A man is said to commit rape if (he penetrates his penis / any object (not mouth) to any extent into the vagina, mouth, urethra or anus of a woman or manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of her body or applies his mouth to the vagina, anus, urethra of a woman) or makes her to do so with him or any other person under the following circumstances:
Against her will/without her consent/unable to communicate consent.
Consent obtained by coercion, force, etc.
Consent obtained as she believes that he is the man to whom she is or believes herself to be lawfully married and he knows that he is not her husband.
If she is under 18, consent is immaterial.
Merely the fact, that the woman has not physically resisted the act of penetration it isn’t consent. Exceptions: medical procedure or intervention; husband having sexual intercourse on his wife who is not under the age of 15 years.
Indian Penal Code criminalizes the rape committed by strangers and by husband after separation and on female below 15 years of age. Rape committed on female above 15 years of age by her husband is not criminalized, however the act committed is same.
Marriage doesn’t give access to the body of a female. One cannot have any sexual intercourse with a female simply because she is his wife. He has to take the consent of her before performing such an act. He is the person, who she trusts and who she wanted to share her life with. If such person forces her into such an act, her trust on him will be shattered and she doesn’t feel as secured as she used to feel before. Such wild behavior may show impact on both physical and mental health of the victim of marital rape.
In the case of Rafiq v. State, Justice Krishna Iyer has stated that “a murderer kills the body but a rapist kills the soul”. Marital rape is a non-consensual act of violent perversion by a husband against his wife.
From a very long time, Marital Rape was not at all considered as a crime in Law. During 1600s, Sir Mathew Hale, Chief Justice in England, stated that “a husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind into the husband, whom she cannot retract.”
In the case of Francis Coralie Mullin v. Union Territory of Delhi, Justice Bhagwati, held that, “We think that the right to life includes the right to live with human dignity and all that goes beyond with it.” Sexual coercion with an unwilling partner constitutes the grossest form of violation of individual's right to privacy and offends the integrity of such person; hence it is the violation of Article 21 of the Constitution of India.
Since, Marital Rape is not an offence it can be only prosecuted under the Domestic Violence case. According to a study on 2010 which is pointed by the Verma Committee Report, 18.8% of women are raped by their husband on one or more occasions. The Verma Committee recommended criminalization of Marital Rape, but the ordinance rejected it.
Many Countries like US, UK, Mexico, and Sri Lanka has criminalized Marital Rape. The United Nations Convention on the Elimination of All Forms of Discrimination against Women has recommended that Marital Rape should be criminalized. India even after being the part of UN has still not criminalized the Marital Rape. Whether to make marital rape criminalized or not is yet to be finalized through the case of RTI Foundation v. UOI. According to the view of the author, the Marital Rape has to be criminalized.
Marital Rape by Velanati Jyothirmai @ Lex Cliq