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Breakdown Of The Legality Of Marital Rape

What is the perception of an ideal Indian wife in our society? Is it an image of a successful woman, a devoted wife and a loving mother? Or is it that of a wife suffering violence and sexual assault with acceptance of it? The latter seems barbaric, does it not? But the Indian law supports that stance and so do our politicians. Marital rape is legal in India. This article will take you through the different aspects of it.

In March, an open letter was penned by over 5,000 women rights activists in India asking the then chief justice SA Bobde to step down and apologise. The chief justice, Justice Bobde asked two disgusting questions. He asked a man accused of raping a minor girl if he was ready to marry her.

The other appalling question in a different case of marital rape from the chief justice was, "When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?" This image of India promoted by a reputed judge is of how India stands upon the family values of non-consensual sex and blind devotion to husbands.

The marital exception to the IPC's definition of rape was drafted based on Victorian patriarchal norms that did not recognize men and women as equals. All the property owned by a woman was passed on into the hands of the husband under the "Doctrine of Coverture." Coverture arises from the legal fiction that a husband and wife are one person. When the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity and had no legal obligations or rights and was either seen as the property of their husbands or fathers.

Today we are neither under Victorian patriarchy our women have their own identity. When the makers of our laws, the British have discarded their discriminative, imperial and patriarchal ideologies and have criminalised marital rape, why are we a step behind?

The Law Commission has laid various arguments regarding the validity of the exception (2)
clause. It was argued that since all other factors like domestic violence were criminalised, there was no analysis as to why marital rape is shielded from the law. This argument was rejected since it was feared that the criminalisation of marital rape would lead to "excessive interference with the institution of marriage".

Following this ideology, criminalising domestic violence is also interference in marriage, and so is a divorce between the couple. But still, both are regulated by the court. Marital rape proves to be an exception that can increase the number of unreported cases of rape in India and also portrays a dark reality of the sanctity of marriage in India.

A parliamentary standing committee has said if marital rape was made a crime, the family system will be under stress and it could lead to practical difficulties. In 2016, the government told the Rajya Sabha that the concept of marital rape was an international one and cannot be applied in the Indian context due to factors of poverty, illiteracy, social customs, religious beliefs and the 'sanctimony of marriage.'

The financial dependency of some women on their husbands is often used as a vague defence. But needs to be highlighted that these might be the women most at risk of sexual assault and domestic violence. Just like the PWDA creates a provision to provide monetary relief to the aggrieved person, similarly, women suffering marital rape can also be provided with the same relief.

The first stage could be providing necessities like shelter, food, clothing and water and the second stage could be rehabilitating them to either self-help groups or vocational jobs. Using the lack of assets of women and their economic dependency on their husbands cannot be a defence used to defend the criminalisation of marital rape.

Let's look at how the law has been framed in our country.

While the IPC does not criminalise marital rape, a specific form of marital rape is criminalised i.e., consensual sexual intercourse when the wife and husband are living separately on account of judicial separation or otherwise. This creates a discriminative wall between women living with their husbands and couples that are leaving separately. �376B of the IPC states:

"Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine"

This section indicates that in �376 of the IPC consent is presumed in contrast to this clause since the husband and wife are not living together. Living together raises a presumption that the wife has consented to sexual intercourse with the husband.

A technicality can come into perspective here that the couples living separately might still be married and not necessarily divorced, so there is no basis to criminalise marital rape in this case too. If one tries to understand the language and analyse this law, it is clear that the law assumes that a married woman has consented to sexual intercourse with the husband. It is barbaric how there is a difference in conviction when a couple is separated and does not live together.

Politicians and lawmakers have often suppressed the urgency for the criminalisation of marital rape by giving a vague defence that women have existing resources and laws to protect them. This includes the Protection of Women from Domestic Violence Act, 2005 ('PWDVA, 2005') and various other personal laws dealing with marriage and divorce. But these laws are not enough and they have various loopholes to tend to. Let's look at a critical analysis of a law that is supposedly a "protection" for women suffering marital rape.

Looking at article 498 of the Indian Penal Code and trying to relate marital rape under the concept of "cruelty" in 498A. There is a stark difference between the concept of cruelty and rape. Firstly, the maximum punishment under 498A can only be extended up to three years with/without a fine. The maximum punishment for rape is life imprisonment and cannot be less than 10 years. This proves that this act does not even scrape the surface of the severity of rape.

Whoever, being the husband or the relative of the husband of a woman, 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 a fine.

Adding to the shortcomings, the definition of cruelty and mental assault may vary from case to case and classifying rape under that banner can prove to be difficult. These loopholes lay out how article 498A has been used to mask the need for the criminalisation of marital rape.

Let's look at an infamous case by the Chattigrah high court, Dilip Pandey and others v. the State of Chhattisgarh.

In the instant case, the complainant has reported that the applicant No. 1/ husband has many times, without her consent, made unnatural physical relations with her and even inserted his finger and radish also in her private part. Although, except insertion of finger and radish in her private part, what other unnatural physical relation he made with the complainant, she has not stated, which is a matter of evidence.

But, only on that ground, charge framed under Section 377 of the I.P.C. cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the I.P.C. where the dominant intention of the offender is to derive 7 unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as carnal intercourse against the order of nature and such act would attract the ingredient of an offence under Section 377 of the I.P.C. In view of the above, the judgment of Nimeshbhai Bharatbhai Desai (supra) is of no help to the applicant No. 1/husband with regard to the charge under Section 377, of the I.P.C.

In contrast to this decision by the High Court, This is what section 377 of the IPC says about unnatural offences

" Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

It should be noted how penetration into a sex organ is enough for it to constitute carnal intercourse and the offence can be constituted under section 377. The man who forcefully penetrated his wife and caused her pain and discomfort has walked free because even when section 377 clearly states the prerequisites.

Criminalising marital rape gives women their reproductive rights and breaks the barrier between married and unmarried women. How is it fair for us to label rape as legal just based on marriage? For those who think criminalsing is not a pressing matter, this law symbolises the "sanctity of marriage" as love, respect along with forced sex. Crminilising it would put India a step forward in protecting its married women and would include it in the 150 countries that have recognised the sexual rights of all women equally. It is about proving how India stands upon the values of peace and harmony in marriages and not force and violence

This Article Does Not Include Recent Developments And Presents An Analysis Of Parallel Laws Used To Include Marital Rape Under Their Ambit*

Award Winning Article Is Written By: Ms.Suhana Sharma
Awarded certificate of Excellence
Authentication No: JU217982532326-28-0622

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