Even as we speak of women’s right in 21st century, it remains legal for men here to rape their wives, without it being considered as a crime. Marital rape is a huge problem in India and it is a crying shame that after so many years, marital rape has not been criminalized in this country.
Marital rape is the term used to describe forcible or non-consensual sexual acts between spouses, ex-spouses, or intimate long-term partners. These sexual acts can include: intercourse, anal or oral sex, forced sexual behavior with other individuals, and other unwanted, painful, and humiliating sexual activities. As per the international definitions included by the United Nations, it is rape if partners use force, threats or intimidation to each other to submit to sexual acts.
There are three types of marital rape. Forced sex, violent sexual intercourse including domestic violence, and sadistic/obsessive rape inciting unnatural sex. Despite the increasing number of cases of marital rapes in our country, marital rape is not defined in any statue/ laws. Even when the government amendment its criminal law in 2013, marital rape was not included under rape.
Section 375 of the Indian penal code has a bizarre exemption to the rule. According to that rule, a man can only be considered as committing a rape if his wife is below the age of 15 and did not consent to the act. Whereas, the given age for marriage is 18 years and this provision seems like a paradox almost condoning and accepting child marriages.
Although under article 14, the Indian constitution guarantees equality, the marital law exception discriminates against females who have been raped by their own husband by denying them equal protection from rape and sexual harassment.
Exception 2 of section 375 also violates article 21 of the Indian constitution that states no person shall be denied of his life and personal liberty except according to the procedure established by law.
It is a matter of concern, that while on one hand the country is celebrating some glorious decisions in the legal arena from the Hon’ble Supreme Court of India like landmark judgments in the matter of ‘adhaar card case and ‘triple talaaq’ creating new cornerstones for the judiciary. On the other hand, to the general disappointment, the Central Government has given its view against criminalizing marital rape, saying doing so would 'destabilize the institution of marriage'. In India, marital rape exists de facto and not de jure. While in other countries either the legislation has criminalized marital rape or the judiciary has played an active role in recognizing it as an offence.
Though marital rape is the most common and repugnant form of cruelty in Indian society, it is hidden behind the curtain of marriage. The Supreme Court who is the last hope for reforms in outdated approach towards marital rape after the parliament had said that the country isn’t ready to accept marital rape as a crime because of the factors like "level of education and illiteracy, poverty, social customs and religious beliefs". There are several writ petitions before the Supreme Court and the various high courts, filed by individuals and civil society organizations challenging the marital rape exemption to Section 375 — the government has continued to shield men who rape their wives by citing the same few reasons repeatedly.
When we talk about Indian society, it’s the culture, beliefs and customs the pops up in everybody’s mind. The idea that once a woman is married, she hands over never ending; continuous sexual consent is a deeply embedded one in our society. Rape law in India continues with the benevolent mindset of considering women to be the property of men post marriage with no autonomy or agency over the bodies. Marital rapes not only distress one’s body and soul but also violate the human rights guaranteed under the constitution of India. Even though many countries around the world have taken such strong and progressive steps, India is one of the 36 countries where it is still not a criminal offence and is untouched by the lawmakers of our country.
Keeping the rights of the women in view and the increasing cases of marital rape in India, the law commission should amend criminal legislative framework in respect of marital rape as a crime. Further to install offices such as guardian ad litem to take care of the children’s need in such a setting. The law commission may also amend matrimonial laws to incorporate marital rape as a ground of divorce or dismantling marriage as an exception to rape to ensure that women have equal agency and autonomy over their bodies.
It’s time that Indian jurisprudence understands the inhumane nature of the provision of law and strikes it down.
Written by: Ms. Nikita Dubey, Student, SOA National Institute of Law, Bhubaneswar
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