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Marital Rape: A Legalised Crime

India and Indian law and its recognition towards the rights of a women have evolved over a period of time and abundant has changed over decades and it has been possible because of judicial activism, understanding the scope and relevance of human rights and right interpretation of the term equality to a certain extent. Although feminism is mis-interpreted by many and the whole phenomena has created a social stigma it has failed in certain areas.

Women are still subjected to cruelty, no doubt there are women that have mis-used the provision against cruelty but the question is what about the women who are denied justice against a legal crime called marital rape. What if marital rape is amounting to cruelty? Many judgements say that a woman gives consent to sexual intercourse at the time of marriage therefore making it a mutual and consensual one.

Many women are unable to even realise the fact that they are subjected to cruelty every time they are being forced in so many ways example if an intoxicated man forces himself on his wife in way that she has suffered both physical and mental pain and man takes the defense of marriage after such abuse. Isn't this a clash to with the main purpose of article 21 of the constitution?

What Is Cruelty?

According To IPC
Any intentional, deliberate, wilful act against a woman by her husband or any of the relatives of the husband which drives her to commit suicide or causes any harm to her either mentally or physically. Harasses her mentally or physically with an intention to coerce a woman into meet unlawful demands like property or security etc or harassing a woman on account of failure of fulfilling a demand.

Now if a man uses force against his wife in lieu to any of the abovementioned intentions and causes same or even worse impact on her and gets a way out as it is a right of a man as per the law and continuously subjects her to the same and takes the shelter of immunity under section 376 for marital rape then a woman has no resort against such abuse and cruelty.

According To Judiciary
In case of as Jayachandra vs. Aneel Kaur (02.12.2004 - SC) : MANU/SC/1023/2004 cruelty was interpreted as a willful and unjustifiable act that has caused danger to life limb or HEALTH or mentally or such act has given rise to a reasonable apprehension of a it was further held that cruelty can be physical, corporal or mental or any act of a spouse that has considerably and legitimately caused harm to the mental welfare of the other spouse will amount to cruelty.

In a very broad sense it was also held that "cruelty may be mental or physical, intentional or unintentional" the meaning and scope of cruelty and its interpretation has increased enormously without the judiciary has been considering every aspect that can amount to cruelty. A women no doubt has consented to have sexual intercourse with the husband but she in now way owes her body to the husband or anybody as an individual it is her right against her body and dignity.

In another case of S. Hanumantha Rao vs. S. Ramani (31.03.1999 - SC) : MANU/SC/0220/1999 it is held that cruelty is an act of a spouse resulting in causing mental pain which results in making it impossible for the other party to live with the spouse.

In another case of Shobha Rani vs. Madhukar Reddi (12.11.1987 - SC) : MANU/SC/0419/1987 it was held that cruelty in matrimonial proceedings need not necessarily require the element of malignity, it was defined as an act of a spouse that adversely effects the other and such act can either be intentional or unintentional.

The meaning of cruelty might differ from case to case depending on the situation and circumstances it does not have a rigid and a definite meaning. We have to bear in mind the purpose behind the purpose behind the enactment of a provision of 'cruelty' to protect women.

What Is Rape?

According To IPC
If a man penetrates any penetrates any thing in the vagina, urethra, mouth or anus of the body without her consent it will amount to rape. As per IPC. Consent and force are the two key words that are to be pointed out to throw light to this context from the elaborate explanation under section 375 of IPC.

According To Judiciary
Madan Gopal Kakkad vs. Naval Dubey and Ors. (29.04.1992 - SC) : MANU/SC/0509/1992 it was held that it was held that women woman in our country unfortunately are un a disadvantaged position in the society due to several social barriers and impediments therefore the become a victim of tyranny at the hands of men though they enjoy equal status as men constitutionally.

Women also have right to life and liberty. It was further held that rape is not a crime only against a woman it is a crime against society it destroys the psychology of a woman and pushes her into deep emotional crises. And rape is the most hated crime in the society it was also held that rape is an act violating a basic fundamental right given by article 21 of the constitution. As per the psychiatrists' rape is less of a sexual offence than an act of aggression aimed to degrade and humiliate a woman.

In a case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 it was held that the licentious and profligate conduct is not considered a part of normal conjugal life. Therefore insatiable urge for wealth and sex of a spouse would amount to cruelty.

As per a research conducted by WHO 27% women have suffered sexual violence and succumbed and the average age of those women was 15-49 violence against women globally and it being legal against a wife makes woman more vulnerable to such crimes. Another study of 930 San Francisco found that there were around 8% of survivors against marital rape while another study of 323 10 percent were married women cohabiting with each other were survivors of marital rape.

Another study by UNODC United Nations Office on Drugs and Crimes concluded that developing and implementing effective strategies to combat gender-based violence and legislation to address, sexual violence and marital rapes can provide tools to protect women undergoing such suffering and to insure there is no impunity for such crimes. After Universal Declaration of Human Rights and Convention on Elimination of all forms of Discrimination against Women (CEDAW) 17 countries have made marital rape a criminal offence.

Constitutional Approach
Article 14 of the constitution provides:
Equality before law, and equal protection of law, but with an exception of reasonable classification. How is it any different if a woman is raped by her husband suffering equal or more danger, mentally and physically. Is it giving right message to the youth of the country to legalise such a huge and terrible act?

Reasonable classification must be based of Intelligible differentia and the differentia must have rational nexus. When a woman has suffered similar damage and harm and her dignity is taken away as though a woman owes her body then is it an intelligible difference to make 2 different classes of these woman.

No doubt the provision might be mis-used but it the duty of the court and the investigators to determine if the provision is mis-used or there is actual crime committed. The whole purpose of the justice system with respect to that woman is vitiated if a crime against her body and her dignity is not considered.

Recent Development
Judiciary to a very first step in considering plight of these women suffering marital rape in the case of X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021 it was held that marital rape is a valid ground for divorce therefore criminalising it.

It was held that:
Treating wife's body as owing to husband and committing sexual act against her will is nothing but marital rape.
It was also held that the present law of divorce in India has to stand the test of constitutionality as it depicts a sordid tale of a woman losing a precious part of her life In a battle. It further held that the struggle if a woman within clutches of law to give primacy of choice not to suffer in the bondage of legal tie.

Conclusion
Marital rape is not just a legal crime it does not even stand as a valid ground of divorce. Which means a woman cannot even seek divorce if she is subjected to marital rape. She is forced to continue the relation, cohabitation and marriage. Marriage no longer remains a bond but becomes a burden on a wife. Is this contract of marriage so absolute that the constitutional right of a women could be violated? It is right of every single individual in the country to live life with dignity and liberty and it should not be taken away merely because a woman is bound by a marriage.

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