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Marital Rape And Consent In Marriage

In the following paper, the concept of rape, marital rape, sexual violence and laws relating have been explained. The reasons for marital rape have been high lightened. Further on the age of consent, age of consolidating a marriage and the conditions required have been given according to the laws in the Hindu and Muslim marriage acts have been specified. The main objective of this paper is to answer the question whether marriage is a medium of consent for sexual intercourse?

The paper proves that women have the right to refuse and marriage does not amount to consent. Since marital rape is not fully criminalized due to factors like society, male dominance and historical cultures it is important to know laws regarding Indian penal code, grounds for divorce in marriage, Hindu laws and fundamental rights have been specified.

The significance of financial constraints and education has been proven through the national family health survey. Finally the paper discusses about personal views and concluded why criminalization of marital rape is important.

Rape is a sexual assault that involves sexual intercourse taken place without the persons consent. It is an act that violates the physical, mental and psychological well being of an individual. According to the Protection of Children from Sexual Offenses Act (POCSO) the age of consent has been changed from 16 to 18 years. In India, rape done by a third member (outsider) falls under section 375 and 376 of the Indian Penal Code, 1860.

Surprisingly, it does not involve marital rape under the same section. Before arguing why or why not this form of activity is not rape, it is important to understand what is marital rape and how does consent play a significant role in marriage. Marital rape involves sexual intercourse with the other wedded partner without her assent or by anger, force or compulsion. Girls above the age of 18 and boys above the age of 21 are legally permitted to get married and this age is the age of consent for marriages.

The difference in the age of women and men has raised various questions such as whether women are more mature than men at an earlier stage, to promote the prejudiced idea that women must be younger than the man. There is no scientific backing about how mature each gender can be, which gives a strong basis to the law commission in its report to have a uniform age for men and women. This differentiation leads to discrimination. But the main question is whether marriage can be used as a form of consent for sexual intercourse.

Marriage is just not a relationship between two people but it is a relationship between two families. Just because two families agree to consider the marriage it does not amount to consent. Consent during a marriage is very important due to the following reasons:
  1. Firstly, the man and women would be living with each other and since marital rape is not yet criminalized it is essential for the women to be comfortable and safe.
  2. Secondly, most of the women are not independent and are dependent on their family which gives an upper hand and dominance.
  3. Thirdly, in a patriarchal society like ours people normalize men being dominant, violent and abusive.
  4. Fourthly, divorce is considered a taboo in our society.

Keeping all these factors in mind it is important for the man and women to know what they are dealing with. In the historic era, many families thought that it is man's right to have sexual intercourse with his wife and the wife's duty is to accept it without any objections. But this is the modern era and there have been many changes in the areas of society, marriage, laws and mind-sets.

Another reason why marital rape is not criminalized because many wives will voice their tights which will lead to multiple case of divorce which is considered a taboo in India. Marriage does not amount to consent.

Consent means giving permission for something to happen. But marriage is a phase of a thousand other little things that society fails to point out. Marriage is a social contract not a blanket of consent used for sexual intercourse. It is on the women's desire to indulge in any activity whether married or not.

The husband is charged for violence for beating his wife or any other acts of cruelty that amount to domestic violence. But the fact that rape is not criminalized which is more grave than violence.

In a crime, the mental element, mens rea is necessary to constitute the crime. In rape cases the presence of mens rea proves it when the man is aware that the women is not consenting for it. But men feel that they don't have any guilty mind. They believe it is okay to force their wife. They deny mens rea.

Since a very long time, society has always considered women as being the homemakers and a property of her significant other. The shield of wedding right and women as a tool of sexual satisfaction and has no say over her sexuality has impacted our legislators by disregarding offence of rape. This entitlement has affected the uniformity and equity. Rape is just not a savage act bit also a grave infringement of personal liberty and individual freedom.

To have a greater insight about marital rape its important to understand the laws in India. Under section 375 of the Indian penal code- "sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

Under section 376 of the Indian penal code:
"Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years".

The protection of women from domestic violence act, 2005, under this act marital rape will under domestic violence. Under this act, the spouse has the right to approach the court and plead for legal partition. Article 21 talks about right to life and dignity and the supreme court of India has held in multiple cases that the offense of rape abuses the fundamental right of article 21.

