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Criminalization of Marital Rape in India

Marital Rape is a term which is used to describe a sexual act committed by the husband without the wife's consent. Usually, some husbands sexually exploit their wife to prove their dominance and strength. This forceful act violates the basic fundamental rights of the women in our country. The fundamental right to life is violated by raping and threatening the chances of the wife to live.

The fundamental right to privacy is violated when the husband isn't considerate of the wife's personal space and does not take her “no” into consideration. Lastly, the 'right to equality' is violated when marital rape is not seen as a type of rape. In India, this situation has reached its peak and should now be considered as an offence with serious punishments. Thus, it is important to criminalize marital rape in India.

Section 375 of the Indian Penal Code defines rape and considers it as an offence. Whereas, the exception (2) of section 375 of the Indian Penal Code, 1860 states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 198 (6) of the Code of Criminal Procedure states that there should be no offence taken under the section 376 of the Indian Penal Code,1860 where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.

These sections normalize the marital rape culture which is supposedly 'not' normal and these sections should be struck down so that the normalization of the marital rape culture stops. In the eyes of law, marriage is considered as a shield and sanctum; thus these provisions do not deal with marital rape. Hence, India needs specific provisions for the victims of marital rape.

According to the statistics, 52 countries in the world have criminalized marital rape and have considered it as a criminal offence[1]. In the case of R v L [2], the Australian courts stated in their judgment that a husband could be found guilty of raping his wife. Whereas, in the case of R v J.

A [3], the judgment stated that 'the relationship between the accused and the complainant has nothing to do with consent for sexual intercourse. A husband or wife may be charged with an offence under the Criminal Code regardless of whether or not they were living together.

Later, in 2001, a petition was filed by the Forum of Women, Law and Development (FWLD) in the supreme court. The decision ruled by the supreme court stated that marital sex without the consent of the wife is marital rape and is punishable under law. Therefore, even Nepal declared that marital rape is punishable under law. If these countries could criminalize it, then why can't India do the same? A woman should always feel safe within the four walls of marriage and it is about time that the judiciary of India acted upon this issue and protected the marital rape victims of our country.

Marital rape should be considered the same as rape. Emotional consequences of both the crimes are the same, thus the provisions of punishment should also be the same. Rape is considered as the most agonizing amongst all the acts of crime committed against a woman. But what is more shocking and horrifying for a woman is to have her self-esteem crushed by a man who is supposed to love and nurture her, her husband.

A marriage should not be considered as a permit by a man to satisfy his sexual desires. It greatly affects the self-respect and dignity of a woman. Not considering marital rape as a punishable offence is the same as forcing a rape victim to sleep with her rapist on the same bed every night. This is not only a question for the law but, more importantly, an appeal for humanity. Disturbing as it sounds, imagine how the victims of marital rape deal with this torment every day. Adding to this, the sole reason why the wives have to suffer in silence like this is because of the judiciary, which still doesn't consider it as a rape.

The Indian society strongly believes that after a marriage, a man can use his wife to fulfill all of his sexual desires while the consent of the wife is always implied. Victim's relationship with the rapist should not even be a question; rape can't be categorized on the basis of the relationship the perpetrator and victim share. The idea that needs to be normalized in today's world is the consent of both, the husband and wife. A man should accept that “NO MEANS NO”; if the woman does not want to get involved in a sexual act, he must not consider it as a challenge to satisfy his pride by forcing her.

A husband raping his wife should be punished as severely as any other rapist is punished. Just because they have a marriage certificate, it doesn't give him the license to commit such a heinous crime. In these circumstances, the society could play a humanitarian role by supporting such women. Instead they are too busy giving the wrong advice, asking her to save their marriage by not filing a complaint against the husband. Darling, you've married him.

He can do whatever he wants to with you. He's earning for the family; this is the least you can do. So, don't be naive and let him do what he likes. this is what the women have been hearing from their elders or sometimes even their mothers, because divorce and absolution of marriage is another topic which the society shys away from.

According to the statistics, marital rape is more common in the rural areas where marriage is considered as a free pass to commit this crime. Rape, being one of the most outrageous crimes, puts a girl's life to threat, because of which the rapists get either a life imprisonment or a death sentence. But it is not the same in the case of marital rape. The only way things can change is when we are successful in changing the mindset of the people who normalize the culture of marital rape.

