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The Reality And Existence Of Martial Rape In India

The recent verdict by Justice N K Chandravanshi in the Chattisgarh High court in the case of marital rape wherein he ruled that:
Sexual intercourse or any sexual act by a husband with his wife cannot be rape even if it was by force or against her wish and this has sparked controversy, however, multiple marital rape cases have been reported over the years but the features of section 375 have restricted the criminalization of marital rape and have discriminated women.

So what is section 375? Section 375 of the Indian Penal Code defines rape as a criminal offence. Sexual intercourse with a woman against her will or consent is considered to be rape. (The legal age of valid consent is 18 in India.) Under section 375(2) which exempts unwilling sexual intercourse with a wife over fifteen years of age from this definition of rape, making it legal for women( their wives) over 15 years to be raped by men

Indian Perspective on Marital rape

Marriage is considered to be a highly pure human tie formed by two people's mutual love and respect for each other and India follows the tradition of arranged marriage in India and most cases the girl is married off to a boy who is well off and educated but it so happens that some couples have difficulty in understanding each other and makes it difficult for them to adjust with each other and in some scenarios it may worsen and lead to an abusive relationship where the wife is abused mentally, physically and is almost trapped with no way out. This has been happening for more than a century and one such case is the case of Phulmoni Dasi.

She was subjected to excessive bleeding due to intercourse by a man in his mid-thirties (she was 8 years). Lawfully the husband should've been convicted for rape however he was not convicted for the same but for causing grievous hurt and only faced a year of imprisonment. This was part of the British colonial law era and over the years more than 100 countries have criminalized marital rape however India remains among the 36 which is yet to decriminalize it even after all the criticism and protests.

Types of Marital Rape

  1. Obsessive rape:

    These acts are physically violent and in most cases lead to injuries it is labelled as the most 'sadistic'. In some cases, people with OCD (Obsessive-compulsive disorder) may indulge and experience different forms of sexual obsessions too, such as incest bestiality or underage sex and in these cases, they may require help from professionals.
     
  2. Force only rape:

    Women are coerced into sexual activities by their wives usually occurs after the wives deny sexual intercourse.
     
  3. Battering rape:

    Almost 50% of the cases reported are under this, beatings and rape are combined and in some cases, the physical abuse and violence continue during the sex, and the sexual act is also violent.

Providing legal aid to those who cannot afford legal services and allowing victims to talk to each other, express themselves and allow them to be in a safe space by making them part of a support group can help support the victim.

How The Indian Legal system contradicts marital rape and laws:

Article 14- states that everyone must be treated equally and no person shall be discriminated against on the grounds of sex, religion, caste or creed. But in this, it is quite evident that men are given the upper hand and we can see a similarity in the adultery law (section 497) which was struck down, one of the main reasons being women are treated as chattels and this deprives women of their dignity

Article 15: Right to sexual privacy. Every woman is entitled to her sexual privacy and it cannot be violated. The case of State of Maharashtra v. Madhukar Narayan highlighted the case of women's privacy and ruled that it's not open to every and any person

PIL (public interest litigation) filed by independent thought was a landmark move as it challenged the validity of Exception 2 of Section 375. The exemption, it was contended, discriminated between married and unmarried female children, as the latter would be deemed rape while the former would not. It stems from a misunderstanding of two distinct concepts:
Consent to Marriage and Consent to Sexual Intercourse. They cannot be used as synonyms or interchangeably. An adult woman, if nothing else, has a greater understanding of the act of sexual assault. As a result, it is equally vital to safeguard married women over the age of 18 against rape.

In 2015 The Minister of State for Home, Haribhai Parathibhai Chaudhary, stated the marital rape could not be criminalized and further added that there is no proposal to make it a criminal offence and went on to say that marriage is sacred and marital offence cannot be made into a criminal offence. The then DMK M.P Kanimozhi even recommended an amendment to remove Marital rape from the IPC( Indian penal code) and a proposal to decriminalize it under the UN Committee on Elimination of Discrimination against women was later rejected.

