Marital rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. It is a form of domestic violence and sexual abuse. Women’s organisations in India have sought that Section 375 (law that defines rape) of the Indian Penal Code, should be declared unconstitutional, arguing that it discriminates against married women being sexually assaulted by their husbands. Section 375 has an “exception provision” which states that the rape law will not apply to assault or sexual intercourse by a husband on his wife who is above the age of 15 years. Although, historically sexual intercourse within marriage was regarded as a right of the spouse, engaging in the act without the spouse’ consent is now widely recognised by law and society as a crime. The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still in many countries, marital rape either remains outside the criminal law, or is illegal but widely tolerated.
From the beginning of 19th century feminist movement, activists challenged the presumed right of men to engage in forced or coerced sex with their wives. The demands of these movements were centered around the rights of the women to control their bodies and fertility. The marital rape exemption or defence became more widely viewed as inconsistent with the developing concepts of human rights and equality. Feminists worked systematically since the 1960s to overturn the marital rape exemption and criminalise marital rape. In 1993, United Nations High Commissioner for Human Rights published the “Declaration on Elimination of Violence Against Women”, which establishes marital rape as a human rights violation. Despite these trends and international moves, criminalisation has not occurred in all the UN member states.
In India, marital rape is not defined in any statute or law. Women’s rights activists have moved the High Court seeking to make it a criminal offence. For years, women’s organisations have been demanding that the rape of a woman by her husband be recognised as a criminal act that carries penalties. But there are many who believe that marital rape is not suitable to the Indian context due to various factors like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindsets of the society to treat the marriage as a sacrament etc.
Marriage does not thrive on sex, and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening, we primarily require generation of awareness. Men are the perpetuators of this crime. Educating the boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps to ensure the protection of women’s human rights. One cannot say that marital rape should be criminalised everywhere because large number of factors are associated with it which cannot be ignored altogether. We have to look at both the aspects of this debate as this is a very sensitive issue and has been criminalised in many countries of the world. But the world community (including India) must recognise the fact that the crime against the women are on rise day by day and the time is ripe to give importance to their rights including right to say ‘no’ when it comes to sexual matters, whether in or out of marriage.