MARITAL RAPE: IS MARRIAGE A LICENCE TO RAPE?

INDIA IS ONE OF THE DEVELOPING NATIONS BUT STILL, THERE ARE SOME AREAS WHERE WE LACK BEHIND. ACCORDING TO NCRB DATA 2019 TOTAL OF 4,05,861 CASES OF CRIME AGAINST WOMEN WERE REGISTERED DURING 2019, SHOWING A TREMENDOUS INCREASE OF 7.3%. 70% OF WOMEN IN INDIA HAVE FACED DOMESTIC VIOLENCE IN SOME OR ANOTHER FORM. WHERE CRUELTY BY HUSBANDS OR RELATIVES IS 30%. SO, WHAT DOES MARITAL RAPE LOOK LIKE. 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.


IS THERE ANY LAW FOR MARITAL RAPE?

SECTION 375 OF THE INDIAN PENAL CODE DEFINES RAPE AS “SEXUAL INTERCOURSE WITH A WOMAN AGAINST HER WILL, WITHOUT HER CONSENT, BY COERCION, MISREPRESENTATION OR FRAUD OR AT A TIME WHEN SHE HAS BEEN INTOXICATED OR DUPED OR IS OF UNSOUND MENTAL HEALTH AND IN ANY CASE IF SHE IS UNDER SIXTEEN YEARS OF AGE. THERE ARE EXCEPTIONS THAT SEXUAL INTERCOURSE BY A MAN WITH HIS WIFE THE WIFE SHOULD NOT BE UNDER FIFTEEN YEARS OF AGE IS NOT RAPE. THIS KIND OF INEQUALITY SUPPRESSES THE WOMEN'S POWER AND VALUE

AUTOMATICALLY. ANOTHER ODDITY IS THAT MEDICAL PROCEDURE OR INTERVENTION SHALL NOT BE CONSTITUTED AS RAPE.



MARITAL RAPE INFRINGES

1. ARTICLE 14: MARITAL RAPE VIOLATES THE RIGHT TO EQUALITY LAID DOWN IN THE INDIAN CONSTITUTION.

2. ARTICLE 21: ACCORDING TO ARTISTIC INTERPRETATION GIVEN BY THE SUPREME

COURT, RIGHTS LAY DOWN IN ARTICLE 21 INCLUDE THE RIGHT TO HEALTH, PRIVACY, DIGNITY, SAFE LIVING CONDITION, AND A SAFE ENVIRONMENT, AMONG OTHERS. IF YOU NOTICE THAT MARITAL RAPE VIOLATES THE BASIC NEED OF AN INDIVIDUAL AND THOUGH IT IS NOT YET CRIMINALIZED. SOCIAL PERCEPTION FOR MARITAL RAPE.

PEOPLE HAVE THE MISCONCEPTION THAT MARRIAGE GIVES A HUSBAND AN IMPLIED CONSENT FOR SEXUAL INTERCOURSE. WHEREAS WOMEN END UP BEING PERCEIVED AS BABY-MAKING MACHINES WHERE THEIR RIGHT TO BODILY AUTONOMY AND REPRODUCTIVE RIGHT ARE SUPPRESSED BY THE HUSBAND.



AS INDIA IS A HUB FOR THE PATRIARCHAL SYSTEM AND WOMEN HAVE BEEN CONTINUOUSLY SUPPRESSED. DESPITE MANY AMENDMENTS IN CRIMINAL LAW, VARIOUS LAWS MEANT TO PROTECT WOMEN FROM SEXUAL ASSAULT AND DOMESTIC VIOLENCE HAVE REMAINED INEFFECTIVE. WHAT WILL BE THE CONDITION OF WOMEN IF WE KEEP SAFEGUARDING TO THE CULPRITS AND ENDANGER THE VICTIMS? THOUGH THERE IS NO LAW RELATED TO MARITAL RAPE THERE ARE OTHER LAWS THAT SAFEGUARD WOMEN. WOMEN CAN FILE COMPLAINTS ABOUT SEXUAL ASSAULT UNDER SECTION 498A AGAINST THEIR HUSBANDS. WHEREAS FOR WOMEN REMEDY FOR SEXUAL VIOLENCE IS ALSO AVAILABLE IN ‘THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.



RECOMMENDATION FOR CRIMINALISING MARITAL RAPE

AN JUSTICE J. S VERMA COMMITTEE HAD FORMED DURING THE NIRBHAYA GANG RAPE CASE IN 2012. JUSTICE J. S VERMA COMMITTEE HAD ADVISED THAT THE LAW SHOULD SPECIFY THAT A MARITAL OR ANOTHER RELATIONSHIP BETWEEN THE PERPETRATOR AND VICTIM CAN NOT BE A DEFENCE AGAINST SEXUAL VIOLENCE. IN SHIMBHU & ANR vs STATE OF HARYANA (2013) THE SUPREME COURT SAID GIVING OFFER TO A RAPIST TO MARRY THE VICTIM CAN NOT BE USED TO REDUCE THE SENTENCE PRESCRIBED BY LAW.



