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Rape Which Is Legal

The woman is a term which has a wider definition in our ancient history and even in religious perspective as well as their contribution in Indian freedom struggle or framing a nation and even has the capacity to turn the legislative framework into judicial activism.

If we talk about the east that we often called a south Asiatic nation, the pivotal values and dignity that is given to a woman are more or we can say comparable to god but sometimes judicial interpretation or we can say as judicial activism may have the capacity to downgrade or upgrade its values. Here I will talk and analyze the surprising topic that how and when rape can be called legal and it's all about marital rape.

Marital rape is a concept in which women mayor have to forcefully act to be a part of sexual intercourse where the definition of sexual intercourse is maybe put out from biological perspective as penetration of penis inside a vagina is mandatory and here the will power is one of the pivotal factor that mainly defines rapes or sexual constant but here the issue is is it legal or moral that post-marriage is a woman is bonded to experience marital rape if she has no consent during a moment or a specific time period and is his partner have the constitutional obligation to force her in the eyes of the law to bed.

If we analyze the data of marital rape in India its is not clearly mentioned in theory but in practice, it is empowering itself in the form of kerosene fire or a protest psychologically.
As per the constitutional provision, it is a violation of articles 21,14,19 and even some principles of directive principles of state policy where we can interpret that right to life and it is the duty of the state itself to provide the same.

But here the issue is India is framed on the knots of its traditional culture of patriarchal and communitarian society which may have both positive and negative impacts on the nation itself. In fact, one of the other main issues is that many of the global nations have the provision to legalize marital rape and we can observe this as a countermeasure policy against feminism or the rise of might is right in societies and it can be linked with human psychology behavior in context to men and according to a research ego factor or conflict of interest play a wider role and even programming from external factors like following communitarian religious practices and reflecting the psychological phenomena of reflexive equilibrium in which the past trauma incidents or present anger clashes reflect to harm anyone can release stress so this is also a factor for this.

Another is reproductive rights and awareness regarding sexual consent and legal perspective so if we analyze the rural areas and won't be so happy if I am not taking urban mirror as both of them experienced this type of examples as in most of the houses reproductive rights are not women rights as they are patriarchal or even we can call it as dictatorship protocols as orders were given not choice is provided.

And according to the national health family survey for 2005-2006, 5.4% of married women have faced marital rape and 4% experienced it in just 12 months.[1] so just have a guess that in spite of marrying through various religious laws no matter whether it is the Hindu marriage act or Muslim law both are facing the same issues. Economic dependence and fertility issues are some of the issues that need to be handled out and for that government of Indian has initiated many schemes like Beti padhao and Beti Bachao but recently it comes under audit as corruption and men's ria to reduce awareness was objected.

Indian penal code which handles rape or we can say that IPC was framed in 1880 and during that period marital rape was given a no factor of sin as it was registered by the administration that women are a part of the husband and she has overall obligation to fulfill his physical needs.

And on the one hand, we have laws to protect rape under section 375 and it has basic beautiful eligibility and that is 1[375.

Rape: A man is said to commit Rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
  1. Against her will
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law�fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe�fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.][2]

So marital rape is also against her will, without her constant, even in this case if we analyze if forceful sexual intercourse after marriage is also initiated and as per human biological perspective female will respond to resistance and in the hypothetical situation fears inherits in the mind and even it may happen that internal vaginal injuries may happen or even external because lack of interest doesn't infuse lubrication hormones. So third is also fulfilled.

The issue is the fourth point recognition of the husband and this is the only root cause of the issue as if we analyze Hindu marriage act in terms of Sacramento in nature then women have no choice and if we analyze Muslim laws they also faced the narrower issues in context to vulnerable sections.

Recently there was a case of marital rape and Chhatisgarh High court acquitted a man on marital rape bu rilling that sexual intercourse between legally married women is not to be classified as rape no matter it is done by the index of force.[3]which is framed under section 376(carnal intercourse against the order of nature) and section 498A(cruelty towards a wife by a husband or his relatives).

The honorable court upheld the sections on grounds that it will dismantle the culture and beautification of marriage on which Indian marriages are bounded and it may be I interpreted that if we legalize this then the index reports of futuristic of divorce will be on waves unlike covid or as omicron variant is spreading its values.

Another concept was given that marriage is a sexual relationship and if its stands for sexual relationship for a long binding perspective then how living relationship sexual obligation is found to be unconstitutional if proven in the eyes of law.

There are other rules and provisions that may bring a husband in the case of molestation, sexual harassment, voyeurism, etc but punishing on the marital rape would be quite difficult. In Joseph Shine v. Union of India (2018),[4] the Supreme Court held that the offense of adultery was unconstitutional because it was founded on the principle that a woman is her husband's property after marriage.

The marital rape exception betrays a similar patriarchal belief: that upon marriage, a wife's right to personal and sexual autonomy, bodily integrity, and human dignity are surrendered.