Right to privacy has been expressly stated in the constitution in many cases like Kharak Singh v. State of UP and the Puttuswamy case. This right signifies the right to sit unbothered and not aggravated. A women is entitled to her sexual privacy and she is not open to violate her privacy whenever he wishes. marital rape just not physically and socially violate a women's dignity but it also puts a lot of mental pressure and depression. The women do not feel safe in their own households and are subjected to various abuses and attacks if they try to raise their voice.

Marital rape is not completely criminalized it is considered to be more of a wrongdoing against women and is given some legal consideration. The law has to recognize criminalization of marital rape and methods to prove the same. This is just not a method to stabilize the dignity of the women but also bringing a change in the society for the protection and right of women.

Under the Hindu marriage act, section 5(i)(b) specifies consent during the time of marriage wherein both the parties are capable of giving consent and not suffering from any mental disorder, unsoundness of mind or is subject to recurrent attacks of insanity. The bible preaches mutual consent of both the parties and they shouldn't deprive each other forcefully. Under Muslim Marriage the age of consent is sixteen years and if the male is less than twenty one years and the women less than 18 years then the presence of the father if living otherwise presence of guardian or mother.

There are various problems in this situation:
  1. Firstly marriage is considered as a consent given to the husband. The whole institution of solemnizing of marriage forms a basis of sexual intercourse between the couple. But this does not have any legal backing.
  2. Secondly, in a patriarchal society like ours we consider men as a dominating character in the relationship and the man is usually older than the women.
  3. Thirdly, the aggressive nature (drunk, overreacting, violent) of the man is not considered cruel. It simply establishes the fact that women should tolerate this behavior of their beloved husbands.
  4. Fourthly, in most rural parts of the country women are not financially independent, uneducated and are constantly worry about their children which gives an upper hand to the breadwinner.
  5. The last and most important factor is the unreason ability of the law and not recognizing marital rape as an offense. Social disagreement is a factor which stops the women from speaking up.

According to the national family health survey 5 (2019-2021) women among the age of 18-49 who have been victims of marital rape, 83% report that their current husbands were responsible and the rest 13% report that their formers husbands were to be blamed. It has been concluded that the husband is the perpetrator for married women who have been victims of sexual violence. Survey 4 held approximately 5 years showed similar data.

Karnataka has the highest percentage (10.3%) of women been victims of marital rape or sexual violence by their husbands. Followed by west Bengal(9%), Bihar(8.1%) and Ladakh (7.7%). During this enquiry it was concluded that only a small fraction of women asked for help. It was also surveyed that only 14% of the total victims asked for help and 77% never asked for help seeking for their rights in any form.

They also claimed that they never mentioned anything to their parents or in-laws, the reason being that they would not get enough support due to various factors like social standing, financial difficulties, and concern for their children. It is important to know that wealth and education plays a very significant role, the survey brought out 7.2% of women who have less than 5 years of schooling as victims of sexual violence. However, 2.9% of women victims had 12 years or more schooling. Coming to financial independence, 10.2% women constituted low wealth holdings and 3.1% were among the rich class.

After knowing how marital rape is and its hurdles to prove the offense it's important to criminalize marital rape. In our society the notion of marriage as a consent to sexual intercourse does not have a legal and logical backing. Since women have the right to liberty and rape is an offense under the Indian penal code, the act of rape done by the husband does not make it less grave. After analyzing multiple offenses and circumstances we have understood that consent is one of their key determining factors. Certain laws have been made in the 19th and 20th century and since people change laws also have to be changed.

The paper couldn't stress enough on how important education and financial stability of women is. The society, traditions and historic cultures are still respected and prevailing but it does give license to grave offenses like marital rape and having notions like women and obliged to give pleasure to their husband since she has agreed to marry him. The law should be more concise on what marital rape is and how it should be proven.

The data proves the percentage of women surveyed but the journey doesn't end here, since the issue is not punishing the people, the motive is way beyond. It takes years to punish a man but it takes centuries to change a mind-set.

Award Winning Article Is Written By: Ms.Aditi Sanjay
Awarded certificate of Excellence
Authentication No: OT228246275045-9-1022

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