SHOULD UNNATURAL SEXUAL INTERCOURSE BY HUSBAND CONSIDERD AS MARITAL RAPE

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ABSTARCT

Marriages are said to be made in heaven. In the Indian society marriage is the purest form of binding two individual. Marriage is an institution that gives social, cultural and legal recognition to two individual. Even though in some society marriage is a contract which gives them permission to have sexual intercourse with each other. The consent given in marriage is regarded to be consent given for sexual intercourse. Now when before sexual intercourse consent is not there and there is forceful sexual intercourse the concept of marital rape comes into picture. A rape is a criminal act but a rape committed by a man with his adult wife is decriminalized. Unnatural sex in criminalized under sec 377 except consensual lesbian relationship. Whether unnatural sex comes under marital rape often solely depends on the judicial interpretation. 

KEYWORDS: unnatural sex, marital rape, criminalization, sexual intercourse, penetration

INTRODUCTION

Marital rape between the couples along with unnatural sex has remained an issue of global concern even today. It is opposed by most of the feminists of the world. Some of the countries have taken steps to criminalise marital rape. Still most of the countries haven’t criminalised it; India is one amongst them. According to section 375 of IPC rape between the spouse is legal (rape of a minor girl is a rape under the act).

According to section 377 consensual unnatural sex between partners is legal; as decided in the case of Navtej Singh Johar vs UOI; although non- consensual unnatural sexual intercourse is not valid. According, to this section unnatural sex historically defined as non-penile vaginal intercourse, including anal and oral.

This creates an inconsistency: forced anal and oral sex by husband can be prosecuted under sec 377 IPC but forced vaginal sex is protected; this creates a paradox in the legal system. 

HISTORICAL BACKGROUNG OF THE MARITAL RAPE LAWS 

Origin of the marital Rape exception

The execption of the marital rape laws can be found as early as medieval common law. 

At that time the meaning of the word rape meant the destruction of purity of the woman. Rape was supposed to occur when the purity of a woman is destroyed, the purity woman could never be destroyed by her husband so marital rape was not considered as crime. Moreover, marriage was thought to be a perpetual consent to sexual intercourse, which removed the wife’s bodily autonomy. 

Colonial influence on IPC

IPC was drafted in 1860 by Lord Macaulay during British rule, it exempted marital rape under article 375. The reason given was that marriage is implied ongoing consent, where the husband had right over his wife. 

Evolution of Legal thought on Marital rape  

With the passage of time and the development of the feminist movement, the notion of perpetual consent in marriage is challenged and the concept of the word ‘marital rape’ has also changed.

RESEARCH METHODOLOGY

This paper is written an in-depth study of various primary and secondary resources. The recent case of Gorakhnth Sharma vs State of Chhattisgarh has ignited the discussion on the issues of shall unnatural sex be included in marital rape.  

The marital rape has always been one amongst the greatest issue and an hinderance to the path of justice for women, as it denies their equal status and right of being an  individual, as marriage gives  a consent of sexual intercourse with his wife whenever he may wish. 

REVIEW OF LITERATURE 

The IPC was enacted by the Britishers. The then governor General Lord Macaulay drafted the IPC it had many provision and similarity with the then British law. At that time women were seen merely as a property whose purity cannot be destroyed by the husband. Thus, there was no question of criminalizing marital rape as a women’s purity can never be destroyed by her husband. With the passage of time this concept has changed and women has begun to get a separate identity and they have become more separate individual and have started to give their own opinion and are fighting for their equal rights. The IPC laws were made 1860, after it many feminism waves came up which taught women to be more empowered and fight for their own rights, demand their separate identity. Thus, gradually women started getting a separate identity. 

WHAT DOES THE WORD UNNATURAL SEX MEANS?

‘Unnatural’ means something that is not natural or against the natural rules of law. Natural sexual intercourse means penetration of penis by a man into the vagina of a women. Unnatural sex is defined and criminalized in section 377 of IPC. In unnatural sex it either through oral or anal. Under section 375 of IPC (Indian Penal Code) or section 63 of BNS (Bharatiya Nyaya Sanhita,2023) rape is defined as a crime.

