Marital Rape

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Marital rape (also known as spousal rape and rape in marriage) is non-consensual sex (i.e., rape) in which the perpetrator is the victim's spouse. It is a form of partner rape, domestic violence and sexual abuse.

Once widely unrecognized by law and society as a crime or wrongdoing, marital rape is now opposed by many societies around the world, repudiated by international conventions, and increasingly criminalized. The issues of sexual and domestic violence within marriage and the family unit, and more generally, 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. Laws are rarely being enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that forced sexual intercourse in marriage is illegal.

Marital rape is more widely experienced by women. Despite the popular understanding that marital rape is a one-time occurrence, it is often a chronic form of violence for the victim. It usually exists in destructive relationships and is more about humiliation, degradation, anger, and resentment. It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways. The reluctance to criminalize and prosecute marital rape has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and to cultural expectations of subordination of a wife to her husband—views which continue to be common in many parts of the world. These views of marriage and sexuality started to be challenged in most Western countries from the 1960s and 70s especially by second-wave feminism, leading to an acknowledgment of the woman's right to self-determination (i.e., control) of all matters relating to her body, and the withdrawal of the exemption or defense of marital rape.

Most countries criminalized marital rape from the late 20th century onward—very few legal systems allowed for the prosecution of rape within marriage before the 1970s.

Criminalization has occurred through various ways, including removal of statutory exemptions from the definitions of rape, judicial decisions, explicit legislative reference in statutory law preventing the use of marriage as a defense, or creating of a specific offense of marital rape. In many countries, it is still unclear whether marital rape is covered by the ordinary rape laws, but in some it may be covered by general statutes prohibiting violence, such as assault and battery laws.

Current Position in India

In the case Independent Thought v. Union of India, the Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta struck down Exception 2 of Section 375 of the IPC to provide protection to the husband, his minor wife and the sanctity of their conjugal relationship. It ruled sexual intercourse with minor (below 18 years) wife is rape.

Hence current position of law is that 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).

Why Marital Rape should be criminalized?

Lawmakers when asked or posed with question of criminalizing marital rape the most common answer is that it will be difficult to prove. They forget to take into consideration there will be a history of violence and physical abuse, and will fit into the larger picture of domestic violence. Marital rape will not be an isolated event.

Also if we look this problem much bigger question to address is to change the patriarchal social norms. In the NFHS survey, for instance, 54 percent women said it is fair to say that violence by a husband is justified. So law alone cannot resolve the plight of women unless backed by a change in patriarchal mindsets and economic empowerment of women.