Marital rapes in India: A legal outlook

Introduction

History is evident in revealing the atrocities faced by Indian women’s all over since time immemorial. And now we can see domestic violence is becoming one of the greatest threats faced by Indian women. And one such factor of domestic violence includes marital rape. Which happens with women of all religions, say it could be Hindu, Muslim, Sikh or Christian. Marital rape in simple words basically means when, a spouse forces other spouse into having sexual intercourse but without getting proper consent. And it’s a very major issue in India. As in India 1 out of 3 men admits raping their wives, and after every 3 second[1] 1 Indian woman is raped by her own husband. Near around 70% of Indian woman’s are the victims of sexual and domestic abuse.  As per National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019[2], after every 16 minutes a woman is been raped, and after every 4 minutes she undergoes cruelty by her husband or by her in-laws. An estimated data indicates 99.1% of sexual violence cases are not registered and on an average 17 times more likely to face sexual abuse from her husband rather than others, as per the analysis done by National Family Health Survey (NFHS)[3] 2015-16.

Absurd to call it a Taboo

It is a believe, that discussing about sexual matters is taboo in many cultures and hence the basic knowledge on the subject of marital rape is not known or not understood by many. Because from long time back, people are treating and giving a place to this sexual intercourse between spouses as an obligation, which cannot be denied and already has an implied consent. People believe a marriage between two parties automatically implies their consent. The patriarchal framework that mostly governs the Indian society considers women as their unimportant property. So, if a female is being raped before her marriage it seems like a theft of pride and fame of the families, and for that the laws are strictly implemented in our country. But they never gave a thought that rape can even happen after marriage as, a rape means rape no matter, married or not. It has same pain, same violence, same insult, and same sufferings.

Rape can’t be determined by Gender

To this, the victims are not always female figures. Husbands are also the victim of marital rape and undergo same consequences. It is evident to say that, males tend to hide their feelings as in our society men means one cannot cry, cannot complain, and cannot show, they are vulnerable or are in pain. So, to them it becomes hard open up. As the male victims receive very odd reaction from the society and the community where he lives. Society presents men with masculine custom and thus they face hard to report the sexual assault done to them.

Is there any legal safeguard provided under Indian legal system

But what if, the laws itself provides a safeguard to the culprits and endanger the victims? It is ironical that, India is among the 36 countries that takes the stand in the world where marital rape is not recognized as a criminal offence. In fact, our law provides safeguard to the culprits and endangers the victims in the name of wedding right. And further under no category of Indian legal system, their sufferings are been mentioned.

In spite of knowing all these, section 375 of IPC (Indian Penal Code) mentions a provision of rape which is an exceptional clause of the said section. That is Exception 2.- Sexual intercourse or sexual acts by man with his own wife, the wife not being under fifteen years of age, is not rape. This section safeguards married women under 1The protection of Women from Domestic Violence Act2005, provides relief to marital rape victims but only as civil remedy.

The UN committee on Elimination of Discrimination Against[4] Women, recommended that the marital rape should be criminalized in India. Thereafter J.S. Verma committee[5] also recommended the same in the aftermath of the nationwide protest over December, 2012 gang rape case. Article 14 of our Indian constitution talks about right to equality. But exception 2 of section 375 of IPC, discriminates the right of married women with unmarried one on same offence, by infringing their protection against rape and sexual assault. Punishment is prescribed if it happens to unmarried women’s and no action, when it happens in marital tie, there is no rational relation of rape whether married or not. But as she is married, she is considered as the chattel of her husband, in this Indian society. Marital rape also violates article 21 of Indian constitution. Article 21 talks about Protection of life and Personal liberty. In the case of Suchita Srivastava vs. Chandigarh Administration[6], The Supreme court held, right chose for sexual activity, reproduction, privacy, dignity, personal liberty, and bodily integrity comes under the ambit of article 21, of Indian Constitution. In the case of Justice Puttuswamy (Retd.)[7] vs. Union of India the Supreme court recognized the right to privacy as one of the fundamental rights. Justice D.Y. Chandrachud while delivering the main judgement held, privacy is intrinsic to life. And hence it is a right to privacy to take own decision, which primarily rests upon one’s own choice in respect of intimate relation.

And recently, the bench of the Kerala High Court[8] comprising Justice A Muhamad Mustaque and Justice Kauser Edappagaht, said time has come to recast the marriage laws, and marriage and divorce should be put under secular law. Merely, as marital rape is not recognized as penal offence in our country it doesn’t means that it can inhibit the court to recognize it as a vital ground of cruelty for granting divorce.

Conclusion

A woman has all the right to control her own body no matter married or unmarried. And Rape is rape, it has no gender when such crimes are been committed either with male or female. The need is to amend the section 375 of IPC, and bring marital rape under the preview of criminal act.


[1] https://www.bbc.com/news/world-asia-india-32810834

[2] https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf

[3] https://www.livemint.com/Politics/AV3sIKoEBAGZozALMX8THK/99-cases-of-sexual-assaults-go-unreported-govt-data-shows.html

[4] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14813&LangID=E

[5] https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary

[6] (2009) 14 SCR 989

[7] (2017) 10 SCC 1  

[8] https://hckinfo.kerala.gov.in/digicourt/orders/2015/208000001792015_4.pdf

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