WHAT IS UNNATURAL MARITAL RAPE

Marital rape is the forceful penetration of penis into the vagina of an adult wife without her consent. Marital rape is rape committed by the preparator who is victim’s spouse. Rape means sexual intercourse with a person without his/her consent. 1

  1. Raveena Rao Kallakuru & Pradyumna Soni CRIMINALISATION OF MARITAL rape IN INDIA: understanding ITS CONSTITUTIONAL, CULTURAL AND legal impact 11 NUJS L. Rev. 1 (2018) January-March 2018;121

Unnatural means that is not normal. Unnatural sexual offence means sexual intercourse that doesnot involve intercourse of vagina and penis of the men and women, it is done through the anal and penis. Any form of heterosexual unnatural sex is criminalized. Thus, unnatural marital rape a sexual intercourse which is committed by a husband without his wife permission and there is sexual penetration in unnatural way that is either in oral or anal penetration. 

Unnatural sex is of two types heterosexual and homosexual sex is decriminalized for lesbianism, that has consent of both the parties. 

Whereas rape is the penetration of penis into the vagina forcefully without consent. Rape is illegal in India but marital rape with wife above 18 years of age is legal. That means sex with wife doesn’t require consent if she is an adult. 

In Section 375 exception 2 it is clearly mentions that rape by husband is not a crime. Under section 377 it criminalizes unnatural sex except consensual homosexuality, although it does talks about criminalizing or not criminalizing unnatural marital rape. 

UNNATURAL SEX IN MARITAL RELATIONSHIP AND CONSTITUTUIONALITY

The Article 14 of the Indian Constitution talks about equality. Article 14 deals with Right to equality and talks about giving equal protection to laws. Criminalizing rape and exempting marital rape for husband creates inequality which is violative of the right to equality provision. Thus IPC clearly and grossly violates Article 14 of the constitution. Exempting rape by the husband creates discrimination and is a hindrance and loophole in the right to equality. The physiological pain and trauma in both the cases is same thus there is no issue and use of exempting marital rape from the punishment of rape.  

The article 21 says no person shall be deprived of his right to life and personal liberty. The definition of right to life and liberty is extended to right to privacy. It is violative of right to privacy as there is forceful penetration in the private parts.2 

REASONS GIVEN IN LIEU OF MAKING IT JUSTIFIED

The laws were made to pacify the patriarchal society to fulfil their needs and pacify themselves. Thus, various vague and unjustified reasons were given to validate their point of issuing this laws. 

  • Marital rape is so rare, so legislation may avoid this issue.
  • Due to mere impossibility of establishing marital rape, considering it is overburdening the court; which is already overburdened with other issues.
  1. Akshita Kaushik, Constitutional Imperatives: Addressing Marital Rape Within Legal Frameworks, nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf/ May 21 2024
  • Wives may often to fulfil their malicious interest falsely accuse their husband in these cases. 
  • At the time of marriage implied permission is given
  • It will destroy the marital relationship, as it would hinder the conjugal relationship. 

On close and careful examination, it can be found that these reasons are without any logic or moral within it which are used to pacify and satisfy the dominating half of the society and the patriarchy. 

CHALLENGES

With the increase in number of false cases lodged by women, men can become easily victim of this cases and moreover it may become difficult for to proof the innocence or guilt of the men. The legislature needs 

to make laws which are gender neutral. Although it is truly needed as anything forcefully is not good. Women too are human beings they have their own opinion and they too may be ill or not well for such act they should not be forced.

It may also lead to increase in rape of women in desolate roads late at night. As many a time it is commonly heard that after food, clothes and house sex is the main need the common men of India. 

Criminalizing marital rape means saving a woman at the cost of others who may be are safe now. 

HEALTH ISSUES DUE TO UNNATURAL MARITAL RAPE

The side effects and health issues regarding the unnatural sex are often not disclosed but side effects of unnatural sex is a serious effect which require medical assistance. 

