When we talk about
marital rape the first question that comes to mind is that what is marital
rape? If it is happening within marriage, then how can it be called rape?
Marital rape or spousal
rape is non-consensual sex in which the culprit is the spouse of the victim. It
is a form of domestic violence and sexual violence. In India rape is a penal
offence under section 375 of Indian Penal code (IPC). However, marital rape
does not come in the bracket of conviction. Exception 2 to section 375 exempts
the unwilling sexual intercourse between the spouses from the definition of
rape if they are above fifteen years of age.
The society we live in
has been governed by some traditions, rituals and set of rules and regulation
set up by the patriarchal mindsets. Woman is always treated as a commodity, the
property belonging to her father or brother before marriage and to her husband
after marriage. Marriage in Indian society is considered as a sacred,
unbreakable relation that is said to successful only after having an offspring.
The consent to marriage is also considered as the consent to have sexual
relationship with the spouse. It is almost impossible for a woman to come
forward and tell that she is being raped by her husband. Because our system
does not consider it as a crime. Nobody can understand the pain of the woman
who is the victim of this system unwillingly. The physical and mental trauma
that she goes through makes her situation vulnerable.
Current scenario of
marital rape in India:
India is one of the
thirty-six countries that do not recognize marital rape as an offence. Our
legal system doesn’t provide any concrete protection to the victims of marital
rape. There is no particular law or punishment for this offence. This immunizes
the crime of marital rape.
Under Hindu marriage act,
1955 one of the ‘conjugal duties’ of the wife is to provide sexual satisfaction
to her husband, a thought of the patriarchal society.
Section 375 of the Indian
Penal Code (IPC) considers non-consensual sex as an offense only if the wife is
below 15 or the couple is legally separated. The recommendations of the
Verma committee to criminalize rape, was not accepted by
the government then. Parliamentary committee opposed the Verma
commission proposal saying that entire family system will be brought under
great stress if the Marital Rape is brought under the law.
Under the Protection of
Women from Domestic Violence Act, 2005, women can go to the court and get a
legal separation from her husband in case of marital rape because Explanation –
I provided for Section 3 of this Act states that sexual assault shall include
any conduct of sexual nature which demean, embarrasses or affects the dignity
of woman. But only separation does not deliver justice. The victim will always
demand an equal punishment. So marital rape should be criminalized.
Why marital rape should
be criminalized:
The statistics:
Out of the total
number of rapes reported to NFHS (National family health survey) 97.7% were
committed by spouses of the victim.
Thus, the intensity of the number suggests that marital rape should be
criminalized.
Mental Trauma:
Every day we hear stories
of marital rapes that even happens during menstruation and pregnancy also. So
apart from physical trauma the mental trauma the victim goes through in
inexplicable.
Violation of fundamental
rights:
Article 14 of Indian
Constitution states that the state shall not deny to any person equality before
law or the equal protection of laws within the territory of India. Although the
Constitution guarantees equality to all, Indian criminal law discriminates
against female victims who have been raped by their own husbands.
The Exception creates two
classes of women based on their marital status and immunizes actions
perpetrated by men against their wives. In doing so, the Exception makes
possible the victimization of married women for no reason other than their
marital status while protecting unmarried women from those same acts.
By depriving married
women of an effective penal remedy against forced sexual intercourse, it
violates their right to privacy and bodily integrity, aspects of the right
to life and personal liberty under Article 21. The United Nations has
also recommended India make it criminal for a man to rape his wife.
After pitching high for
‘Beti Bachao Beti Padhao’ we cannot give a woman full right on her body also.
The wife is a rape survivor and has the same right as other rape victims too.
Many countries have
criminalized marital rape. Malaysia has brought the laws to effect on 2007.
Turkey changed its laws in 2005 and Bolivia in 2013. The United States started
criminalizing marital rape in 1970s and most European countries in 1990s.
The United Nations has
also suggested India to criminalize marital rape. The Law Commission’s report,
2000 and Justice Verma panel, 2013 suggests to do away with the exemption
granted to marital rape in the laws.
The Bottlenecks in criminalizing marital rape:
It is very subjective.
Sometimes the woman denies to keep any relationship even if she is comfortable
with it. If the marital rape is criminalized without adequate measures in
place, the law can be misused against husbands. The law will increase burden on
the judiciary system and other important matters may get delayed.
The rule may not be
accessible to rural women because of illiteracy, ignorance and lack of
information in place.
It is difficult to
implement such law in India. Because marriage is considered as a sacred
relation and base of the family. The social customs, religious values and many
other factors will not allow such law to be effective.
Conclusion:
Consent of the woman is
important for establishing physical relationship. For every woman, be married
or unmarried, her consent is required, irrespective of the relationship, be it
be the husband or somebody else. The need of the hour is criminalizing marital
rape and bring it under the legal system. We can take adequate measures to
prevent misuse of the law. We cannot leave the system as it is in the fear of
misuse of the law.
However only legal reform
is not sufficient. Along with legal reform, social reform is also necessary. The
cases of marital rape are in increase because of the misconception of marriage and
marital life. We need to create awareness among women about their self-righteousness.
They should know that they are not just material things to be used. An
unwilling sexual relationship is also crime, even if it is inside marriage. They
should be taught about the laws available in place for such crimes. The society
should be educated regarding this crime and its consequences for the crime to
end soon.
Reference:
1.https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-inindia/
Well said
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