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ANALYSIS ON THE LEGALITY OF MARITAL RAPE IN INDIA


Introduction


Marital rape is a facet of marriage that's solely not taken care of by this existing laws. This try to throw light on the aspect and therefore the existing laws which will be used as a defense by a partner just in case of marital rape. There are many descending opinions on the concept of marital law, few are that criminalization of marital law would flaw the institution of marriage and courts aren’t speculated to interfere within what goes around with a husband and wife. India is currently the seventh largest country within the world, and therefore the pace at which the crime rates are growing is extremely alarming and embarrassing for a thriving, multi-cultural, large and secular country like India. Marital rape isn't only the chief concern within the field of women’s rights at the instant, but it also violates several constitutional provisions at the identical time. Somebody rightly discerned that a country’s growth and development is assessed by observing the position and respect that it gives to its women.


According to Oxford Dictionaries, Rape means “the crime, typically committed by someone, of forcing another person to possess sexuality with the offender against their will” According to Cambridge Dictionaries, Rape means “to force someone to possess sex once they're unwilling, using violence or threatening behavior” Thus, from the above definition we discover that Rape means when one forced other person to possess sexuality without taking consent of the person. In every country including India, Rape is taken into account to be a heinous crime against women. Recently in India, the quantity of crime cases against women has been increased as per the knowledge released by National Crime Records Bureau. In every two minute one cases of crime against women is reported in India. per the report of NCRB, 2.24 million cases of crimes against women are registered in past decade. Crime which is reported includes both physical and mental torture. In 21st century, when we! discuss the equal rights and position of ladies in society and girls empowerment etc but one thing which always put question on the matter of the government is that the rise of crime against women and although, we had a sturdy law for the protection of ladies, but still we are lacking behind to manage such crime against women.


Now one thing which strike my mind, is that though we had strong law for the protection of girls but still the crime against women is rising year by year with some heinous gruesome story in it like Delhi Gang Rape Case in 2012, recent Nirbhaya like rape case of 30 years married woman in Kerala. These incidents shows that law of our land fails to shield the ladies of our country. India could be a country where marriage is taken into account to be as SAMSKARA and also one in every of the foremost important and basics aspects of Hindu social organization. And also it's advised in ancient legal history that it's the duty of the husband and wife to not disclose anything about their relationship beyond the four wall boundary of their bedroom. After Hindu Marriage Act, 1955 some changes has been made and included where wife and husband can make complaint against their grievance within the court of Law. But nothing has been discussed about the marital rape in Ancient India still as in Modern India. The plight of the wife in India is extremely much miserable in cases of Marital Rape because of absence of Law. The provisions are termed “partial exemptions or allowances”; which speak to factors like the degree of physical force, together with the lack of the wife to administer consent in cases of mental impairment . Under these conditions, marital rape is just sanctioned if the couple resides apart, legally separated or divorced . Lastly, the cause has also theorized that the perpetuation of marital rape may be a means of group action and dominance over women through the utilization of patriarchal families. The movement has went on to coin terms like “patriarchal terrorism” and “license to rape” (Martin, et al., p.332) to visit the group action of ladies by men. Martin et al. (2007) refers to patriarchal terrorism as a methodic use of violence by men to regulate women. The term “license to rape” is employed within the context where men control and dominate wives through forced sex without worrying of repercussions of such acts.


Status of Marital rape in other countries

There are many a nations who came up with laws safeguarding the rights of women’s and also they extended their laws to the rape, marital rape additionally lets comprehend some familiar nations who came up with it. United Nations of America: Marital rape is criminalized altogether the fifty states within the Unites States of America. However, not all the states within the u. s. of America treat marital rape as a rape. But some states like Ohio, Nevada treat them differently. But anyhow, marital rape is additionally a criminal offense under some section. For instance, in Maryland, two individuals who have separated divorce are totally strangers to 1 another. Any sexual act between the two are visiting be considered as rape done against will. This a component of the US law is reasonably the identical as that of India. the identical law applies to the Indian legal scenario. However, the twist takes place when two spouses are residing together, if one in every of them coerces, threatens or uses force on the selection, without the consent of the selection spouse, then a legitimate prosecution can occur. Laws within the USA vary per the state. In some places marital rape is taken into consideration null and void by law in all its forms. United Kingdom: lets realize the country who ruled us for about 200 years,In the uk, every kind of sexual offences are prohibited under the Sexual Offences Act, 2003. within the united kingdom too, marital rape is expressly considered against the law. A person is alleged to possess committed the crime of rape. It doesn’t matter whether the victim resides with the accused or not, knows the accused or not, or is or was married to the accused or not. What matters is that the element of consent. If the victim hasn’t consented to the penetration, then it'll be considered as rape. In A landmark case during this regard is R v R. during this case, the House of Lords held that it's possible under country code claimed that he can commit rape on his wife since the wife gave him irrevocable consent by the contract of marriage. Thus, as a reaction to the current, both the House of Lords therefore the Court of Appeal held that there is no exception of marital rape under nation law.



