Marital Rape, a rape that is not commonly discussed. The kind of rape that the IPC also does not include. Section 375 of the IPC states that rape is some form of forced or non-consensual intercourse with a woman. But exception 2 of the IPC states that “a man’s sexual intercourse or sexual acts with his own wife, the wife being not under the age of fifteen, is not rape.” Therefore I would like to state that “Marital rape is a crime established by the law, supported by the state and overlooked by society.”
The degree of ignorance about marital rape in India is such that rape committed under the commitment to marry is considered rape only if the promise was made with the intention of mala fide only to have sex and have no intention of keeping the promise and not when in the marriage non-consensual intercourse is performed. In the case of “Deepak Gulati v. the State of Haryana,” the fact that sex performed on the pretext of marriage is rape was established as recently as 2013. The constitution is advancing, but it is more complicated at a very slow pace and the disadvantage of not having a common-law for different religions. “I say so because it was established in “Independent Thought v. Union of India” that rape is non-consensual sexual contact with a wife aged between 15 and 18 years. This is a steady shift, but very slow if we see the role of other nations.
We can say that, in its stance on marital rape, India is not very progressive and modern when there are only 35 more countries that do not criminalize it. We know that when our stance is similar to that of Pakistan, we are in a very pathetic condition regarding marital rape. Our nation has seen massive criticism from the Muslim community that the amendment was aimed at Muslim men. This brings me to another significant fact specified in Islamic law. The law states that free will and consent are rape. In India, Muslim law states that marriage is a contract, and a man may divorce his wife, saying ‘talaq’ three times over the period of three menstrual cycles where the wife has no such right and has no remedy for marital rape. In India, Muslim law allows up to four wives to be polygamous. Suppose we see a hypothetical situation in which the Muslim man is aggressive and strong about intercourse with all his four wives. In that case, the situation of Muslim women is most likely the worst in the Indian context. In the Hindu Marriage Act of 1955, the Muslim Personal Law (shariyat) Application Act of 1937, and the Special Marriage Act of 1954, marital rape in India is not a valid reason for divorce.
The marital rape provision is completely violated and is contrary to the spirit in which Article 14 was introduced in the Indian Constitution. There is such a stark difference in rights between married and unmarried women of the same age that there is no penalty for marital rape for women over 18. In the IPC, dating back to 1860, the Victorian laws tracing back to patriarchal England are vividly present. The IPC that the British created has the essence of British culture’s patriarchy and dominant manly hood. Only after a considerable movement and world pressure, Britain give women voting rights, making Britain a country to incorporate women’s rights relatively late than its other’ Modern counterparts. ‘
In contrast with the spirit of the oppressive patriarchal colonial rule, Article 14, which was introduced into our constitution by our far-quoted and progressive liberal representatives, is rather unusual. There is such a contrast between the concept of equality described in Article 14 of India’s Constitution and the marital rape referred to in the IPC. The IPC recognizes and revives the values of the Victorian culture, where the Coverture doctrine was present, which made women the same entity as her husband and subsumed her rights with those of her husband. At the same time, Article 14 was adopted by the American Bill of Rights, which was much more advanced than the Victorian laws. We may see that progress is still hampered by the conservative judges sitting in the Supreme Court and claiming that things such as Article 14 of the Indian Constitution are subject to the test of reasonableness that can only be passed if the classification has any rational relation to the goal to be accomplished by the act. However, it is distinctly evident that exception two is anti-spirit section 375 aims to attain. We could see no logical nexus that can be deciphered and that the test of reasonableness is not even met, thus breaching Article 14 of the Indian Constitution.
We may see how some regressive legislation impedes the advancement of women’s rights in our nation. Justice is farfetched in a country where people make comments like “Fate is like rape, enjoy it if you can’t resist it” Men’s patriarchal and overwhelming intentions subdue women’s rights, and neither the legislature nor the judiciary function favourably on them. Thoughts of citizens, social laws, and government perspectives do not contradict any women’s rights. Rape is the same for married and single women, and heinous criminals should have no escape.
• Bare act of the Indian Penal Code
• Muslim Personal law (shariyat) Application Act of 1937 • https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
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