MARITAL RAPE

Marital or spousal rape is the commission of non-consensual sexual acts. It is violence against women whereby a person indulges in sexual acts with their spouse without their consent and against their will.

Even though sexual violence and sexual crimes against women are primitive and are as old as the institution of marriage itself, the recognition of marital rape as a crime against women is a relatively new concept in our legal system.

Even today, in many countries including India, marital rape is not criminalized. The main reason for this hesitation and unwillingness to accept marital rape as a crime is the orthodox views on marriage, interpretation of religious doctrines and texts and sexist and patriarchal views that give men a superior position in the society and regard women as their subordinates.

HISTORICAL BACKGROUND:

Historically rape was regarded as a crime or theft of a man’s property. It was not a considered a crime against a woman but a crime against a man, usually a father or a husband. Since, in case of marital rape, the act is committed by the husband himself and not someone else, the question of rape doesn’t arise. Sir Matthew Hale in ‘History of the Pleas of the Crown’ said “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”.

The justification given for the non-consensual sexual acts were:

  • The main purpose of marriage is procreation and hence the consent of the spouse is not required.
  • Marriage is contract between two parties and in this contract each spouse gives an implicit consent for sexual intercourse and hence there is no need for an explicit consent.
  • If consent was made essential, it would have an adverse effect on the institution of marriage.

During 1960’s and 70’s a revolution began against rape laws and non-consensual marital intercourse. In the 19th century, during the second-wave feminism, women challenged the laws and customs that undermined their rights especially their rights regarding their body, consent for sexual acts and many more rights.

Women’s Liberation Conference, 1978: “Freedom for all women from intimidation by the threat or use of violence or sexual coercion regardless of marital status; and enter the laws, assumptions and institutions which perpetuate male dominance and aggression to women.”

Even today, when most countries have criminalized, there are still many countries like India where marital rape is legal. It is in a way legalized rape.

MARITAL RAPE: INDIA

In India, marital rape has been a subject matter of debate for decades. There are many conflicting views regarding marital rape. While most people consider a heinous crime, there are still many people who do not recognize it as a crime but as a right that the customs and traditions have conferred on men.

Marital rape under the Indian Penal Code is an exception to Section 375 which lays down general provisions related to the offence of rape. This exception states “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”

The arguments given in favor of upholding the constitutional validity of marital rape are:

  1. Culture and religion

One of the main contentions in favor of not criminalizing marital rape is that it regarded by many as a western concept that is not suitable for the Indian society because of the difference in the culture and societal norms and values.

Even today, people are not ready to accept marital rape as a crime and violation of a woman’s rights.. Because of this view of people it is difficult to criminalize marital rape in India.

Former Chief Justice of India, Dipak Mishra said that marital rape “should not be made a crime in India because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”.

  • Implied consent

There is a common belief that a woman gives her implicit and continuous consent at the time of her marriage. This consent is regarded as a never ending consent.

  • Existing laws

Other argument that is given that laws like Section 498A of the Indian Penal Code and Protection of Women from Domestic Violence Act, are sufficient and adequate to deal with the cases of marital rape and that there no need for specific laws in this regard.

  • Misuse of law

It is difficult to assess cases of marital rape. If laws that criminalize marital rape are enacted, there are chances that wives might misuse these laws against their husband.

WHY MARITAL RAPE SHOULD BE CRIMINALIZED?

Exception 2 to Section 375 of the Indian Penal Code, which permits marital rape infringes a woman’s basic human right to live with dignity. It violates Article 14 of the Constitution, i.e; Equality Before Law and Equal Protection of Laws. This exception divides women into two classes- married and unmarried and lays down different laws regarding the same offence on the basis of marital status of women. This is discriminatory and is against the Constitution.

Exception 2 also infringes Article 21 of the Constitution- Right to Life. Right to Life includes right to live a healthy life and the right to live with dignity. Marital rape is a dehumanizing act that includes unlawful intrusion of the right to privacy. It causes physical and psychological harm to a woman and affects her dignity. It infringes right to personal liberty, bodily integrity and freedom.

In C.E.S.C. Ltd. v. Subhash Chandr, the Court held that exception 2 is also inconsistent with Article 21’s ‘right to live with a healthy and dignified life’

Marital rape is in a way non-criminalized crime. This exception legalizes rape and it takes a away a woman’s control and right over her own body and will.

Even today, when there a lot of laws for the protection of women, we still see a lot of cases of marital rape being reported and there might be lot more that are not even reported. The main reason for this is that there are so specific laws regarding it and it gives an immunity to a man to rape is wife without being punished. This immunity is repressive and allows cruelty and violation against women. India has come to a stage rape should be made an offence against all equally and the division on the basis of marital status should be abolished. Consent is an important part of everyone’s life and it is everybody’s right to say ‘NO’. Justice Geeta Mittal said  “ Marriage does not mean that the woman is all time ready, willing and consenting. The man will have to prove that she was a consenting party.

Gujarat High Court laid down that It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”

REFERENCE:

  1. Wikipedia – https://en.wikipedia.org/wiki/Marital_rape#cite_note-174
  2. The Swaddle- https://theswaddle.com/marital-rape-inda-decriminalized-crime/
  3. Feminism in India- https://feminisminindia.com/2022/01/25/marital-rape-marriage-strike-news-delhi-hc/
  4. The Daily Guardian- https://thedailyguardian.com/constitutionality-of-marital-rape-in-india-an-analysis-in-the-light-of-articles-14-21/

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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