During unnatural sex small tiny membranes of anus may be broken during the penetration due to lack of unavailability of lubricating substance that are available in the vagina. This can weaken the rectum in holding the fecal matter. 

A consensual unnatural causes such dangerous symptoms, adding force along with it can even worsen the situation, which may lead to immediate medical attention which may even lead to death if left unattended.

A marital rape survivor often suffers from mental health issue along with physical problems. Physical problems include wounds in private parts, tear and wounds, bladder pollution unnatural birth still born babies, sexually transmitted diseases, gynecological effect in private parts, crazy eyes, broken nose, broken bones, cuts and wounds etc. These physical problems often lead to nervous shock, mental breakdown, anxiety, fear. Confused eating, rest issues, sadness, negative complications throughout the life or for a longer period of time.3

Treating unnatural sex as marital rape in a marriage may lead to more women victim as men will get acquitted after committing such heinous offences. It will ultimately disbalance the justice and legality 

  1. Deepak Gautam⃰ & Gopal Singh⃰, A Study On Marital Rape A Myth Or Reality In Indian Context, www.mpdnlu.ac.in13. A study of Marital Rape a myth or reality in Indian Context.pdf, visited on 20.03.2025

of the law. Due to decriminalization of marital rape it is not reported, although majority of married women have faced it once in their lifetime. 

Over the years from the age of 15 to 50 women have endured sexual offences from their most near ones; that is from their better halves within the spheres of marriage boundaries, they have endured it and endured it defenselessly.  

With the passage of time many laws are made for protecting both inside and outside their home, the domestic violation act, 2005. Protection of women from sexual assault are among them. Still marital rape 

couldn’t find a place in this list of crime. Thus, it is not a crime. Even today many women shade tears alone due to marital rape. 

In a recent case of Gorakhnth Sharma vs State of Chhattisgarh the H.C. has acquitted the husband as marital rape is not considered a crime under the IPC even though it had cost someone’s life.

Is the law meant to give justice and reduce pain; and wrong of the society; or are the laws made for the benefit and fulfilment of the desire of one half of the population of the society. Can we call it a justice when a women’s untimely death is justified and her murder is acquitted just because the pain she endured is legal and her purity is maintained? 

The difference between the rape and marital rape is the legal consent. When a woman marries does she gives permission for using her body; it is implied. Does it happen in every situation, doesn’t she have any emotions? 

Earlier Adultery was a crime, if husband had not given permission to some other men to have sexual intercourse with his wife. If he gave him permission then it is not considered to be  a crime. Now it is stuck down. Similarly, it is high time that marital laws too are stuck down. Even the new criminal law that is BNS haven’t stuck it down. 

CASE LAWS 

In the recent case of Gorakhnth vs state of Chhattisgarh4.  

Facts: The accused was a 40-year-old driver who had unnatural anal sexual intercourse with his wife. After having unnatural sexual intercourse that is putting hand in her anal opening, he went to his work. In the meantime, his unattended wife who had suffered major injury, her condition worsened and she died in hospital. In the hospital she gave her statement regarding being victim of unnatural marital rape. 

The medical practioners had proved through post mortem report that there were two passage in her anal which clearly proofed of having unnatural sexual intercourse. The trial court had convicted him, but the High Court had acquitted his not due to lack of evidence but the IPC has exempted from being an offence. 

  1. Gorakhnth vs state of Chhattisgarh, HC, 2024

In the case of Harvinder Kaur vs. Harmander Singh- the Delhi High5 court had said that the constitution cannot intervene in the household matters of the common citizen of India. It will destroy the sanctity and sacred nature of the marriage institution. Article 14 and Article 21 cannot enter inside the four walls of the house.  

 In Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty6 the Supreme Court said it violates article 21 as it hinders fundamental rights and victims right to dignity. 

