.Marital Rape: A shadowed Crime?
Marriage, in India, is considered as one of the most imperial and sacrosanct union of not only two individuals , but the two families as well. Religious scriptures such as the Vedas, Smritis and even the Religious Epics sought to harmonise two individuals and bind them as man and wife for ultimate eternity.
The Law also describes the Nature of marriage as a ‘Sacrament’, as mentioned in the Hindu Law, and as a ‘Part sacrament, part contract’ in the Muslim Laws. To ensure that this overwhelming relationship bound by marriage is successful, the wife is always taught to be devoted to her husband and her family and the husband is taught to look after the needs of his wife and his family.
Over the years, women have been taught to be patient and forgiving towards their husbands. A women who has the audacity to speak up against her husband is looked down upon. In the twenty-first century also, there are several families where women are prone to some or all sorts of cruelty, be it mental, physical or emotional. But hardly a small portion of women voice against such violent behaviours of their husbands.
In India, one such shocking avenue of cruelty i.e. The offence of ‘Marital Rape’ is still decriminalised. Such an offence not just effects the victim physically, but leaves a permanent scar over the mental health of the victim.
One very important statute of Indian law that is Indian Penal Code defines the offence of rape as follows
Section 375 IPC – A man is set to commit rape who, except in the case hereinafter accepted, had sexual intercourse with a woman under circumstances falling under any of the 6 following descriptions:-
1 – against her will
2- without her consent
3- with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or off hurt
4- with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5- with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration By him personally or through another of any Stupefying unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 6 with or without the consent when she is under 16 years of age.
Marital rape as an offence is no different than that of rape but it is highly ignored owing to the fact that in the Indian society it is believed that whatever happens in the bedroom stay in the bedroom. it is because of this fundamental reason that most of the wives are vulnerable to mental And physical trauma Without even realising that they have been a victim of abuse. In most cases women do not talk about their sexual lives and anything related to it because they do not want to demean the image of their husbands in front of the society another reason amounting to why women keep suffering without even uttering a word is because they’re too embarrassed to be judged by one and all.
Marital rape or spousal rape is the act of sexual intercourse without one spouse’s consent and such a lack of consent is the essential element amounting the offence of rape. Search being the heiniocity of the crime marital rape is still not a criminal offence within the Indian legal system except during the period of judicial separation of the partners exception 2 of section 375 off IPC states that sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape .Even though such an act can be a ground for matrimonial fault resulting in dissolution of marriage it is still not considered as a criminalised offence. Forceful sexual intercourse amounts to a form of cruelty And for such to be constituted as a cause for divorce it must be of such nature that .it produces a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party’.
According to the domestic violence act in acted in 2005 marital rape also amounts to sexual abuse under the law , under which aggrieved wives Or living partners are entitled to claim civil remedies, like injunction against violence, dispossession from direction to the husband slash partner to pay maintenance or damages.
However this exception has been restricted by the law in case where the wife has been living separately from the husband regardless of the fact that she has a degree of judicial separation or not. In such cases, the husband can be prosecuted for rape. If convicted the, The Indian Penal Code imposes a punishment for imprisonment of 2 years with or without a fine as stated in section 376 b of IPC.
Until 2017, there was a discrepancy between 2 sub clauses of section 375. An exception stated that “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”
But the same provision stated that a man is said to have committed the offence of rape if in case he has had sexual relations with the women with or without her consent, when she is under 18 years of age.
Precisely marital rape is viewed as rape just if the spouse is under 15 years old and the seriousness of punishment is milder however there is no lawful security in cases where a spouse has been subject to sexual abuse when he or she is above the set age group.
Aas said above, when the wife is between 12 – 15 years of age, offence Is punishable with imprisonment of up to 2 years or fine , or both.
otherwise, Wendy spouse is underneath 12 years old, the offence culpable with detainment of either portrayal for a term which might not be under 7 years but may also reach out to life or a term stretching out to 10 years.
Lastly, rape of a judicially isolated spouse, is punishable with retainment off up to 2 years and fine. But, rape of wife of above 15 years in age is not at all punishable.
Such a practice, in practicality injures the right to live with human dignity as stated in Francis Corallie Muin V. Union Territory of Delhi, The Supreme Court has stated that the offence of such rape abuses the right to life and the right to live with human dignity of the victim of the crime of such cruelty.
Not only this it also hinders the right to sexual privacy, the right to bodily self determination and unnatural privilege to have an uninfluenced choice into any sexual activity.
The NCRB in 2019 has established that almost 70% of crimes against women involve domestic violence and sexual harassment. Another report by NFHS in 2015 – 16 suggested that an average Indian women is 17 times more likely to face sexual abuse from her husband than anyone else . Simply put a girl is at a greater risk to get raped by her own husband let alone by any other man walking on the street.
Such statistics are alarming because marital homeIs considered to be the safest place for a wedded wife but ironically it also makes her vulnerable to be a victim of such grave abuse that absolutely shrugs her emotional physical and mental wellbeing.
With the evolution of society, people are woke enough to take action against such grave offence which is why several petitions have been filed in the Supreme Court of India since 2011 by various organisations, NGOs and various other public service bodies.
Sexual intercourse has been identified as a matter of choice, even by the law. Right to life as mentioned in article 21 of the Indian constitution guarantees all individuals to live a their life as per their own terms. The choice to have sex therefore resides with the person regardless of the fact that they are married. But sadly, such a guarantee if withheld when a person is married off. In the Indian society, the victim of such an abuse is usually female because they are treated as the property of her husband. Her primary role is to satisfy her husband and look after him, his family and his kids. When the question of the husband’s needs is in picture, the wife has to compromise because she is been expected to fulfil eve the sexual desires of her husband however impractical, harsh or unreasonable they may be.
In most cases, women do not voice the abuse that they go through because some of them do no know that they are actually being exploited in the name of love. She of them are too shy and fear societal pressure. While the worst caw scenario is that they are blackmailed by her husband / in laws.
Such suffering and abuse is recurrent because the male person can easily get away with this when the wife herself thinks that she is not strong enough to take a stand for herself. When this abuse happens over and over again, the wife keeps suppressing it and therefore suffers from chronic depression, anxiety, and other psychological challenges.
It is really saddening to realise that however the makers of the constitution have attempted to make a foolproof constitution, there still exist some lacunas that hinder the overall development law and that comes in the way of ensuring that the promise of protecting the fundamental rights of the individuals is lived upto. With a change in time, the trend of crimes also changes. Where in the 90’s major thefts and robberies were considered to be worse crimes, the 20’s faced the nature of crimes also getting more heinous. In the present world, crimes are far beyond recognisable because they happen behind a curtain. Be it marital rape, torture and abuse and the victim is left with no tangible cue to take a legal action agains such an abuse.
Towards the end of this , I would like to like to shed some light upon the need for some serious reform that are sought by the people of India from the legal system.
Just like various other countries like Albania, Argentina, Estonia, Hungary etc, India should also criminalise the offence of ‘Marital Rape’. Some executive bodies parallel to the women cells must be set up to help the women suffering from such an abuse. There was a time where women felt unsafe outside the house and the government took necessary steps to make them feel secure and to protect them as well as their legal rights but it is now time to make sure that women feel equally safe inside their matrimonial houses as well so that the sanctity of the relationship of marriage is maintained. Also the legislature must include marital rape as a ground for divorce so that a female can claim damages from her husband equivalent to cruelty and to make sure tats he leads a dignified life.
Written By: Ms. Kritima Sareen