This legal article on the burning issue like Marital Rape is written by Alisha Singh. She is 3rd Year B.A.LL.B. Student of Jagran Lakecity University.
Introduction
Every youngster have fondness towards watching movies and series, and we try to picture our life like the characters played in these movies, some of us copy their lifestyle, some of us change our taste of fashion, the way of living life, the way of talking , eating and start taking the tips from these motion pictures to impress the boy/girl to whom we like a lot. These features teaches the youth how to chase a girl even if she denies the boy’s proposal, as her answer ‘no’ is been heard ‘yes’ to the males. This message has misguided a lot of youth , especially to those whose male ego is been injured. By carrying these ethos , boys when moves to become husband ,opinions and aspiration of his wife in bed is also of no or little significance.
What is Marital Rape?
The term ‘marital rape’ refers to the unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent. According to the Indian Penal Code, 1860, rape is defined under section 375.
Current status of Marital Rape in Modern India
Marital rape has been immunized from penalization. As Former CJI Deepak Mishra pronounced; ‘I don’t think that marital rape should be regarded as an offence in India; because it will create absolute anarchy in families. Also our country is sustaining itself because of the family platform which upholds family values’. Thus the institution of Marriage bestows absolute rights on the husband to have non-consensual sexual intercourse with his wife forcibly; and brutally on the basis of archaic notion ‘implied irrevocable consent’ .
The concept were once a woman is married to a man, she hands over her life; and never ending continuous sexual consent to her husband is a deeply embedded one in our society; women will misuse any law against marital rape. Even if some women misuse the law, that’s what the judiciary is there for; — to weed out the false cases and dismiss them with an appropriate penalty. These were the arguments raised due to which marital rape is still a non criminalized crime in India.
Changing Mindsets is the Real Struggle
Society always keeps on rebuilding and sometimes that rebuilding is quite evident in movies. Not necessary that the rape is always committed by a stranger; because you never know that your husband turns out to be the rapist of your life. But what if that man legally being your life partner will give a very serious wound. Women are not safe even in their homes. During this current pandemic situation, in Covid-19 crises; there have been arousal of many such cases of marital rape. We are safe at home because we are suffering from one virus which is killing people who steps outside their home.
But these victims of marital rape are dealing with two viruses at a time; one with Covid 19 and the another one which is 24/7 present with them in their own home; and yes the most vicious ones. In this common era, women have grown so stronger; that they are raising voice against various evils of the society. Women’s existence has been taken so thinly in this male dominating era; that rape of a woman by her husband is any less brutal than triple talaq or polygamy. Let us go more deep in this black hole of marital rape.
Rape and Marital Rape
Section 375 if IPC deals with the concept of rape, deals with the concept of rape. It defines rape as the; “a man is said to commit rape if he extent his penis, to any extent, into the vagina, mouth, urethra, or anus of a women or makes her do.
For a rape there should be 6 criteria to be fulfilled:
- Against her WILL
- Without her CONSENT
- With her consent when obtain by FORCE
- When she is UNABLE TO COMMUNICATE her consent
- With or without her consent when she is under 18 years of age.
- With her consent when she is unable to understand the nature due to unsoundness or intoxication.”
Some articles have been violated in the constitution, as because marital rape is not been included even in rape.
Violation of Article 14
Article 14 of the Indian Constitution ensures that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. However there is absence of equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands.
At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity. Rather, she was considered to be a thing of her husband. As a result, she did not possess many of the rights now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity.
Violation of Article 21
Exception 2 is also a violation of Article 21 of the Indian Constitution. Article 21 states that no person shall be denied of his life and personal liberty except according to the procedure established by law.” Time and again the Courts have said that the right to life includes not merely the right to breathe but to live with dignity. When a woman is Raped she not only suffers physical harm but mental agony as well, Her dignity is hurt. In recent years ,court have begun to acknowledge a right to abstain from sexual inter course and to be free from unwanted sexual activity enshrined under these broader rights to life and personal liberty. [4]
India’s condition in the matter of marital rape
Marriage is said to be the purest bond between two people; which binds them together in love; but no one knows when it can turn into the darkest nightmare in the wife’s life. Thereby, a marriage automatically means that a woman consents to sexual intercourse; because for the longest time, women have been treated as a tool of procreation and to extend the family lineage. Section 9 of the Hindu Marriage Act, 1955 which has been highly debated for years now, wherein a husband can, legally, demand sexual access to a spouse is more than often only used against married women. That should be enough proof to how little sexual consent women have in their marriages. In India , the legal system in concern has been a big mess by saying that husband can not be prosecuted for an offence of rape of his own wife.
