MARITAL RAPE; HIS RIGHT OR CRIME?
A man’s home is his castle, but a woman’s body has never been wholly her own. Historically it belonged to her nation, her community, her family and her husband. Why shouldn’t her body belong to a fertilized egg too?
INTRODUCTION
When you asked them about their married life it’ll always be a perfect. Sexual life they don’t talk much about it as any domestic violence but if you just sit and listen to the humor they do you’ll realize that they don’t even know that they have right to say no to any sexual activity. Marriage is considered as a sacramental union and thus sacrosanct but it is totally contrary to the reality of women in a marriage. This union leads to the harassment and humiliation of married women. 85% of women face domestic violence by their in-laws and husband. When sexual intercourse is done without the consent of wife, it is called marital rape. The lack of consent is the indispensable element and need not involve brutality. Marital rape is a crime that is covered under the curtains of marriage. According to the national family health survey, the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. Marital rape is a human right issue that yells for care and convalescence legally and socially.
The offence of sexual abuse faced by married women is more than in prostitution. Marital rape is not criminalized in India. When the relatives believe marital rape or assault to be a vital part of the everyday life of a woman or above all the tradition that must be adhered to assurances balance under the steady gaze of law turns a deaf ear to the voice of that aggrieved women. Today in the 21st century many women activists raising their voices against the wrongs committed to women, marital rape has somehow stayed because of the exemption from criminalization. Marital rape is a crime against human rights without legal remedies.
Rape is defined under section 375 of the Indian penal code 1860, to commit rape there are some acts and circumstances mentioned under this section that are-
Acts-
• Penetration- in vagina, mouth, urethra, or anus of woman.
• Insert- any object or part of the body
• Manipulates- any part of a woman to cause penetration into any part of the body.
• Applies- mouth to vagina, anus, urethra of a woman
Circumstances- when any of the above acts done within these circumstances it will be called rape under section 375 of IPC.
1. Against the will and desire of a woman
2. Without her consent
3. Consent obtained by putting her or someone she’s interested in, in fear of instant death.
4. Consent given because of the misconception that the person is her lawful husband and the man knows that he`s not.
5. Consent given at the time when she’s is intoxicated or by unsoundness of mind.
6. Consent given when she’s under 18 years of age.
7. When she’s unable to communicate consent.
MARITAL RAPE IN INDIA
Indian rape law has the most inscrutable loophole that gives impunity to marital rapes. It is considered that marital rape is the essence of implied irrevocable consent to having sexual intercourse. Because of the ancient standard, marital rape isn't seen as an offense, it is suggested that in marriage the life partner gives consent to all the conjugal responsibilities including sex and that husband can have sex anywhere, whenever and of any kind against the desire of his wife which is binding upon the wife and she cannot breach it. It has been seen that 2/3 of married women in India age 15-59 have been beaten up and forced to have/provide sex to their spouses, regardless of their socio-economic conditions. ( UN population fund), Every 1 in 5 men has forced their wife or partner to have sex( international men and gender equality survey 2011).
MARITAL RAPE AGAINST FUNDAMENTAL RIGHTS
Violative of Article 14: This Article enunciates equality before the law and equal protection of law to every individual. Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution. When rape is committed by another it is punishable but it secures the husband from the punishment when the crime and trauma committed are the same. This inoculate the prolong actions by men against their wives. These exceptions in IPC somehow make married women the victim of rape without remedies just because of their marital status while providing remedies to unmarried rape victims
Violative of Article 21: this article is interpreted in Menaka Gandhi v. Union of India. This gives the right to life and personal liberty and ensures that no person shall be denied the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity.
In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence is a brutal act, also it is infringement of the right to privacy and sanctity of a female.
In case of justice k.s. Puttaswamy v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens. the Supreme Court has concede that every woman has right to refrain herself from sexual activities, disregarding their marital status, as a fundamental right. All these above discussed cases focus on the point that forceful cohabitation with wife violates her right to life and dignity and against fundamental rights provided under article 21 of the constitution.
JUDICIARY ON MARITAL RAPE
In the milestone judgment of Independent Thought v. Union of India, the Supreme court criminalize sexual intercourse with girl child under 18 years of age .and said that a girl child below 18 years of age does not lose her status as a child in need of care and protection just because she gets married.
