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Marital Rape; Offence Or Right?

Is Marriage A Legitimate License To Lifetime Intercourse?

What comes under the scope of Rape by law?

'Rape' in Indian Penal Code 1860 is defined as sexual intercourse with a female against her will or without her free consent i.e. a consent made with sound mind and free of any misrepresentation, fraud and coercion. This clause is an exception to husband's right of performing sexual intercourse with their wife, simply referring that the consent of a married woman developing a sexual relationship with her husband is not a matter in eyes of law.

Facts and practices
Marriages in Indian legal system is considered to be lifetime perpetual consent of wife to have sex with her husband irrespective of anything, it is like a contract with implied acceptance. This cannot be challenged by women in any court of law in India. Almost 70% of women in India are having a coercive sexual relationship within their marriage and about 99.1% of the sexual abuse cases go unreported in India.

Undoubtedly, the idea of marriage being a process to acquire a destination of sex is widespread about India. Does raping by husband and others give selective pain? If no, why is the law discriminatory? 'No means No', there is no difference neither in spelling nor in meaning of between a married woman's 'No' and an unmarried one.

Violation of Rights

It is violation of Article 14 of the Indian constitution, which enables every citizen to be equal before law, but rape suffered by a wife through her husband is claimed not as equal as that suffered by an unmarried woman. The lawmakers have very cleverly put any kind of sexual assault on wife by husband as domestic violence in the 'Protection of women against Domestic violence act, 2005' that too with common punishments.

The legal void
The loophole for not criminalising marital rape is husband and wife are treated as a single legal entity, taking back of this statement murder of a husband by wife or vice versa can be escaped punishment but that doesn't seems to be logical!

All Asian countries with most of the Africans do not consider marital rape as crime. India stands with the other 35 countries following a misogynistic law. Many political leaders think that an existence of word or thought like such is against cultural sentiment or nature and for some, it is a subject to sarcasm. In fact, it's shocking to believe that 51% of women justifies the brutality of men against their wife.

Case laws and suggestions
There are many suggestions made to Indian government regarding marital rape. The United nations committee on elimination of discrimination against women had recommended to Indian government to formulate law on upon marital rape in 2013. Helen Clarke, the President of UNDP has addressed all nations widely to take strict actions against marital rapes in 2016.

Justice J.S. Verma committee set up, post Nirbhaya Rape and murder case has advised that any relationship of rapist whether marital or non-marital cannot act as a defence against sexual violence. It clearly reflected the forceful mating is a tendency of men to establish right over their wives and treating them no less than a property. The Pam Rajput committee recommended to penalize marital rapes too. Seven years post to these we are still in a scenario of continuing this undue intercourse as legally correct.

There are some case references like C.R. v. U.K . setting up a landmark judgement by European commission of human rights that a 'a rapist remains a rapist regardless of its relationship with the victim' a connecting judgement of

Supreme Court of India in Shimbhu and anr v state of Haryana stated the offer to marry, by a rapist does not amount in reducing his punishment and morally it should never be an option, raping a woman is not only physical harm but more than that it's a psychological trauma for her, it can even turn into a phobia to think of developing any kind of sexual relationship with her partner in near future. But time and again our society is witnessing such unreasonable and insensitive utterings; sad part is when it comes from the one who govern us or the one holding responsibility to protect our rights and ensuring justice.

The judgement paradox
The 47th Chief justice of India, S.A Bobde's statements overruled the Supreme Court's verdict itself when he proposed a rapist to choose between marrying the victim or taking punishment in a recent case of a government servant. This statement is sometimes feels like gruesome and a threat to liberty and justice system of India, the utmost protector of justice saying something that unjust on a part of a particular gender. How can it be discretion of a criminal after committing such a severe crime?

Are we really living in times where women are empowered? Every citizen of India is accountable to these questions then only it can be said to an equal world which offers equal sharing of choice and consent and not just a claim. In 2017, the Supreme Court of India adjudged, in Independent thoughts' case challenging clause (2) of IPC section 375, that marital rape cannot be criminalised.

Indian Penal Code was prepared in 1860 in accordance with the patriarchal dominance of that era which did not treat males and females equal before law. This should have been amended in 1950 only but now time reminder has come to amend some laws; one of them regards the rape laws, which the criminal amendment act 2013 failed to fulfil. Sufferings are not bias it should not be treated bias too. Wedding in our culture is deemed as a pious relation, it should certainly not be a room for a license to illegitimate actions.

Consent should be the basis of classifying rape not relationships. It is the high time, to give a push back to marital rapes and unrestricted manhood with a proper law empowering women to exercise their rights of choosing sexual relations with their consent and not out of customary binding.

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