It’s a 72nd Independence day which we are going to celebrate this year in 2020. We have covered a long way in these 72 years and learned many things from our elders, from our siblings, from our historical facts but why again and again we are failing in respecting our goddess “WOMEN’S”. As we are enjoying the 21st century with lots of new changes but someone is living in the monarchy of darkness and fear they are nonetheless women. It’s just the matter of fact and concern that on the one part of our life our country is celebrating it’s a wonderful victory in the decisions of the legal arena like “Triple Talaq Case”, “Aadhaar Cards Case” and many more; on the other hand we land down with general disappointment, the government is giving its views against criminalizing marital rape by saying that marital rape would lead the future towards “destabilizing the institution of marriage”.
Among 36 countries India is one of the countries where marital rape is not recognized as a crime. The increasing cases of women who are being forced to have sex with their husbands, despite their refusal is a matter of great concern. Why always there is an awkward silence on the name of marital rape? Why half of India thinks it’s a license to rape? No, absolutely no marriage is never a license given to a male spouse for having forceful sexual intercourse. If a woman is in a marriage that doesn’t give the right to the husband to have sex with her without her consent. Getting married never makes women a husband’s property. If a woman is obeying you, respecting you, listening to your taunts that doesn’t mean she will enjoy having sex with you without her consent, which is important for a male spouse to understand.
As per the “National Crime Bureau” the cases against the women had been increasing every year. Here in this 21st century, where we debate about equal rights and position of women in India and comparing that with various different laws, but still we can see the increasing statistics of crime against them. According to the “National Crime Report Bureau” every 2 minutes one case against women is being reported in India and crime includes both physical and mental violence.
Marital rape is the forceful sexual intercourse which is very common nowadays in Indian society. It is one of the serious social issues and public health problems that has gained a great amount of attention. Marital rape is identified in various parts of India as well as in many other parts of the country. Marital rape also leads to depression which is commonly found in women’s and a number of other mental health issues. Marital rape existence in India is de facto but not de jure. Marital rape is the sour truth that is hidden behind the golden curtains of marriage. Marital rape is an unusual act of violent distortion by a husband in opposition to his wife where she is physically and sexually harmed.
Section 375, the provision of rape in the Indian Penal Code, has reflected very obsolete sentiments, mentioned as the irregular clause- “Sexual contact by a man with the wife who is not under 15 years of age, is considered not to be a rape.” Section 376 of IPC issues punishment for rape. According to the section, the rapist should be penalized with confinement of either description for a term which shall not be less than 7 years but which may expand to long life or for a term expanding up to 10 years should also be liable to fine unless the woman raped is his own wife, and who is not under 12 years of age, in this case, he shall be punished with imprisonment of 2 years or fine or with both.
A marriage knot is a bond of trust, love, and affection. A husband who is practicing sexual supremacy, getting it by ultimatum, or through any means possible, is not part of the convention. Surprisingly we will not be able to find this in any of the law books. A woman can easily protect her right to life and liberty, but at the same place she can’t protect her body, within her own marriage, which is just mocking. Women so far have possibility only to section 498-A of the Indian Penal Code, dealing with brutality, to safeguard themselves against “forceful sexual intercourse by the husband”. But, where is the degree of measure, of ‘unwanted’ or ‘unnatural’, the definitions within private spousal relations? Is immoderate demand for sex contrary? Is marriage a license to rape? There is no specific answer for this, because the tribunal and the legislature have been hushed.
Types of Marital Rape
❖ Non-Physical sexual coercion-
In this non-physical or metaphysical sexual coercion perpetrators of marital rape will often use various strategies to make their victims submit to sexual deeds, such as metaphysical sexual coercion and intimidate or forceful sex. Metaphysical sexual coercion is important to be considered because it occurs more often than intimidate or forceful sex. Accession, or consent to unwanted sex from fear of the repercussions of resisting, represents another common form of sexual oppression. These relationships are often involved with abusing and psychological aggression with no physical violence.
❖ Obsessive rape-
Marriages with obsessive rapes were recognized by unusual sexual activities, such as subjugation and the use or upholding of pornography. Executioner of obsessive rapes accomplishes general engrossment with sex and skilled sexual arousal from “domain” acts or pain levied on the victim. Brutal rape involves violence as a means for sexual arousal, which can be eminent from anger rape which uses sexual violence as a way to mortify and control violence.
❖ Force only rape-
Marriages with force-only rapes were classified by continual difference of opinion over sexual venture. These marriages had a minimum amount of violence. Lawbreakers of marital rape only employed enough physical force to achieve their wants against sexual acts. Power rape occurs when the perpetrator uses rape to state their power, supremacy, and control over the victim. Instrumental violence, brutality used to attain a desired action, is characteristic of power and force-only rapes.
Relevant Provisions and Cases
That Article 21 of the Indian Constitution, integrates the right to live with human dignity and is a standout in the middle of the fundamental elements of the right to life which discern the independence of a person. The Supreme Court has held in various number of cases that the offense of rape exploits the right to life and the right to live with the human dignity of the victim of the crime of rape. In Bodhisattwa Gautam v. Subhra Chakraborty the court held that rape is a crime against the basic human right and infringement of the right to life enshrined in Article 21 of the Indian Constitution and provided certain instructions for granting reimbursement to the rape victim.