And one of the important judgments is the supreme court in the state of Maharastra v/s Madhkar Narayan, it held that every woman is entitled privacy and it is not open for any and every person to violate and here every person definition should be clearly mentioned but it doesn't mention that it will pay its obligation to husband or not.

Even marital rape violates article 14 of the Indian constitution and there is a difference between married and unmarried rape victims .so there is a judicial mismatch or conflict that may be overlapping in nature but doesn't have a uniform ground for every territorial jurisdiction. On the one hand, we are increasing marriage rights and on the other rapes are been legalized on the bed on the ground of marriage.

Kerala high court had noted treating a wife's body as something owing to her husband and committing sexual acts against her will is nothing but marital rape. It is a violation of article 17 and individual autonomy.
Delhi high court observed that both partners have the right to say no and even the justice Verma committee recommended for the criminalization of marital rape. but still, we have the religious and cultural defense and social governance that need to be evaluated.

So let think about this as we can also observe that domestic violence had also been increased as per national human rights we need to frame scientific temper and also expand judicial scholars, activism so misuse should be framed either on the court or in the bed.

Every year, 25 of November is observed as the international day for the elimination of violence against women and this year the theme is generation equality stands against rape despite the safety and security of women have accorded utmost priority by the government in India and several steps taken over the years to tackle the issue, violence against women continues being an obstacle in achieving equality, development, peace, and fulfillment of women.

The other side effects that women face in this case is that they sometimes go through mental health down gradation and symptoms like PTSD, depression and obsession infuses their mind which violates article 21 of the Indian constitution and article 21 if we may interpret as the golden backbone of India constitutionalism structure then the judgment regarding the same shall be individualistic and balanced in nature. there are numerous issues like if we frame a legislative law for it it may lead to misuse of the subject itself and which would lead to an infusion of section-498A and thus to countermeasure this we again need to interpret the law by the time or according to the demand.

According to the world health organization report, one in every three women and girls experienced physical and sexual violence in their lifetime, most frequently by an intimate partner. But the point is how many of them got recorded as per the crime records bureau (NCRB) report of 2017. 94 percent of the rapes were registered under cruelty by husband or relatives. However marital rape is not identified in India.

Let's analyze some IPC sections by which we can provide a defense to this article is a strong mirror as we all know that under section 97 every person has a right, subject to the restriction contained in section 99, to defend and it mentioned two subjections that is to defend his/her own body against any offense affecting the human body and if there is a mention of the human body so is female reproductive organs doesn't come under the human body as it is one of the pivotal and sensitive organs and other section read under 98 to right to private defense against the act of a person of unsound mind and if a partner is forcing her partner to have forceful sex then it may have other biological factor but in case if due to any other mental health issue even he can initiate the act and we can provide him to be accused.

And maybe there are some exceptions unlike which is done or initiated in a good faith so does that faith need to be controlled by the judiciary if it aims to violate human rights on a ground of choice as to if yes then it will violate article 17 and again article 21 of the Indian constitution. And let's deal with section 319 whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt.

In this case, if the intention is to provide hurt is known then it comes under this act as forcefully constant is similar to clear intention or men's ria then also it comes under the offense.

One of the other issues to reframe a uniform code to reduce this unregistered or utopic crime is religious interference as there are multiple opinions regarding marriage under various acts and if the judiciary tries to intervene then it would act as an institution which would violate section 295A of Indian penal code if we for a moment project it as a living citizen as 295A.

Deliberate and malicious acts intended to outrage reli�gious feelings of any class by insulting its religion or reli�gious beliefs:
Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.][5]And it even may happen that this section may be framed or charged on me as we all know how the quality of scientific temper environment we all are living in but is written in good faith so exemptions is provided. And in the case due to marital rape if a woman due to down gradation in her psychological and emotional factor if she commits suicide then we can also put section 306 abetment of suicide.[6] Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

My last and pivotal argument is section 312 and that is312. Causing miscarriage.-Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprison�ment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.-A woman who causes herself to miscarry, is within the meaning of this section.[7]

Let's look at this section carefully, if due to marital rape if she got pregnant and due to this his partner asked her to go for miscarriage due to any economical or patriarchal mindset or choice then here is faith is right or wrong? if yes then it's okay and if no let's think.

I am not saying that everything should be biased and tilted in favor of feminism idealogy or masculinity but if there is misuse by any grounds which can be improvised then we can altogether form a just society better.

End-Notes:
  1. http://rchiips.org/nfhs/NFHS-3%20Data/VOL-1/Chapter%2015%20-%20Domestic%20Violence%20(468K).pdf
  2. https://indiankanoon.org/doc/623254/
  3. https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-an-indignity-to-women
  4. https://indiankanoon.org/doc/42184625/
  5. https://indiankanoon.org/doc/1803184/
  6. https://indiankanoon.org/doc/92983/
  7. https://indiankanoon.org/doc/1990693/

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