Marital Rape

                                               

ABSTRACT   

Humanity stands on two pillars, men and women, they should have equal importance and role in its development and growth, but women have always been subjected to a lot of humiliation by men, rape is an apt example of the atrocities committed against the dignity of women. Women have been treated as an object of pleasure since time immemorial. It is one of the biggest threats to gender justice in India. It is one such social evil which has existed in India since ancient times and still continues to raise havoc in the country. Indian society has never considered marital rape as a problem. This Article aim is to bring prevention of Marital Rape in India Therefore, it’s need to bring some strong law in prevention of Marital Rape in Indian Society.

                                                   INTRODUCTION

Marital rape is any unwanted sexual acts by a spouse or ex-spouse, committed without consent and/or against a person’s will, obtained by force, or threat of force, intimidation, or when a person is unable to consent. Plainly stating, forced intercourse within marriage is marital rape. It is the most serious violation of a women’s bodily integrity.

In India it is a socially accepted practice that a woman is not entitled to ‘refuse’ or say ‘no’ in the ostensible sacred institution of marriage, ‘no’ is considered to be a taboo in our society and the woman is considered as the property of the husband. The customary practices bequeath a man an unchallengeable right over a woman’s body which sanctions to use violence in cases the demand is not met. It is so believed, rather assumed that a woman consents to everything that happens to her within her marriage once she is tied to this institution.   

According to the Centre for Constitutional Rights, marital rape involves acts done against wife’s wishes either by physical force or by threat of force sex or making her fear that she will be harmed if she resists. The husband may use psychological or emotional abuse to make her comply. He may use coercion, verbal threats or physical violence to force his wife to have sex with him. Thus, it is the husband’s aggressive attempts to assert control to dominate over his wife. Taking sex by force when wife is asleep or sick is also marital rape. It may be argued against ‘marital rape’ as an offence, that consequent to marriage between the spouses, the husband acquires an unquestionable right to intercourse with his wife and it is her duty to submit to his wishes. This right cannot be retracted by the wife as husband acquires it by mutual matrimonial consent. However, in US the women activists opposed this age-old traditional view and raised their voice for elimination of marital rape exemption clause on the ground of gender equality.[1]

  • Marital Rape in India

Marital rape is different from physical and sexual violence. It is a betrayal of trust. The affected woman feels betrayed, humiliated and, above all, very confused. Marital rape, though a scar on the face of civilized society, has not been criminalized in India whereas US and other civil western countries have recognised it as an offence and the judiciary played an active role in providing relief to the women raped by their husband. Though, the Indian law recognises domestic violence against women as an offence but it is mainly confined to physical harm or torture rather than the sexual abuse of wife. The Protection of Women from Domestic Violence Act, 2005 which came into force w.e.f. October 2006, recognises marital rape as a form of domestic violence and therefore, attracts a lesser jail term than non-marital rape. Advocating criminalization of marital rape, The National Commission fa Women (NCW) observed- that rape must be recognized as crime whether by husband or a stranger. Reacting to the Government’s response in Parliament on March 10, 2016 that marital rape was unsuited in the Indian context, NCW member Rekha Sharma commented that “we can’t let women suffer in the name of religious beliefs. A rape is a rape whether done by husband or by outsider and punishment must be the same.”[2]

  • Why There’s a Marital Rape Loophole

Marital rape is a sensitive topic, difficult to measure anywhere, but even more so in India – where most sexual violence is believed to occur within families and goes unreported. According to the Indian government’s latest National Family Health Survey, about 30% Indian women aged 18-49 reported having experienced spousal violence. In terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

The fight to criminalize marital rape goes back decades but gained steam in 2012, when a brutal gang rape on a New Delhi bus shocked the world. The victim, who died of her injuries, became known as “Nirbhaya” – the fearless one – because under Indian law, her name could not be reported publicly as a victim of sexual violence.