Reasons And Arguments Put Forth By The Government

  1. It's against Indian culture and traditions

    Chief justice of India Dipak Misra stated that it should be made a crime because it will create a sort of anarchy in our families the grounds on which this argument is made is due to the socio-economic differences between the west and India. The government claims that, unlike in America, because the majority of Indians are illiterate, uneducated, impoverished, conservative, and religious, they think that a husband cannot rape his wife because a decent Indian lady will always consent to her husband.

    The government claims that this is the only roadblock to criminalising marital rape in India and that by admitting this, it recognises that lakhs of men violate their wives' sexual permission daily based on this attitude and that what they're doing is, in fact, rape. The government argues that criminalizing it would allow women to seek protection against their husbands and could also lead to these marriages falling apart. In contradiction to this if it were to be criminalized it would give women an opportunity to stand against their husbands and put an end to this sexual abuse.
     
  2. Marriage requires a woman's perpetual consent

    The notion or idea that once a woman is married she consents to never-ending sexual consent is deeply embedded in our society with almost 1 in every 5 women subjected to abuse of some form if people were to be convicted for marital rape it would've shown us what the reality is, and it seems to things haven't changed since the 1700s in which Matthew Dale of England declared that:
    The husband cannot be guilty of rape perpetrated by himself upon his legitimate wife, for by their joint marriage consent and compact the wife hath given herself over in this manner unto her husband which she cannot retract

    Despite an obvious contradiction in a 2018 Gujarat high court judgement that states:
    It has long been time to discard the idea of 'implied consent' in marriage.
    The law must protect all women's physical autonomy, regardless of their marital status.
     
  3. Laws against marital rape may be misused against men

    The government's reply to an affidavit submitted to the Delhi High court was that criminalizing marital rape would make it a tool to harass husbands. The same argument was made when Section 498A was enacted to protect women from being subjected to abuse and cruelty by the husband or his family, it was argued that women would falsely accuse husbands and misuse it, the fact that a large number of women are subjected to domestic violence was overlooked and in a case where the law has been misused the judiciary is there to look at the facts and evidence on the case and dismiss it if it turns out to be false.

    If this were the case women from a poor socio-economic background and disadvantaged women will be ignored on the basis that it is faulty, moreover they would not be able to get legal help and justice wouldn't be served to them.

Conclusion
Marital rape is a reality in our society, and many people suffer in silence since there are no legal protections and a severe lack of assistance for this horrible crime.

To assist victims in obtaining justice, Section 375 should be amended to remove the exemption and thereby outlaw marital rape. In the name of marriage and marital responsibilities, these women's basic human rights are infringed. The belief and concept that a woman is the husband's property are fatal to women's standing in India.

Due to a lack of legal provisions, they are unable to take any action and are compelled to suffer in silence. We need to spread more awareness about this issue and educate people. One of the major goals of marital laws is to sustain marriages and public trust in the institution, however, this goal cannot be achieved at the expense of women's fundamental and human rights.

Women have the right to physical integrity. As a result, denying justice. The law's entire inability to safeguard the sanctity of weddings is a total failure of the law to protect its sanctity. citizens. The law should neither encourage nor support forced cohabitation or rape by the husband. The consequences of criminalising marital rape in India, on the other hand, cannot be overlooked.
Also Read:
  1. Marital Rape
  2. Marital Rape versus Conjugal Right
  3. Does Section 375 of IPC Include Marital Rape
  4. Marital Rape: Is marriage equal to Consent?
  5. Make Marital Rape An Offence: Delhi Court
  6. Marital Rape And Its Current Legal Status
  7. Marital Rape Situational Analysis
  8. Why Marital Rape Must Be Criminalised
  9. Marital Rape - A Justified Crime In India
  10. Rape an Offence, Marital Rape an Exception: Marital Rape in India and Right to Privacy

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