In the case of The Chairman, Railway Board v. Chandrima Das, the Hon’ble Court held that rape is not a matter of infringement of an ordinary right of a person but the infringement of Fundamental Rights which is involved. Rape is an offense not only against the person of a woman, it is a crime against the whole society. It is a crime against basic human rights and is adverse to the victims most cherished rights, namely, rights to life which comprises the right to live with human dignity accommodated in Article 21. In the case of Vishakha v. State of Rajasthan the Supreme Court enlarged the right of privacy in working environments also. However, along a similar line we can interpret that there lives the right of privacy to get into sexual relations even inside a marriage.
The main aim of the 2013 amendment was to make much needed small changes to the definition or precision of rape and to upgrade or refine women’s accessibility to the legal system. The amendments to the Criminal Penal Code and the Evidence Act were focused on ensuring that women are not again a victim when they approach the legal system after an act of rape in opposition to them. The amendments seek to remove irrelevant or immaterial medical examinations and unwanted questions that women were asked during cross-examination, and to ease better inquiry and trial in rape cases. However, despite the changes in the law, the lawmakers and the administrations have taken no step regarding the formulation of law for Marital Rape.
In 2005, the Protection of Women from Domestic Violence Act was passed which although did not consider marital rape as an offense, did consider it as a form of domestic violence. Under this Act, if a woman has been through marital rape, she can freely go to the court and demand for judicial separation from her husband. However, the same doesn’t entirely protect the women from the offenses in any case.
In the case of RTI Foundation v. Union of India, the Central Government submitted to Hon’ble High Court of Delhi that Criminalizing Marital Rape may weaken the institution of marriage. Central Government further submitted that merely deleting Exception 2 will in no way serve any functional purpose as a man is said to perform ‘rape’ as defined under Section 375 of Indian Penal Code cannot be similar in the case of marital rape. If all sexual acts by a man with his wife will be certified to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will depend upon in such situations as there can be no lasting evidence in case of sexual acts between a man and his wife.
It can be concluded by saying that India is developing in every aspect of its domain and making it more versatile at the world level but still laws which people are following in India are getting obsolete. After having numbers of hilarious cases against women there is still nothing new in the list of our constitution. It’s the peak time where marital rape should be criminalized in India otherwise it will lead to something which is unpredictable. Marital rape is violating the rights of the women and breaking laws like Article 15, Article 14, and Article 21 of the Indian constitution. Marital rape is not only a burning issue in India also in America almost 15-16% of women are raped by their opposite sex. Saying that marital rape is less than any other crime is also the biggest crime.
Rape is a rape whether performed by the husband or any other person, pain always remains the same for the women. Our constitution must include marital rape under section 375 of the Indian Penal Code as it is also a crime. Marital rape is known as a crime in 52 countries but unfortunately India is not one of them. Why everyone closes their eyes and ears when it comes to women, it’s not only husbands or anyone’s government and laws too are not taking strict actions whenever it comes to women. Various schemes are introduced by the government for girls and women, just by bringing up 6-7 schemes every year will not stop rape, marital rape, domestic violence, and much more.
Another issue is often linked with the non-practical gathering evidence of marital rape. The most important fact is that Indian women experience the damage at least at some point in their lives. Such an explanation doesn’t seem to be reasonable. Marriage must not guarantee the husband a right over his wife’s body. All in all, the importance of the crime, immediate legal enforcement, and essential deterrent measures must be undertaken to find out the root of the marital rape.
Q1. Does section 375 of the Indian penal Code include marital rape?
No, Section 375 of IPC does not include marital rape. Exception 2 to Section 375 of IPC also clarified that, Sexual Intercourse by a man with his wife when she is below 15yrs of age, is rape, nonetheless of the fact that, it was done with or without her consent.
Q2. Does marriage lead to the license to marital rape?
No, marriage does not mean a license to marital rape. Marriage is a knot of religious beliefs and faith. Which would never give a right to a husband to commit a forceful sexual intercourse with his own wife.
Q3. What can be the possible solutions to marital rape?
There should be no age limit because rape is a rape and must be included in section 375 of IPC. It should be made a ground for immediate judicial separation in Hindu as well as Muslim law. Marital rape must be considered as criminal offence in India.
Q4. Is marital rape violative of Article 21 of the Indian Constitution?
Yes, it’s violative of article 21 as this article talks about the right to life and personal liberty and being a citizen of the country women also have the right to live and enjoy their life peacefully without being forced in any circumstances.
Q5. Can marital rape be a part of the Domestic Violence Act?
Yes, it can be a part of it as it includes violence against the women in both the ways physically and mentally.
- Prof. S.N. Misra, Indian Penal Code 725 (19th ed. 2014).
- Aneshensel C. S. “Social Stress: Theory and Research”. Annual Review of Sociology 1992; 18: 15–38.
- National Crime Record Bureau Statistics Ministry of Home affaire- http://ncrb.gov.in/index.htm
- Delhi Gang rape Victims Friend Relives The-Horrifying 84 Minutes Of December 16 Night, for details of the incident, http://indiatoday.intoday.in/story/delhi-gangrape-victims-friend-relives-the-horrifying-84-minutes-of-december-16-night/1/309573.html