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MARITAL RAPE- A NON-CRIMINALIZED CRIME



Marital rape is sexual intercourse act without the spouse’s consent. It is additionally known as spousal rape. Marital rape is considered as a form of domestic violence. When two people engage in any sort of sexual intercourse, it is important to ask for consent (even when married) without permission it is considered as rape/ sexual abuse/ domestic violence.

Marital rapes are more widely experienced by women. Even today there are many women who go through marital rapes which leads them to take severe steps such as suicide. Today if we see almost 100 countries have criminalized marital rape but India and other 38 other countries who still has not criminalized marital rape.


In India it is said that when a man and woman are married, they have consented to have sexual intercourse, it is called as “implied force”, it is considered and presumed wife’s duty to give perpetual consent to her husband for sexual intercourse, where it is not considered as a crime.


Section 375 of Indian penal code (IPC) provides the definition of rape which includes all forms of sexual assault involving non-consensual intercourse with a woman but somehow section 375 has also violated the rights of the married women, who are the victims of marital rape. Hence, it is also the Violation of article 14 right to equality as husbands consider themselves superior. Women want to be treated equally with their husbands so as to have a healthy married life.

More than 70 percent of women in India face domestic violence and marital rape is one of them. Even though there are several rights given to women for their protection but a proper legal remedy should also be given to them.


In past few decades many debates took on why marital rapes should be criminalised but even today it is still pending, there are some important points on why it should be illegal:-

  • Marital rapes are against the dignity of women, so by criminalising the martial rape women can take a step forward in terms of equality.

  • Even today if we see patriarchal mindset is still there. So, for women to move socially forward in life it is very important.

  • Rape is a crime so whether it takes place outside or inside the house, by a known or by unknown, married or without married without the consent of both the parties it is considered a crime.

  • Rape inside or outside marriage should always be treated in a same way as the consent is very important.

  • It is the violation of article 14 and article 21.

  • Our constitution has been adopted by United Kingdom, it is one the most progressive societies in the world and it has put severe charges on attempt of marital rape.

  • During ancient times and even till today women are treated as their husband’s property. So, by considering them as property they tend to treat them like waste and think that they have liberty to do whatever they want with them. So, criminalising marital rape will improve the condition of women in society.

  • It will make them stronger from legal point of view.

  • In the world population report of United Nations, it suggested that majority of women in India face such incidences in life and hence it is not okay to keep quite, some actions should be taken so as to empower the women.

  • In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.

ROLE OF EDUCATION IN WOMEN’S LIFE:


Despite of many laws provided to women for domestic violence, many women mostly in rural areas do not stand for their rights in fear of that they will ruin their marriage and they will have no shelter under their head as most of these women are depended on their husbands financially and women are engaged on household work. There is a major problem of illiteracy in rural areas where girls do not get proper education due to which they are not financial independent. They are asked to keep quite most of times by their own relatives and parents.


Under Section 375 of Indian penal code (exceptions) has created a classification not only between consent given by married or unmarried woman, but it has also given consent to married women whole are below the age of 15 and over the age of 15. Any classification of this sort does not pass the test of “intelligible differentia- means something which is capable of being understood”, therefore, prima facie in contravention to the Right to Equality enshrined under Article 14.


PIL was filed in 2017 by Independent NGO, challenged unintelligible classification and claimed that women who are married over 15 years of age should also be afforded this protection. After this PIL the Supreme Court concurred with these averments to some extent and extended the age limit in Section 375 from 15 years to 18 years. This step is just a small step which has given women right but it is high time that the legislature should remove this exception section 375(exception). By removing this law, women who are dealing with martial rapes will be free from their abusive spouses.


MARITAL RAPE VIOLATES FUNDAMENTAL RIGHTS:


-Violation of article 14- Marital rape violates article 14 of the constitution which right to equality and it is because men consider themselves as superior to women and they treat their wife as their property. Men are given more importance in our society which makes them feel above women in every aspect which most of the times lead to domestic violence.

-Violation of article 21- According to the Supreme Court it includes the rights to privacy, health, dignity, safe environment.


In the State of Karnataka v. Krishnappa, In this the Supreme Court held that any sort of sexual violence apart from a dehumanizing act is considered to be as an unlawful intrusion of the right to privacy and sanctity of a female.

In the judgment, it was also held that ‘non-consensual sexual intercourse’ amounts to sexual and physical violence.


In Suchita Srivastava v. Chandigarh Administration,

In this case the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.


These judgements of the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.

Therefore, forcing for sexual intercourse is a violation of the fundamental right under article 21.

  • In 1881 the most horrific case of marital rape of Phulmoni Dasi v. Hari Mohan Maiti took place where Phulmoni Das was 11 years old (child bride) who was married to Hari Mohan who was in his mid-thirties. She dies due to excessive amount of bleeding during sexual intercourse. The reports clearly mentioned the cause of death was ruptured vagina but still her husband was acquitted from the charge of rape because no charges were mentioned for marital rape. A man was permitted to have sexual intercourse with his wife without her consent.

  • But, Hari Mohan was charged under Sections 304, 304A, 325 and 338 of the IPC. It was held by the Court that a man did not have the right to enjoy the person as his wife without considering her health and safety.

  • This case triggered the age of consent for child brides, so the colonial government made an amendment in the Age Consent Act,1861 in which the age of consent raised from ten to twelve years.

  • In 2018 when Supreme Court of India after the exception for married women the age was between fifteen and eighteen. In that landmark judgement the Supreme Court held that a man if a man commits rape or if he even engages in any sort of sexual intercourse with his wife who is between the age of fifteen and eighteen will amount to rape even if he is her husband. It was the first time that any legal recognition was given to married women who are below eighteen years.

Current Judgment on Marital Rape:

Recent judgement passed by Gujarat Hugh Court on case of Nimesh Bhai Bharat Desai v. State of Gujarat. In this judgement while explaining the law related to sexual offences, the court observed that the husbands need to be reminded that marriage is not a license to forcibly rape their wives. Women are not the object to ownership at all. When a woman is born or married, all she need is to be treated equally to men, by marrying someone she does not devote herself to her husband, she should have her own identity and name. Marital offence is offence which is very disgraceful. It somehow breaks the trust of people from marriage.

The Gujarat High Court mentioned that whenever something like this happens the accused must be charged for outraging the modesty of his wife and a proper investigation should be conducted.

CONCLUSION:

We see rape as a serious crime but marital rapes are not given as much importance. It is important to know that “RAPE IS RAPE” irrespective of the age of the survivor or culprit, marital or extra-marital. Even though India law has now made independent identity for both husband and wife. But, it is high time that legislature should also criminalise marital rape by eliminating section 375(exception) of Indian Penal Code.

Reference:

www.drishtiias.com

indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/

www.insightsonindia.com

BY: MANSI NEGI, BA.LLB (4TH YR),

COLLEGE: DELHI METROPLITAAN EDUCATION, (GGSIPU)

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