Indulging in sexual intercourse with one’s spouse without consent is marital rape. The essential element to constitute marital rape is lack of consent. It does not need to involve physical violence. It is a form of sexual abuse and domestic violence. Initially it was regarded as the right of spouses to have sexual intercourse within marriage but indulging in such act without consent, now is termed as rape. Marital rape is experienced widely by women.
It was believed that if a girl marries a boy, she has given consent to have sexual intercourse and also that a husband cannot rape his wife. Rape was considered as a crime and theft of man’s property. It was not recognized as damage to woman but instead to her father or husband. A legal doctrine stated, upon marriage, a woman’s legal rights were subsumed by those of her husband. The property to be withheld in a woman was her virginity. A woman was considered as the property oh her father and after marriage the property of her husband. And thus it was assumed that a man cannot rape his own wife as she is his own possession. Marital rape cases are seen highly in forced marriages.
Rape laws was created to protect the property interests men had in their women and not to protect women themselves.
MARRIAGE AFTER RAPE
Many a times the victim of rape is forced to marry her rapist, as a resolution to rape. These kinds of marriages are known as reparatory marriages. As a result of which many victims remain in violent relationships and experience marital rape. Even after marital rape victims continue to remain in such relationships because they think that divorce may be hard to obtain. Another reason being they feel shame and guilt.
PSYCHOLOGICAL AND PHYSICAL DAMAGE
- Spread of sexually transmitted diseases and HIV
- Affects the victim’s reactions
- Emotional trauma
In many religions it is said that after marriage husband and wife are no longer two, but one flesh. It is explicated in the writing of Apostle Paul as:
“The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time that you may give yourselves to fasting and prayer; and come together again.
Sex within marriage is even considered as duty and some religious figures even consider marital rape as impossibility.
After marriage some obligatory roles are placed on wives which is considered as their duty. They are expected to sacrifice their happiness and everything for their family, fulfilling the sexual demands of their husbands.
Husbands are influenced by the expectations of their masculinity. Husband is the head of the family and is expected to provide food, cloth and shelter. Along with this comes the privilege and authority of patriarchy. And if the wife denies the husband thinks that he is being challenges. And then violence comes into play.
SECTION 375 OF IPC
It states: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
Recent change to this is: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.
Section 375 discriminates between two groups of the same sex; married women and unmarried women. Right to life under Article 21 of the Constitution includes right to privacy, sanctity of female and to make choices relating to sexual activity. Section 375 Exception 2 stands against these very basic human rights and is contradictory in nature to the Protection of Women from Domestic Violence Act, 2005. Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age. India remains one of 36 countries where it is not a crime for a man to rape a woman.
Arguments given against criminalizing marital rape:
- Argument 1: It’s against Indian culture
- Argument 2: Once married, women’s perpetual consent is implied
- Argument 3: Women will misuse any law against marital rape
PROBLEMS IN PROSECUTING MARITAL RAPE
- The criminalization of marital rape does not necessary mean that these laws are enforced in practice.
- Lack of public awareness