In the case of Independent Thought v Union of India Anr, the sexual intercourse with a minor was regarded as an offence under this case law. In the IPC it mentions about sexual intercourse with a girl above 15 or fifteen years will not be a marital rape. The POCSO (Protection of Children from Sexual Offences) act criminalizes crime up to 18 or eighteen years. Thus, judicially it is increased to 18 or eighteen years. 

 INDIA AND OTHER COUNTRIES

Marital rape was not considered as crime in most of the countries till the few decades ago. With the growth of individuality and individual opinion of women marital rape is being criminalized. 

In 2005, Indonesia and Turkey made marital rape illegal, followed by Mauritius and Thailand in 2007.

As per the United Nations Population Fund, more than 66% of hitched ladies in India matured 15 to 50 have been exposed to constrained sex, beatings, and torment, as well as a share interest.

In India, almost 83% of married women aged between 15 and 49 have blamed their husband for sexual violence whereas 7% have called the bygone husband an offender, according to the report of 2015-16 released by National Family Health Survey.

4% of the women were forced by the husband to enter into sexual intercourse, 2.1% to perform sexual acts and 3% were threatened when the wife did not want to or wish to perform, as per the report, NFHS-4. 

According to a report by Maneka Gandhi then minister for Women and Child Development stated that marital rape may be applicable globally but it cannot be applied here due to lack of education and illiteracy. 

In the world only, few countries have criminalized marital rape unfortunately India is not one among them. 

MARITAL RAPE AND IT’S RELATIONSHIP WITH UNNATURAL SEX

The forceful intercourse or penetration by a husband to his wife in marital relationship in unnatural manner

  1. Harvinder Kaur vs. Harmander Singh, AIR 1984 Delhi 66
  2. Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty 1996 AIR 922
  3. . Independent Thought v Union of India AIR 2017

that can lead to serious health issues are included in this type of unnatural sex. Forcing someone to have sexual intercourse can itself lead to serious injury along with it having a forced intercourse in unnatural place can even lead to more complicated situation if sooner medical help is not asked for.  

CAN A HUSBAND BE PUNISHED FOR HAVING UNNATURAL SEX WITH HIS WIFE?

Over the years in many cases the husband has been held liable and is punished and, in several cases, they are acquitted. There is a continuous up and down in the judgement of the court.  

Under section 376 punishment for rape is given which includes rigorous imprisonment for life which shall not be less than 10 or ten years and may extend to imprisonment for life and shall also be liable for fine.  

SUGGESSION 

It is high time that the respective government must take steps to abolish marital rape and unnatural sex should not be seen as a marital rape under this law. Just like a rotten mango in a basket which has the capacity to destroy all the mangoes similarly a law which denies justice to the victim will slowly destroy other laws. It is the duty of the legislature to make laws. It must make proper laws which are beneficial to both the halves of the society, not only to a single sex of the society. Just like adultery which has already been stuck down. 

The recent case of Chhattisgarh is highly criticized as they have acquitted the accused even after evidence and death bed statement of the victim; only because IPC does not recognize it as an offence. In a case the Court had stated that the death bed statement of the victim can be considered. The postmortem report clearly mentioned that the victim went through an unnatural sexual offence in the anal as there was a separate gap below the anal opening. In her statement she told that her husband had put hand in his anal opening. 

Now it is high time that government must take proper steps to provide justice to all. 

CONCLUSION 

Many attempts has been made to criminalize marital rape; adding one criminalized issue along is letting go off some off the accused as acquit. Marital rape should be criminalized as a marriage cannot be a legal receipt to threaten his wife to have sexual intercourse with him.  

It is true that it can be misused, although only the fear of misuse cannot be an excuse to deny justice to the victims where there is solid evidence. Decriminalizing it will make it injustice for those who deserved justice, as over the passage of time the meaning of rape has changed the society and today women are not the property of men and they have their own individual rights. 

The IPC law was made by Lord Macaulay during British India which reflected the British laws at that time; one amongst them is the rules of marital law. Even the BNS of 2023 failed to eliminate the Section and marital rape continues to be an exception.

REFERENCES

BY 

SUDESHNA MONDAL 

UNIVERSITY OF ALLAHABAD



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