Article 14 and 21 of the Indian Constitution states the right to equality and right to life respectively. Marital rape violates both these fundamental rights and also the right to privacy to an extent. The Puttaswamy judgment made it very clear that fundamental right to privacy of every individual is guaranteed by the Constitution of India within the article 21 in particular and part III as a whole. So, if right to privacy is a fundamental right then why is it acceptable for the husband to infringe it?

Isn't the wife entitled to her personal space at home? Why can't she raise her voice against the violation of this fundamental right? Why is it so difficult for us to realize that because of this patriarchal society, women are suffering the most? In respect of the Puttaswamy judgment, the judiciary should enlighten themselves with this issue and take steps to act upon them. Marital rape is the betrayal of love and trust, leading to severe mental and physical trauma which is merely impossible to overcome.

It is believed in the Hindu culture that in a marriage, all the issues and fights between the husband and wife should stay within four walls whether they are sorted or not. But, an injustice like this should not be kept hidden within those four walls as it can be very traumatizing and can affect the wife's mental health completely.

According to the society, breaking of a marriage has always been looked upon as an unholy thing and a social taboo. Our society considers a marriage as a fairy tale with a happy ending turning a blind eye to anything that proves otherwise. But what the society needs to understand is that such issues faced in a marriage are not normal and what the wives go through is not what they deserve.

So, if a wife files a complaint against the husband on the charges of marital rape or domestic violence which later leads to their divorce, the victim should know that the divorce isn't her fault and a marriage where she has been raped is no excuse to continue suffering.

The man should be blamed for this as, by marrying him, the wife did not sign up to be treated like a piece of meat to fulfill her husband's desires. As humans our priority should be on how to take care of the victim, telling her about how she doesn't deserve to be treated that way instead of forcing her to live with her perpetrator for her entire life. For the betterment of the society and the health of these victims, such matters should not be kept within those four walls and the rapist, regardless of being her husband, should be subjected to the same punishments.

There have been cases where even our law thinks that the marriage is of the utmost importance and it shouldn't be destroyed. “One of the cases is of Harvinder Kaur v Harmender Singh[4], where the court commented upon the applicability of the constitutional rights, mainly that of Article 14 and Article 21 within a family. It stated that, “introduction of Constitutional law in the home is most inappropriate.

It is like introducing bull in China shop. It will be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and married life, neither Article 21 nor Article 14 has any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of cold principles of Constitutional Law will have effect on weakening of marriage bond.”

“This case was later challenged in another case of Sareetha v T Venkata Subbaih[5], failing to improve the situation. The Apex Court then later commented upon the same matter in the case of Saroj Rani v Sudarshan Kumar Chadha [6]by saying that “the introduction of equality clause within home will destroy the institution of marriage.”

In India, according to the laws which are made for the citizens, the main motto is that no innocent should be punished even if it means to let the guilty walk away. Adding to that, it's important that the woman of the country start pleading for punishment against marital rape as it is an urgent need now.

The main issue to be raised by the women in the country should be that is rape considered to be a violation of a fundamental right? If yes, then why do the laws and the society differentiate between a husband and a stranger? In this century, women are considered equal to men in all respects, such as education and the opportunities. Then, why is a married woman not protected against marital rape?

The problems stated by the society are that if the marital rape is criminalized, it would break the marriages and also men could be wrongfully tortured due to that law. But, just because of these misconceptions, it becomes difficult for the women to raise their voices.

Our law keeps changing according to the society's needs and requirements. It is not static and to get a change in our judiciary system, all the citizens should understand the consequences of marital rape and only then could it be criminalized. It is first the mindset which has to be changed in accordance to expect the criminalization of marital rape. There should be laws to protect the victims of marital rape as this issue is reaching its peak at an alarming rate.

It is unfair for a woman to suffer in a marriage where she feels trapped and dies a little every morning when she wakes up next to her rapist. Hence, India needs to give justice to all those wives who can't speak up because the judiciary does not call marital rape an offence punishable under law.

End-Notes:
  1. 52 countries criminalized marital rape, hc told
    https://www.business-standard.com/article/news-ians/52-countries-criminalised-marital-rape-hc-told-118010201102_1.html
  2. (1991) 174 CLR 379
  3. (2011) 2 SCR 40
  4. AIR 1984 Delhi 66
  5. AIR 1983 AP 356
  6. 1984 AIR 1562

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