The Impunity of Marital rape- Is it a License to rape?

Marital rape is a topic that is being not discussed seriously in our society or one can say that it(marital rape) is a topic that is not criminalized in the existing Indian laws. This paper does highlights the condition of women after marriage and do discuss various defences or laws that one(women) can take against her partner. There are various opinions on criminalizing marital rape, as this is a topic that is related to personal laws moreover the court should not interfere in the matter of what happens between husband and wife. India is the seventh-largest country where a woman is raped every 4 minutes and does face domestic violence every 16 minutes. Marital rape is not only the topic that does violate women’s rights but many other topics do exist which do violates the different constitutional provisions. This does hinder the country’s growth because the value of the currency of a country doesn’t make a nation strong but if the women or the girls of a nation are strong then the development of the country is possible. This paper does highlight various laws regarding the topic of marital rape.

Domestic violence

Abusive behavior at home (likewise named homegrown maltreatment or family savagery) is brutality or other maltreatment in a homegrown setting, for example, in marriage or living together. Aggressive behavior at home is regularly utilized as an equivalent for private accomplice brutality, which is submitted by one individual in a close connection against the other individual and can happen in hetero or same-sex connections, or between previous companions or accomplices. In its broadest sense, abusive behavior at home additionally includes savagery against youngsters, teens, guardians, or the old. It takes various structures, including physical, verbal, passionate, monetary, strict, regenerative, and sexual maltreatment, which can go from unobtrusive, coercive structures to conjugal assault and to brutal actual maltreatment, for example, gagging, beating, female genital mutilation, and corrosive tossing that outcomes in deformation or demise. Homegrown homicides incorporate stoning, lady consuming, honor killing, and endowment passing (which some of the time include non-cohabitating relatives).. About 70% of women in India are victims of domestic violence. National Crime Bureau’s (NCRB) “Crime in India’ 2019 report was worrisome but not startling. As per the report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws.

The problem of unreporting

An analysis of National Family Health Survey(NFHS) 2015-16 data indicates An analysis of National Family Health Survey(NFHS) 2015-16 data indicate that an estimated 99.1 percent of sexual violence cases go unreported and that the average Indian women are 17 times more likely to face sexual violence from her husband than from others. Women empowerment is a topic that is being taught to every child but this (marital rape) is a topic of death empowerment, where women(spouse) are being forced to have a physical relationship that too without her consent. Despite recent amendments in criminal law, various laws meant to protect women from domestic violence and sexual assault have largely remained ineffective. But what happens when laws provide a safeguard to the culprits and endanger the victims?

Status of Marital rape- What it is?

Marital rape, the act of forcing your spouse into having sex without proper consent, is an unjust yet not uncommon way to degrade and disempower women. Definition of rape is being codified under section 375 in Indian Penal Code, the section says   “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age”. All the non-consensual sexual intercourse does amount to rape, non-criminalization of marital rape comes under the exception of section 375 of the Indian Penal Code the exception says “ Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”. The aforementioned paradox is not mere fiction but exists as a reality in the Indian Penal Code. The most horrifying and repressive issue with the Indian legal regime is that marital rape is perfectly legal.

Related case laws

In Bodhisattwa Gautam v. Subhra Chakraborty[1]the court held that rape is a crime against the basic human right and violation of the right to life guaranteed in Article 21 of the Constitution and provided certain guidelines for awarding compensation to the rape victim.

In the landmark case of The Chairman, Railway Board v. Chandrima Das[2], the Hon’ble Court held that rape is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Rape is a crime not only against the person but it is a crime against the entire society. It is a crime against basic human rights namely, the right to life which includes the right to live with human dignity contained in Article 21 of the Indian constitution.

That the case of State of Maharashtra v. Madhkar Narayan[3] the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished.

In the landmark case of Vishakha v. State of Rajasthan[4] the Supreme Court extended this right of privacy in working environments also. Further, along a similar line, we can translate that there exists a right of privacy to get into a sexual relationship even inside a marriage.

Related laws

Despite that, rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post-marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution. Lawmakers fail to understand that a marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.

The concept of marital rape does violate articles 14 and 21 of the Indian constitution, where article 14 says “Equality before law should be given to every person”. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.  Article 21 on the other hand says “Protection of life and personal liberty shall not be deprived”. No person shall be deprived of his life or personal liberty except according to the procedure established by law. The concept of marital rape in India is the epitome of what we call “implied consent”. Marriage between a man and woman here implies that both have consented to sexual intercourse and cannot be otherwise.

 The UN Committee on Elimination of Discrimination Against Women (CEDAW), in 2013 has recommended that the Indian government should criminalize marital rape. Article 1 of CEDAW do discuss “discrimination against women”, the term “discrimination against women” shall mean any distinction, exclusion or restriction made based on sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Way forward

In the aftermath of the 2012 gang rape in Delhi, Justice Verma was appointed chairperson of a three-member commission tasked with reforming and invigorating anti-rape law. His committee members were Ex-Solicitor General Gopal Subramaniam and Justice Leila Seth. The Committee was assisted by a team of young lawyers, law students and academics. The Committee’s counsel, Abhishek Tewari, Advocate was overall in charge of the preparation of the report. He was assisted by Talha Abdul Rahman, Prof. Mrinal Satish, Shwetasree Majumdar, Saumya Saxena, Preetika Mathur, Siddharth Peter de Souza, Anubha Kumar, Apoorv Kurup, Devansh Mohta, Jigar Patel, Nikhil Mehra, Nishit Agrawal, Shyam Nandan, Nithyaesh Natraj and Salman Hashmi.

The Committee adopted a multidisciplinary approach interpreting its mandate expansively. The Report deals with sexual crimes at all levels and with the measures needed for prevention as well as punishment of all offences with sexual overtones that are an affront to human dignity. This is on the basis that the issue of sexual assault against women is one that goes to the core of social norms and values. The report also deals with the construct of gender justice in India and the various obstructions to this. The Committee’s approach is founded on achieving the guarantee of equality for all in the Constitution of India. The committee recommended that the exception of section 375 which do legalizes marital rape, should be removed.

Public Interest Litigation(PIL)

In 2017 a PIL was filled by an NGO, challenging the unintelligible classification and claiming that married women over 15 years of age should also be afforded this protection. The Supreme court concurred with these averments to some extent and extended the age limit in section 375 from 15years to 18years.

Conclusion

Rape is a heinous crime, irrespective of the identity of the person. A stranger does it or husbands himself, rape is rape. When a stranger rapes a woman, she lives with the memory of a horrible attack whereas when she is raped by her husband she lives with the person who raped her. The laws whether they are Indian penal laws or the laws which are made for women protection are silent on this topic of marital rape. Whereas the English laws have criminalized marital rape way back in 1991 only. The Indian government has not shown any kind of interest or are silent about the topic of marital rape

References


[1] https://indiankanoon.org/doc/642436/

[2] https://indiankanoon.org/doc/113663/

[3] https://indiankanoon.org/doc/524900/

[4] https://indiankanoon.org/doc/1031794/

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