Her case triggered a reform of India’s rape laws: A wider definition of what constitutes rape and longer prison sentences for convicts. Police departments across India have also added Nirbhayabrigades of female officers, who patrol dark streets at night.[3]

  • Types of Marital Rape
  • Force only Rape: The term “force only rape” describes a husband who uses threats and violence only to the degree necessary to coerce sex. This type of rape usually occurs in relationships where violence is predominately verbal, and/or in relationships where violence occurs only in sexual interactions.
  • Battering Rape: When beatings and rape are combined, it’s referred to as “battering rape.” The sexual abuse is part of the general pattern of psychological, verbal, emotional, economic, and physical abuse. Often the rape occurs as a continuation of the physical assault. In some cases, and the sexual act is also violent.
  • Obsessive Rape: The most openly sadistic form pf rape is called “Obsessive rape.” The abuser seems obsessive with sex, and the act itself is violent.[4]   
  • How to Stop Marital Rape

 Marital Rape Can be stop if there will be strict law and order. It should be criminalized as heinous crime, In India socially Customary Practice is Considered as Women is Husband Chattels. Therefore, in Marriage women consent is not important for intimacy relationship. Marital Rape will only completely stop when people mindset will change. First of all mindsets of people will only change by removing the traditional flaws which is superstitious, evil practicing & useless customs against women. Secondly, changing of mindset of a person, It should start from home by educating a child that women is not a chattels there rights and freedom should be respected in every ways of life. Thirdly, yet some educated people also do this heinous crime because of some bad/evil surrounding which also effects on human mindset, it can be change if a person surrounded with positive surrounding and good people. So, Marital Rape can be Stop if Mindsets of People changes in Proper education in Positive ways.

In my opinion, Since 75th years of Independence still women is not free and equally treated by some cruel man. Basic structure of Constitutional Law of fundamental right Article 14 Right to Equality & Article 21 Protection of Life and Personal Liberty is been violating day by day in increasing number. Government Should take major action against this cruel crime for betterment of upcoming generation.

  • Case Law

Nimeshbhai Bharatbhai Desai vs State Of Gujarat[5] Having regard to the position of law prevailing as on date in this country, the wife cannot initiate proceedings against her lawfully wedded husband for the offence of rape punishable under section 376 of the IPC. One of the origins of the concept of a marital exemption from rape laws (a rule that a husband cannot be charged with the rape of his wife) is the idea that by marriage a woman gives irrevocable consent for her husband to have sex with her any time he demands it. The issue with regard to marital rape shall be discussed by me a little later and, more particularly, when the same has been raised by the learned counsel appearing for the victim.

                                      

 

 

CONCLUSION

Marital rape is not fully criminalized in India. It definitely is a serious form of crime against women and worthy of government’s attention. It is a fact that women who are raped by their husbands are more prone to multiple assaults and often suffer long-term physical and emotional problems. In this context, marital rape is even more traumatic for a woman because she has to stay with her assailant everyday. As the consequences of marital rape are really high, there is clearly an urgent need for criminalization of the offence of marital rape. Positive legal change for women in general is happening in India, but further steps are necessary so that both legal and social change takes place, which would culminate in criminalizing marital rape and changing the attitude about women in marriage. There are many loopholes in Protection of Women from Domestic Violence Act, as the Act does not openly speak against marital rape. On the brighter side enactment of a specific legislation against domestic violence has opened the door for a legislation criminalizing marital rape. This clearly indicates shift in attitude of state which earlier believed in non-intervention in family sphere.

                                                       BIBLIOGRAPHY

  1. Prof.N.V.Paranjape, Criminology&Penology(including Victimology), Delhi/Central Law Publication/2021Edition
  2. https://www.npr.org/sections/goatsandsoda/2022/02/08/1047588035/marital-rape-india
  3. https://blog.ipleaders.in/need-know-marital-rape/

[1] (Paranjape 2021)

[2] (Paranjape 2021)

[3] (Marital rape is still legal in India. A court decision could change that 2022)

[4] (Roy 2020)

[5] (2018)

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