MARITAL RAPE: A LEGAL INFIRMITY

INTRODUCTION

Various social evils have existed in India since ancient times. One such social evil is Marital Rape. Matrimony is a sacred bond that ties together men, women, and their families.

But if the wedding is without the mutual consent of both families, it can turn sour. Our society is based on a male-controlled system from ancient times. So, it is natural for men to display emotions of supremacy. That’s why a wife is supposed to keep her husband always happy and make sure he doesn't have any relationships with another female . Our society started blaming women for not being able to give the required love, care, emotional, and especially bodily support that a husband needs from her. Our society is based on a patriarchal system. They don’t think about the woman’s situation, that it will be very difficult for her to show her willingness after marriage[1]. Also, she may be scared of being touched and having a sexual relationship.


MEANING

Marital Rape is nothing but a type of rape. When the husband commits sexual intercourse with his wife without her consent, it amounts to marital rape. Similarly, when the wife commits sexual intercourse with her husband without his consent, it also amounts to marital rape[2]. That’s why Marital Rape is a gender-oriented offense. There are hardly any cases found in the world in which the wife was an offender in the case of marital rape. Moreover, it is the husband who is the offender in the majority of cases. After marriage, most males understand that marriage gives them the right to have sexual intercourse with the wife at any time, whether she is willing or not. Marital rape may be considered domestic violence and sexual abuse. Marital rape is vicious, and the woman realizes that she has to live her whole life with the offender, which has a substandard physical and mental effect on her.


HISTORY

Numerous social problems have been present in India since ancient times, and one of the most crucial problems was marital rape.

In the Ramayana, we have seen that Sita Mata has given ‘Agnipariksha’ to show her purity of mind and love towards Lord Ram. Rather, Ram had not given any exam to show his love and purity of mind towards Sita Mata. So, from the very beginning, our society was considered male-dominated. Marital rape must not be seen as a modern process; its history goes back to ancient times. In ancient India, before marriage, women would be considered the property of the father, and after marriage, the property of the spouse. At that time, there were no rules or laws to protect women; they had certain rights, but they were unaware of them. Women can’t live an independent life.

They must work under the control of their husbands and are also available whenever they require the presence of their wives. Males always have a misconception that once they marry, they assume that they owe their wives. He has more rights over her than she has, and he gets the right to have intercourse with her anytime he wishes to, even if she isn't willing to do it. At that time, they assumed that women had relations with other men. They do not believe in the model woman. Marital rape has a very long history, including in ancient, medieval, and modern India.


EFFECTS OF MARITAL RAPE

Marital rape has lifelong consequences for women because the offender is the husband with whom she has to spend her whole life.

There are two categories of effect: (a) physical effect and (b) psychological effect.

(A) Physical Effect: Most women suffer from chronic pain as a result of rape. Physical effects include injuries to private organs, contusions, fatigue, broken ribs, and knife wounds. Women who have experienced sexual violence may experience additional complications such as marks on their bodies and blackened eyes as a result of the assault[3].

Few women also face bleeding from the vaginal tract due to marital rape, which leads to infertility and also suffers from HIV.

(B) Psychological effects: This effect includes situations of a woman when her husband repeatedly rapes her, which cannot be explained by her. For a woman, it was embarrassing to tell anyone else about the rape done by her husband. This may lead to shock, anxiety, depression, and suicidal ideation in a woman. If she was suffering from long-term psychological effects that led to sleeping disorders, intimacy problems, and negative self-image thinking,[4]


The Constitution of India and Marital Rape

Our country has innovation in almost all fields, and there have been many modifications and new laws in our country. But till now, marital rape has not been considered a crime in the country. All the laws or rules that are passed by the legislature or executive should follow the basic principles of the Constitution. If any law is disobedient to the doctrine of the Indian constitution, then it can be declared unconstitutional by the courts and legal Authorities. The method our courts have been formulating ideas of equality and equal safety under the constitutional law has been inadequate, and this has weakened the constitutional challenges to the marital rape exemption. Marital rape violates the Fundamental Right of a woman.


Violation of Article 14

Article 14 of the Indian Constitution ensures that "the state shall not deny to any person equality before the law or the equal protection of the laws within India's territory."[5] Even though the Indian Constitution provides equality for all citizens, Indian criminal law discriminates against women who have been raped by their husbands. Married women were not considered legal independents when the IPC was formed in the 1860s. Rather, she was thought to be her husband's property[6].


SECTION 375: Section 375 of the Indian Penal Code defines Rape. But as far as the evil of marital rape is concerned, there is no specified law.[7] Exception 2, of section 375 of IPC, is the only law in India that provides some kind of defense to the victims of marital rape. It states that if the husband commits sexual intercourse with his wife who is a minor, he can be punished for rape, but a major wife has no such remedy. Exception 2 of section 375 made a difference between married and unmarried women. In Budhan Choudhary v. State of Bihar[8]and State of West Bengal v. Anwar Ali Sarkar[9]The Supreme Court found that under Article 14 of the Indian Constitution, every classification must pass a reasonableness test, with the classification succeeding only if it has a rational link to the act's aim.


Violation of Article 21 Exception 2 is also a violation of Article 21 of the Indian Constitution. Article 21 states that “[no person shall be denied his life and personal liberty except according to the procedure established by law.” Under Article 21, many rights are provided to the citizens, including the right to health, dignity, a safe environment, sexual privacy, and human dignity. In the case of State of Karnataka v. Krishnappa[10], the Hon’ble Supreme Court held that “[sexual violence, apart from being a degrading act, is an unlawful interference of the right to privacy and sanctity of a female,” it further held that rape in itself is a serious blow to the self-esteem and self-respect of the victim and it degrades her, leaving behind a traumatic experience.


CONCLUSION

It has been concluded that our country has failed to protect women as in the past. Marital rape is not completely criminalized in India. It is not defined in any laws of India except section 375 of the IPC. The assumption that marital rape is not rape degraded married women’s suffering and defamed their souls. The idea that it is not rape is the only reason behind the crime receiving cultural and legal sanctity.Women who are raped by their husbands are more inclined to various effects. Marital Rape has lifelong consequences for women because the offender is no one else other than the husband with whom she has to spend her whole life. It was necessary for the criminalization of Marital Rape as an offense. The role of the judiciary is very important for the protection of women from marital rape. On the bright hand, the enactment of specific legislation against domestic violence has opened the door for legislation criminalizing marital rape. This indicates a change in the attitude of the state, which earlier believed in non-interference in the family scope.


-- [1] https://www.cordaid.org/en/news/we-are-all-victims-of-a-patriarchal-society/ [2] https://www.lawyered.in/legal-disrupt/marital-rape-non-criminalized-crime-india/ [3] Campbell, R., Dworkin, E., and Cabral, G., An ecological model of the impact of sexual assault on women's mental health. Trauma, Violence, & Abuse, 2009 [4] https://aifs.gov.au/resources/practice-guides/impacts-sexual-assault-women [5] India Const. art. 14 [6] https://indiankanoon.org/doc/42184625 [7] To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986). [8] Budhan v. the State of Bihar, AIR (1955) SC 191 (India). [9] State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India). [10] Karnataka v. Krishnappa (2000) 4 SCC 75 (India).



This article is written by Simran Mishra of Fairfield institute of Management and technology.

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