THERE is SOME LANDMARKS JUDGMENT OF EUROPEAN COMMISSION OF HUMAN RIGHTS IN C.R vs the U.K., WHICH CONCLUDE THAT “A RAPIST REMAINS A RAPIST REGARDLESS OF HIS RELATIONSHIP WITH THE VICTIMS. IN 2013, AN COMMITTEE ON ELIMINATION OF DISCRIMINATION AGAINST WOMEN (CEDAW) RECOMMENDED THAT THE INDIAN GOVERNMENT SHOULD CRIMINALISE MARITAL RAPE. MARITAL RAPE AND HISTORY INDIAN PENAL CODE WAS WRITTEN IN 1850 AND IMPLEMENTED IN 1860. DURING THE VICTORIAN ERA LAW WERE MADE IN INDIA. DURING THAT PERIOD WOMEN WAS NOT GIVEN ANY RIGHT AND THAT WAS THE REASON MARITAL RAPE WAS NOT RECOGNISED BY THEM. THAT IS THE REASON IN THE CURRENT SITUATION WIFE IS PRESUMED TO DELIVER PERPETUAL CONSENT TO HAVE SEX WITH HER HUSBAND AFTER COMING INTO A MARITAL RELATIONSHIP.



THE ETHICAL CONTROVERSY

MANY CASES HAVE BEEN IMPOSING PENALTIES THE JUDICIARY ASK FOR WEIRD SETTLEMENT. WHERE THE RENOWNED CHIEF JUSTICE OF INDIA ASKS THE RAPIST ‘WILL YOU MARRY HER’ IN A MINOR RAPE CASE? ACTIVISTS SAY, BY OFFERING MARRIAGE AS A SOLUTION FOR RAPE WILL ONLY DEGRADE THE MENTAL AND PHYSICAL CONDITION OF WOMEN. DOES IT DEPICT THAT THE JUDICIARY FAILED TO PROTECT THE RIGHT OF WOMEN? THERE WAS A CASE WHERE GIRL’S LAWYER WAS ASKED “WHEN TWO PEOPLE ARE LIVING AS HUSBAND AND WIFE, HOWEVER BRUTAL THE HUSBAND IS, CAN YOU CALL THE INTERCOURSE BETWEEN THEM ‘RAPE’.



WE MUST SEE THAT WHEN A WOMAN IS RAPED BY A STRANGER, SHE LIVES WITH HORRIBLE MEMORIES BUT IF A WOMAN IS RAPED BY HER HUSBAND SHE LIVES WITH A RAPIST. 1 IN 5 MEN HAS FORCED HIS WIFE TO HAVE SEX (AS PER THE INTERNATIONAL MEN AND GENDER EQUALITY SURVEY IN 2011). ACCORDING TO NFHS, ONLY 0.6% OF WOMEN FILED COMPLAINTS AGAINST SEXUAL VIOLENCE TO THE POLICE. SO, WE MUST CONCLUDE THAT THERE ARE VERY MUCH LOW CASES THAN OUR IMAGINATION THAT ASK FOR HELP FREELY. OVER 150 COUNTRIES ACROSS THE WORLD HAVE CRIMINALISED MARITAL RAPE. ONLY 36 COUNTRIES HAVE NOT CRIMINALISED MARITAL RAPE. SOME COUNTRIES ARE INDIA, CHINA, AFGHANISTAN, BANGLADESH, AND MANY MORE.



RECENT KERALA JUGEMENT

AN APPEAL OF THE HUSBAND AGAINST DIVORCE WAS REJECTED. A DIVISION BENCH OF THE KERALA HIGH COURT SAID THAT TREATING A WIFE AS HER PROPERTY AND INDULGING IN A SEXUAL INTERCOURSE AGAINST THE WIFE'S WILL IS NOTHING BUT A MARITAL RAPE. A VERDICT WAS PASSED BY A DIVISION BENCH OF JUSTICE A MUHAMED MUSTAQUE AND K EDAPPAGATH. IN THIS AN APPEAL WAS FILED BY THE HUSBAND CHALLENGING A JUDGMENT OF A FAMILY COURT GRANTING DIVORCE ON THE GROUND OF CRUELTY AND DISMISSAL OF A PETITION FOR CONJUGAL RIGHT

(RIGHT OF HUSBAND OR SPOUSE). THE COURT OBSERVES THAT MARRIAGE AND DIVORCE MUST COME UNDER SECULAR LAW. THIS IS ONE STEP FORWARD TO WARD OFF CRIMINALIZING MARITAL RAPE. AS SMALL STEPS HELP TO ACHIEVE HIGH VISION.



CONCLUSION

INDIAN LAW NOW CAN AFFORD TO SEPARATE BOTH HUSBAND AND WIFE AS INDEPENDENT LEGAL IDENTITIES. SO, ITS HIGH TIME FOR THE INDIAN CONSTITUTION TO EXPEL THE EXCEPTION THAT DOESN’T CRIMINALISE MARITAL RAPE AS A RAPE UNDER SECTION 375 OF IPC.



THIS ARTICLE IS WRITTEN BY RASHMI KUMARI OF IDEAL INSTITUTE OF MANAGEMENT AND TECHNOLOGY AND LAW IN KARKARDOMA

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