Laws guarding Marital Rape in India

In Indian system, Indian legal code 1860 is substantive legal code which lays down the components of offences and punishment. In IPC, provisions referring to rape are provided in sections 375-376. during this context, there's only 1 exception in section 375 which talks about rape of wife by her husband as: sexuality by a person together with his wife, the wife not being under fifteen years old, isn't rape. The intention of this exception of section 375 IPC is to safeguard the health of wife. In other words, if the age of wife is below fifteen years and her husband sexually intercourse along with her, it's rape but if the wife’s age is above fifteen years the Law has authorized to husband to rape his wife with none interference of State. This provision is completely unreasonable and unfair as just in case of gender with consent, it's rape if the girl isn't the wife of the person involved and is below sixteen years. On the opposite hand, it's not rape if the girl is fifteen years and doesn't consent but is married to the person. If the wife has been married with someone, her all rights are assigned to her husband and therefore the wife is helpless because she is married. Taking into consideration the discrepancy in laws of rape, the Law Commission of India in its 172nd report made the subsequent recommendations - 1. ‘Rape’ should get replaced by the term ‘sexual assault’. 2. ‘Sexual intercourse as contained in section 375 of IPC should include all varieties of penetration like penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal. 3. within the light of Sakshi v. Union of India et al [2004 (5) SCC 518], ‘sexual assault on any a part of the body should be construed as rape. 4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law. 5. a brand new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created. 6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence kicked off within the said section is committed with sexual intent. 7. Marital rape: exception of section 375 of IPC should be deleted. Forced sexual activity by a husband together with his wife should be treated equally as an offence even as any physical violence by a husband against the wife is treated as an offence. On the identical reasoning, section 376 A was to be deleted.



Conclusion

Taking into consideration the laws of other countries compared to the Indian nation, India is much behind from taking a step to form an exclusive law for MARITAL RAPE at the instant. Till a replacement law comes into being, the provisions from IPC and also the Indian Constitution may well be used as a defence. However, within the changing times every law has to undergo a change mutually is discovering new things everyday and human mind is continually evolving. Thus, till a replacement law is in situ, one can use the prevailing provisions. After a scrutinising study one can bring a replacement law in situ for Marital Rape or add relevant sections to IPC or the violence Act. In a conservative country like India, marital rape is simply too tricky to cater to. Indian society could be a dominant factor affecting the wife’s decision to stand-up for her rights. The survey conducted within the states of state and Gujarat observes that between 6 and 13 you look after young married women reported forced sexual experiences perpetrated by their husbands. Young women aren't matured enough to be married and understand the relation properly. habitation could be a symbol of such sharing altogether its aspects. In today’s world, studies indicate that between 10% and 14% of married women are raped by their husbands. 12 (IIPS and Population council 2004) 12% Women don't even report these cases for the fear of husband’s family and force by them. Wife is more likely to be advised to serve better the sexual needs of her husband. because of this dominant authority given to husband by our society, women feel inferior and are also courageous enough to report these cases. A victim of marital rape isn't harmed just physically but also her self-respect is harmed, especially because the rapist is her own husband. From a study of 6600 married men between the age of 15 to 65 in UP, it had been found whether or not they had ever had sex with their wives “even if she wasn't willing’ and whether or not they had ever ‘physically forced’ their wives to own sex. The wife’s financial independence plays a serious role in aiding her to shield her body and her dignity. Countries just like the uk have taken relevant steps to recognise this social evil and are constantly making new laws so as to fight this sort of an atrocity against woman. However, there are many counter arguments during this line of thoughts namely, that curbing marital rape would be an attack on the institution of marriage and thus would be constantly misused. this can be the explanation why the researcher suggests that the law making authorities may take time to analyse and scrutinise the implications and results instead of haphazardly put a law in situ. Marital rape, without a doubt, could be a violation of a woman’s right to dignity and wellbeing and thus, for a progressive country to thrive, a law should be brought into place.




References

  • http://www.oxforddictionaries.com/definition/english/rape

  • Vivek Surendran, all you need to know about the brutal Nirbhaya-like rape case of Kerala, Indiatoday.in, http://indiatoday.intoday.in/story/nirbhaya-kerala-rape-perumbavoor-dalit-law-graduate-instestines/1/657715.html

  • Justice M. Rama Jois, Legal and Constitutional History of India,247, Universal Law Publishing Co., (7th ed, 2010)

  • Mamta Rao, Constitutional Law, 100, Eastern Book Company, (1st ed,2013)

  • K.D. Gaur, Textbook On The Indian Penal Code,642, Universal Law Publishing Co. Pvt.Ltd, (4th.ed., 2009)

  • India marital rape victims' lonely battle for justice, BBC NEWS, http://www.bbc.com/news/world-asia-india-32810834

  • Poulomi Banerjee, when no is not an option: Marital rape denies right over her body, Hindustan Times, (May 25th May, 2015 ,1:40 am), http://www.hindustantimes.com/india/when-no-is-not-an-option-marital-rape-denies-right-over-her-body/story-MJ3OIHpn9mtVfC3AXbbWOP.html


Name- Pooja Chaudhary

Course- BA LLB

St. Xavier’s University


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