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Man v/s Marital Rape: Question Of Rotten Rights

"Rape Is Only The Crime In Which The Victim Becomes The Accused"- Freda Adler

When it comes to rape what is the first thought that crosses over our head? It must be girl who enticed the man or she must be wearing some clothes that revealed her skin too much for her to go through rape or else since modernization has approached us we have now been able to partially accept that its man who is responsible for rape and not woman; but we never had any reason enough to conclude why rape happens to woman and why she has to go through such trauma and violation and to add cherry on cake where we make her go through hurdles of society and tough judicial system which is worse than rape.

Every time there is an amendment in law and new provision has been added where we make sure accused of rape shall not go free only reasoning it lack of provision but are we going to keep on making provision for rape accused to just cover them under crime or take actually harsh steps against them. After Nirbhaya case in 2012 rape section under Indian penal code has been widely elaborated section under the suggestion and amendments suggested by Justice Verma committee. But is that all we need an elaborated section made it easy for legal authorities to cover the accused of rape under the provision but didn't make it easy for rape victims to overcome the trauma and get justice.

When we read about rape case, we have been used to consider that its normal and there's nothing new in it but is that really the case it can be anyone when it comes to rape and any sort of sexual abuse that can happen to any girl inside the house or outside the house. Today we focus on the sections of rape and sexual offences covered under various Acts and how it helps women to protect their dignity and integrity.

As the title suggests the Man v/s Marital Rape: Question Of Rotten Rights what is this new concept of marital rape if asked the answer is non-consensual intimacy which is by force is marital rape. But when we talk about consent is it there when there is rape taking place outside the marriage. The difference between rape and marital rape is that you are staying with the accused known as husband but ideally its 2/3 sexual assaults where victims are known to Accused fully or partially (1).

So why at this stage when we have provision for rape, we are in dire need of having marital rape which is shown as need of hour? Is it that women under marriage are not protected from sexual abuse?

The answer to this is definitely no when we look ahead in provisions which clearly punishes husband for sexually abusing his wife are as follows:

  • Section 3 (a) of Protection of Women from Domestic Violence Act 2005 clearly mentions that (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;
  • Section 376 (2) (k) of Indian Penal Code states that, being in a position of control or dominance over a woman, commits rape on such woman; shall be punished for term of seven years which may extend up to imprisonment for life and also be liable for fine.
    Section 376(2)(k) cover all man who are in dominance over woman which shall be given interpretation of husband who are in particular in dominance over woman thus it covers husband and marital rape.

  • Section 498A of Indian Penal Code states that, Husband or relative of husband of a woman subjecting her to cruelty. �Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun�ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation: For the purpose of this section, "cruelty" means:
    1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; and be punished for term which may extend up to 3 years and also liable for fine.
As per recent developments in RIT Foundation v. UOI and other (2) , marital rape is considered to be unconstitutional as it gives woman the right which is already existing in law and taking away the right of man where marital rape being criminalised will not only put them through legal troubles but also lead to their families being exploited in name of provision called marital rape.

This not only takes away their right but also makes marriage a joke and institute of it to be exploited in the hands of law where existing crime will be given recognition and just another legal provision with new added punishment. Rape is already a crime and marital rape is recognised as mentioned in above sections under domestic violence and Indian penal Code where cruelty covers mental and physical cruelty which can be elaborated through an amendment by adding physical cruelty which is followed by sexual abuse but any separate provision will not bring any desired change in women's life.

Any sexual abuse on woman under marriage is punishable and talking about legal technicalities marital rape will not only be difficult to prove through medical evidence but, will hamper institute of marriage along with paralysing the judicial system where rape has to be established beyond medical evidence. A separate provision will not only burden existing judiciary but will lead to end number of multiplicities of proceeding that woman would file against husband and his family. Thus, now it's time where women are not protected but by giving recognition to such provision and criminalising the offence which is already punishable under law is of no use.

Marital rape versus Man is like fighting for rotten rights of women where they have rights and remedies which are already in mishap and never sought desired results for them and on other hand establishing or incorporating another provision would only destruct the existing legal remedies for woman.

Written By: Bharti Bhogesara

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