Unveiling Marital Rape: Breaking the Silence, Demanding Justice
Written by Nakshatra Dapse
INTRODUCTION
India has a long history of social evils, including Sati Pratha, child marriage, forced marriage, the Devdasi system, and the Purdah system. Marital rape, a prevalent issue in modern India, has persisted since ancient times. Despite the indifference of Indian society and legislature towards the issue, the Indian judiciary generally supports the elimination of marital rape. In India, marriage is considered a sacred institution, but it often leads to sexual cruelty and brutality. Marital rape is the most common crime against married women in India and the most under-reported crime due to ignorance and lack of legal protection under the Indian penal code, of 1860. Victimization of women and conjugal rape are common issues in India. The Indian judiciary’s general attitude towards the issue is in favour of eliminating marital rape from the country . In India, there are no effective laws to tackle the menace of marital rape.
MARITAL RAPE
At now, India has no legal provisions regarding marital rape. In general, we can comprehend marital rape. Marital rape typically occurs when a woman is coerced into having sex after marriage against her choice and without her consent. One partner’s forced sex is said to be another’s. Additionally, marriage and family disputes are regarded as private matters in India, but they also infringe on a woman’s right to self-defence when she is in an abusive relationship with her husband or, in rare cases, are even protected by the law. She then falls prey to domestic abuse. One of the most prevalent types of physical abuse that happens to women after they get married is domestic violence psychological, or both. The worst thing about these heinous acts against women is that, even if her family is aware of them and has counselled her to remain, no one steps forward to report them, and as a result, we frequently lose an innocent person. It ruins a woman’s mental health in all these ways; she suffers from mental anguish day and night, for weeks and months, and she is scrutinized by society if she wears protective gear or seems to be defying her spouse.
MARITAL RAPE AND INDIAN LAWS
Marital rape in India is not an offense, as provisions regarding it are either non-existent or esoteric and depend on the understanding of the courts. Section 375 of the Indian Penal Code (IPC) provides an exception clause for sexual intercourse by a man with his wife, who is not under 15 years old. Section 376 of the IPC provides punishment for rape, which can be life imprisonment or up to 10 years imprisonment, with a fine unless the victim is his spouse.
There is no lawful security agreed upon to the spouse after the age of 15, which is against human rights guidelines. The Protection of Women from Domestic Violence Act, 2005 was passed in 2005, which considers marital rape as local violence and allows a woman to seek legal partition from her husband for marital rape.
Marital rape is unreasonable, as it damages a woman’s body and trust, leading to instability and fear. However, the laws to protect the interests of victims of marital rape are lacking and deficient, and the means taken are unacceptable. The fundamental principle of these laws is that consenting to wed includes consenting to sexual action, but this does not necessarily mean consenting to sexual violence.
The main resort for women is section 498-A of the IPC, managing remorselessness, to protect themselves against “unreasonable sexual direct by the spouse.” There is no standard of measure or translation for courts regarding ‘perversion’ or ‘unnatural’ within spousal relations, and there is no clear answer to whether marriage is a permit to rape due to the silence of the judiciary and legislatures.
LANDMARK JUDGMENT-
• NIMESHBHAI BHARATBHAI DESAI V. STATE OF GUJRAT
The Indian Supreme Court has ruled that marital rape is not criminalized under section 376 of the Indian Penal Code (IPC) due to concerns about destabilizing marriage institutions. However, safeguards in the criminal justice system can detect and address fabricated or erroneous complaints. Marital rape cannot be ignored due to fear of a wife using it as a weapon to torment her husband. Indian laws give women the right to life and liberty within their marriage. Assault by a husband on his wife would be a crime under the IPC, but if the same husband forces his wife to have sexual intercourse, he would be liable for assault but not for rape only because there is a valid marriage. The court discussed three types of marital rape: battering rape, force-only rape, and obsessive rape.
• INDEPENDENT THOUGHT V. UNION OF INDIA
The court ruled that sexual intercourse between a man and his wife, a girl between 15 and 18 years old, is rape regardless of whether she is married. This decision is in line with Article 15(3) of the Constitution and Article 21 of the Constitution. The Prohibition of Child Marriage Act (PCMA) in 2006 criminalized child marriages, but Section 375 of the IPC did not decriminalize marital rape of a girl child. The court urged the court to strike down Exception 2 to Section 375 IPC for a girl child below 18 years old, citing its arbitrary, tyrannical, and discriminatory nature, violation of girl child rights, and contravention of the provisions of the POCSO Act.
The Protection of Women Against Domestic Violence Act of 2005:
The Protection of Women from Domestic Violence Act of 2005 protects women against sexual perversion and domestic abuse and provides legal remedies for crimes against women, including marital rape. The idea that violence against women is a civil wrong rather than a criminal offence is quite unacceptable. Marital rape would serve as a deterrence and stop such crimes if it were designated a criminal offence.
CONCLUSION
The marital rape exception in India creates a distinction between the rape of a married and unmarried girl, which is a heinous crime that should not be neglected due to the fear of destabilizing the marriage institution. Marital rape is a serious offence against women and deserves government consideration. Women who are raped by their spouses are more likely to face physical and emotional issues, making it more horrendous for them. There is a dire need for criminalization of marital rape in India.
The Protection of Women from Domestic Violence Act has loopholes, as it does not directly address marital rape. However, sanctioning abusive behaviour at home has opened the door for criminalizing marital rape. A human rights activist, Deepika Narayan, wrote that 111,549 cases were registered under 498A by 2020, with 5,520 dismissed as false and 16151 as law.
Marital rape is both beneficial and annoying, and it is crucial to punish the perpetrator for their actions. Indian authorities should take action and issue a landmark ruling on marital rape, as it is both beneficial and annoying for women to be protected from such abuse.
REFERENCES:
- sangamithra logananthan, Marital Rape, WWW.LEGALSERVICESINDIA.COM, https://www.legalservicesindia.com/article/2369/Marital-Rape.html
- Rachit Garg, Marital rape : a review of rights of women, IPLEADERS (2021), https://blog.ipleaders.in/marital-rape-review-rights-women/
- NEERAJ MALIK, GJRA -GLOBAL JOURNAL FOR RESEARCH ANALYSIS X 131 Marital Rape Laws and Women Security in India: A Critical Analysis, https://www.worldwidejournals.com/global-journal-for-research-analysis-GJRA/recent_issues_pdf/2015/October/October_2015_1444889658__50.pdf (last visited Oct 15, 2023)
- LIVELAW NEWS NETWORK, Marital Rape Is Not A Husband’s Privilege But A Violent Act And An Injustice That Must Be Criminalized: Gujarat HC [Read Judgment], WWW.LIVELAW.IN (2018), https://www.livelaw.in/marital-rape-not-husbands-privilege-violent-act-injustice-must-criminalized-gujarat-hc-read-judgment/
