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Marital Rape Law: Is It Really Required?

Marital rape is an act of sexual intercourse with one's spouse without the spouse's consent.

Every so often, our society has been witness to crimes against women in various forms, whether it be sexual assault, harassment, criminal offense, or other forms of offense. We have once again found one such instance of crime against women.

Marital rape has become one of those controversial topics which is being debated upon endlessly. Some being in the favour of criminalisation of marital rape whereas some being against it, citing out possibilities of the law being missused and how it can be weaponised to make man vulnerable.

What is the ground reality, is such a law really needed? When there are already a number of laws that protect married women, such as domestic violence laws and provisions against harassment and sexual assault.

Statistics show, more than two-third of married women in india, aged 15-49, have been beaten, or forced to provide sex, regardless of their socio-economic positions.(As per the UN population fund), 1 in 5 men has forced his wife or partner to have sex. (As per international men and gender equality survey 2011).

Over 104 countries across the world have criminalised marital rape. India still being an exception, lies among those 36 countries of the world where a brutal offence like rape, if done by own husband is not a crime. Marriage does not justify rape, it is not a license to rape.

Being part of the wedlock does not permit the man to forcefully have sex with his wife, it should be consensual. Wife has a right to live with dignity and self-respect, to live free from any mental or physical torture. And marital rape is both a mental as well as a physical torture, Having a husband perform such an act breaks trust, break faith, and is a huge take back for a woman who has entrusted her whole life to such a man.

The question remains whether the martial rape should be criminalized as it is or whether it should be subjected to some conditions as the risk of it being abused cannot be overlooked.

Marital Rape, laws at hand in India

Section 375 of Indian Penal Code defines RAPE as, "Sexual intercourse with a women against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she is intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age". Providing exceptions to the law section 375 (2) says, "sexual intercourse or sexual act by a man with his wife, the wife not being under 15 years of age is not a rape". As defined section 376 of IPC states as:
  1. whoever, except in the cases provided for in the sub section (2), commits rape, shall be punished with rigorous imprisonment for a term which shall not less than 7 years , but may extend to imprisonment to life, and shall also be liable to fine.
Articulating that non-consensual sexual intercourse by the husband with his wife unless she is under 15 years of age is not a rape.

Making the consent of a married woman over 15 years of age immaterial. Also the punishment for rape of under 15 years of age wife by his husband is milder in nature. Giving no legal security to a married woman after the age of 15, which is against the basic human rights of a woman. Such a law also raises questions of it being contradictory, when legal age of a woman to get married is 18 then why the shield for case of sexual mishandle is for those who are only upto age of 15.

However sec 376B provides for wifes living separately after a legal decree, which says that if a man has sexual intercourse with a wife, living separately after a legal decree, but without her consent, he shall be punishable with imprisonment ranging from two to seven years in addition to a fine.

But this has failed to mollify feminists, who say the non-inclusion of forced sex within marriage is abominable. Even though sec 376B addresses the concerns of the wifes living separately but what about those who suffer daily sexual indignities even while seemingly being in a legally valid married relationship?

The Protection of women from Domestic Violence Act, 2005, provide some relief to the suffering women, under this act women can seek for relief from marital rape by court which may give solutions like legal separation or annulment of marriage itself.

Also sec 498 A of IPC acts as last resort for women being subject to such cruelty says:

Whoever being the husband or the relative of the husband of the women, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Effects of marital rape has more severe and long-lasting consequences for woman because of the simple fact that the rapist is none other than her own husband. There are physical effects and psychological effects which many are unable to overcome and make such a woman spend her life in trauma. Do these milder laws provide the necessary relief when considering the effects of marital rape?

Petitions filled in court to criminalize marital rape

A batch of petitions challenging the exception 2 to section 375 of the IPC were filed in the Delhi high court, making the case of RIT Foundations & ors. v. Union of India. The petitioners include the RIT foundation, the All India Democratic Women's Association(AIDWA), and survivors of marital rape. Where heated arguments are being presented by both sides before the court.

The arguments of petitioners include the following:

  • Idea that marital rape is "controversial" reflects patriarchy in law and society.
  • Problem of marital rape is foundationally linked to question of forced marriages and criminalisation of love.
  • Opposing marital rape on grounds that it's against indian culture won't create a culture that values consent in sex.

Conversely, arguments against such a law include:

  • After entering the bedroom together, it's impossible to determine when consent was withdrawn by the wife.
  • If all sexual acts by man with wife qualify as marital rape, then judgement as to whether it is marital rape or not will singularly rest with the wife.
  • Criminalising sexual acts in marriage will impact family system and country's social fabric, and is prone to gross misuse.
With such arguments being presented before the Delhi High Court, let's wait and watch, what kind of judgement will the court give.

It is not the first time that such an issue has come to the light, in the past also there were many such cases where the courts have taken minor steps and even such a law was suggested by law commissions.

In a case The Kerala High Court delivered a landmark judgement deeming marital rape to be a valid ground for divorce.

In 2012, the government formed a panel led by justice j.s. Verma to propose possible amendments to the criminal law to provide quicker and enhanced punishments to the criminals committing sexual assaults of extreme nature against women. As the commission finalised its report within 29 days, it was considered to be a historic document. The report suggested wide range of changes, 'the exception for marital rape be removed' being one of those recommendations.

While these recommendations helped shape the Criminal Law(Amendment) Act passed in 2013, its most radical suggestions, including on marital rape, were swept under the carpet. The committee also made a statement saying, "the law must specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violations".

Apprehension of marital rape law being misused

While talking about how much our society is in need for a law criminalising marital rape, the prospects of it being misused are also to be considered. As true is the sufferings of those women who are being victim to such a crime, so is that of those men who are being the target of false charges of having committed such a crime.

There have been multiple cases where wifes have filed false charges against their husbands in order to seek divorce and a huge amount of compensation. Such claims not only result in men being extorted for money but also him being defamed and disgraced in his society, it also causes similar defamation problems for his family.

Even though it is a legitimate concern, it has been played down by the fact that every law can be misused; so is such a concern a valid ground not to bring a law.

This argument looks fair on the face of it, but ground realities cannot be ignored while bringing a new law if we are truly concerned about equal rights of every citizen.

Giving rise to desperate need for gender-neutral rape laws, targeting and violating men in order to extort them should also be fought. Women and men should have equal rights to defend their body and property.

Conclusion
A woman remains a woman, how the dignity of a married woman is not affected as an unmarried woman, is the question raised by the Delhi high court. Pondering over the same, I conclude that on the basis of a woman's relationship status with the man raping her cannot justify the inhumane act of such a man. Marriage does not justify rape.

But as we live in a society, a law cannot be made without considering every aspect in which it can be used. As we discussed the apprehension of marital rape law being misused to intimidate man. We are in desperate need for gender-neutral laws. A law criminalising marital rape along with provisions through which the law can be safeguarded from being misused.
We as a society still have a long way to go. Creating an equal society with equal opportunities and respect is still a dream, it can be achieved if we work together towards it. Written By: Pragati Dwivedi

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