wives is always considered to be a misbalance. The origin of the concept of a marital exemption from rape laws could be a rule that a husband cannot be accused and charged for rape of his wife. This idea that by marriage a woman gives irrevocable consent to her husband to have sex with her any time whenever he demands it or it is considered to be less harmful than rape by strangers is a view which was described by Sir Matthew Hale (1609-1676) in History of the Pleas of the Crown, published posthumously in 1736, where he wrote that “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
The western countries challenged this view relating to marriage and sexuality during 1960s and 70s especially by second-wave feminism, leading to an acknowledgment of the woman’s right to self-determination and a trend for being intolerant of all matters relating to her body, and the withdrawal from non consensual activities or taking a defence of marital rape.
Poland in 1932 was first to have a law explicitly making it a criminal offence. Australia, under the impact of second wave of feminism in the seventies, was the first common law country to pass reforms in 1976 that made rape in marriage a criminal offence. And since 1980’s many common law countries have developed their legal system and have explicitly abolished the marital rape immunity in direct and indirect way. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana Israel etc. Belgium has also criminalize marital rape in 1979, the Brussels Court of Appeal recognized marital rape and found that a husband who used serious violence to coerce his wife for having sex against her wishes was guilty of the criminal offense of rape. In Europe, also Finland outlawed marital rape in 1994. One of the example of non-criminalizing of Marital rape is South Sudan, Art 247 states: “Sexual intercourse by a married couple is not rape, within the meaning of this section”. In contrary an example of a country which 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 defence to a charge of rape under this Act”. An example of a jurisdiction where marital rape is a distinct criminal offense is none other than a buffer state and a neighbour of India i.e., Bhutan where ‘Marital rape’ is defined in Article 199 which reads: “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” 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. UN Women recommended the abolition of giving bride price, and State that a perpetrator of domestic violence, including marital rape, cannot use the fact that he paid bride price as a defence to a domestic violence charge.
Asst.Prof of Law –Mamta Thapa
