Explained: What is the controversy over Marital rape? A non-criminalized crime in India

New Delhi, Feb 21: Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The issue has been the subject of much debate in India.

The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.

Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.

With the Delhi High Court currently hearing petitions seeking the criminalisation of Exception 2 to Section 375 of the Indian Penal Code, let us have a look at History judicial precedents and the more:

The first country to criminalise marital rape was the Soviet Union in 1922.

History of the anomaly of marital rape

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. In February 2022, Smriti Irani (Minister for Women and Child Development) told parliament that "The Government of India has initiated the process for comprehensive amendments to criminal laws in consultation" in response to questions on marital rape, which assures some provisions will be made on criminalizing marital rape.

Recent countries to criminalize marital rape include Zimbabwe (2001),Turkey (2005), Cambodia (2005), Liberia (2006), Nepal (2006), Mauritius (2007), Ghana (2007), Malaysia (2007), Thailand (2007), Rwanda (2009), Suriname (2009), Nicaragua (2012), Sierra Leone (2012), South Korea (2013), Bolivia (2013), Samoa (2013), Tonga (1999/2013).

Human rights observers have criticized a variety of countries for failing to effectively prosecute marital rape once it has been criminalized. South Africa, which criminalized in 1993, saw its first conviction for marital rape in 2012.

Types of Marital rape

Battering rape: In battering rapes, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

Force-only rape: In what is called force-only rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled sadistic or obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

Battering rape is the most common form of marital rape. Forty-eight percent of all cases of marital rape were classified as battering rape. Force-only rape is the second most common form of marital rape.

Legal Position In India

Criminal Law Aspect:

The IPC defines rape under sec. 375 as:

• A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
• Against her will
• Without her consent.
• With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
• With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
• With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
• With or without her consent, when she is under sixteen years of age.