It means that a husband can have sexual intercourse anywhere, anytime and of any sort against the will of his wife is one of the implied terms of the contract of marriage which is a binding condition upon the wife and she cannot breach it.
Some Remedies for Marital Rape
Domestic Violence Act, 2005
Protection of women from Domestic Violence Act was enacted in 2005 for providing legal protection to a woman. It doesn’t consider marital rape as an offence but still under this act if a woman is victimized of marital rape then she can approach the court seeking judicial separation, which implies that under this act marital rape can be taken as a ground before court to obtain judicial separation from her husband.
Section 376(B) of Ipc
It provides punishment for a husband who is living separately whether under a decree of divorce or otherwise, forcefully has sexual intercourse with his wife shall be punished with imprisonment of not less than two years which may extend to seven years.
Judicial Stand
In the case of Independent Thought vs. Union of India and Anr. Supreme court held that Exception 2 of Section 375 IPC is liable to be struck down on certain grounds as it relates to a girl child below 18 years.
Such as:
- It is discretionary and violative of Article 14, 15 and 21 of the Constitution of India.
- It is conflicting with the provisions of POCSO, which must prevail as it a special law for the protection of girl child.
Therefore, Exception 2 of section 375 IPC is read down as follows:
Sexual intercourse or sexual acts by a male with his own wife, the wife not being 18 years, is not rape. It is much terrifying to be raped by someone to whom you have married and known him well, a family member.
Court’s Opinion
In the case of Sree Kumar vs. Pearly Karun, the Kerala High Court observed that; because the wife was not living separately from her husband under a decree of separation or under any custom or usage; even if she is subject to sexual intercourse by her husband against her will and without her consent; offence under Section 376A, IPC will not be attracted. In this case, there was a ongoing dispute on divorce between the parties. Thereafter, a settlement was reached between the husband and wife and parties agreed to continue to reside together. The wife stayed with the husband for two days during which she alleged that she was subject to sexual intercourse by her husband against her will and consent. Hence the husband was held not guilty of raping his wife though he was de facto guilty of having done so.
In this case, the Supreme Court, in State of Maharashtra vs Madhukar Narayan Mandikar, has referred to the right of privacy over one’s body. In the preferred case, it was decided that prostitutes have the right to refuse sexual intercourse as she is not married to anyone whoever is putting sexual demand before her. What is hard to digest is to know that all stranger rapes have been penalized and except wives, all females, have been given the right of privacy over their bodies.
Conclusion and Recommendations
It’s high time now that marital rape should be recognized in India as an offence. There is a need to understand that marital rape is a crime that is to be recognized by the government; and every individual should report for it. The society’s mentality as well the laws should be changed immediately. The Indian Government in order to protect women enacted/amended many laws as time passed. Although it shows itself in enacting the laws against the horrible crime against the women by their own husband’s which is marital rape. We need to make the people understand that it is a problem; a serious problem which is harmful to the all over development of the country.
“Woman is the companion of man gifted with equal mental capacity.”
Gandhi Ji
So they deserved to be treated equally. Every woman’s straight answer is no, which should be taken seriously. These victim woman’s suffer everyday and each day due to her husband; which automatically creates a hatred towards her by the society; her in-laws and even her real parents. Women’s are now independent, powerful, educated and employed. They should be respected and their dignity shall be protected.
Marrying a man doesn’t mean giving consent for physical and mental torture to one’s own self; by fulfilling the sexual desire of the person to whom you are married. After being subjected to mental and physical agony by the husband; She has nobody to turn to. The society will not accept it and the judiciary will close its eyes; because she is married. The time has come when every men should realize the importance of a woman in their life; as without them this world is fish without water.
REFERENCES
- https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india
- https://www.thehindu.com/opinion/editorial/rape-and-marriage-the-hindu-editorial-on-the-supreme-courts-failure-to-protect-the-rights-of-women/article33983306.ece
- https://www.researchgate.net/publication/223831051_A_review_of_marital_rape
- https://www.tandfonline.com/doi/full/10.1080/08164649.2014.95812
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