Under the Protection of Women from Domestic Violence Act, 2005, a marital rape victim can file for judicial separation but it’s scanty to safeguard her from this crime and to furnish righteousness. All laws related to rape has loopholes and not able to empower woman against marital rape.
Recently, the Gujarat High Court in its new judgment on Nimesh Bhai Bharatbhai Desai v. the State of Gujarat, says that it’s high time to remind husbands that marriage isn't a license to sexually assault their wives. Marital rape is an offense that destroys the trust and the foundation of marriage. In Maharashtra v. Madhukar Narayan supreme court says that every lady is entitled to her sexual security and it isn't accessible to anybody to exploit her privacy at any time he desire.
WHY CRIMINALIZING MARITAL RAPE IN INDIA IMPORTANT
“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, i would hate him as a rapist”.
Marriage is an underpinning of our society, and if the state refuses to enter into this private space of society it can lead to the fact that the state promotes the patriarchal view of a wife bearing the weight of families’ image and leaving all her rights provided under the constitution as an individual.
the Supreme Court in Independent Thought v. Union of India explained that if the judicial separation has not annihilated the institution of marriage, something besides the Indian State criminalizing marriage itself can't destroy the foundation of marriage and hence criminalizing marital rape unquestionably can't either. Consequently, the High Court of Gujarat likewise decided that the non-consensual act of marital rape violates the trust and certainty inside a marriage and that marital rape is the thing that has harmed the institution of marriage.
There are many ways to find out if a woman is a victim of marital rape. SNEHA a nonprofit organization active in Mumbai points out that they’ve seen many cases where a woman is forced to have sexual intercourse right after delivering the baby or termination of pregnancy which is very harmful to her own health and against the medical advice. Research has proved that how sexual assault does not just result in mental cruelty but has led to consequences like injuries to private organs, lacerations, irritation, bruising, torn muscles, weariness, and spewing. Gynecologists say that it can be a reason for unnatural birth cycles, stillbirths, bladder contaminations, infertility, and the likely contraction of sexually transmitted diseases including HIV. All this can be of use only if there is a law in the first place. Justice Verma in his report 2013 recommended that the exception to marital rape in IPC should be removed as it was related to the very long outdated idea that wife is property of husband and now the scenario has been changed. Marriage should not be considered as an irrevocable implied consent to have sexual intercourse. The relationship between the victim and accused is irrelevant. A rapist without any exception is a rapist, the relationship between victim and accused is unconcerned.
INTERNATIONAL LAWS ON MARITAL RAPE
The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” In a landmark judgment, R v. R, in the United Kingdom, a husband defended the ‘conviction for attempted rape’ on the ground that marriage gave unchangeable consent. His contention was refuted and the court convicted him as the exception to marital rape as a ‘legal fiction under the common law’. The court stated that for a person to be penalized for rape the relationship between parties is immaterial. Indonesia also punishes a husband who forces sex on his wife with imprisonment of 15 years. In 1993 marital rape became a crime in most states, in Columbia; there are no exemptions from rape committed by husbands.
India is one of the 36 countries where marital rape is not criminalized yet. In 2013, the UN Committee on Elimination of Discrimination against Women (CEDAW) recommended that the Indian government should criminalize marital rape. Despite India being one of the signatories of the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). it is high time now, India should criminalize marital rape by judicial pronouncement or legislation by parliament.
CONCLUSION
Rape is one of the most sinful acts. It destroys the dignity and self-esteem of a woman, rape is rape whether done by a stranger or husband, also when rape is done by some very close like husband the crime and pain became more personnel and painful you live with your rapist what can be worst then this. Still our laws not recognize marital rape and protect rapist husbands from prosecution. Allowing forced sexual intercourse in a marriage is a violation of the fundamental rights of women under section 21 to live with human dignity and good health. It also violates Section 14 by exempting the criminalization of rape committed by the husband. It’s been 70 years now that India got its independence still all the union governments have failed to criminalize this act. Also, they continued to protect husbands by giving reasons that’s it can affect the basic of the institution of marriage and is against society. They say that women will misuse the law made against marital rape. But it shows that how they’re ignoring that with proper medical operations and investigation by doctors, justice can be done.
To protect women from such heinous crimes we need proper legislation. Rape should be considered rape the relationship between accused and victim should be immaterial while criminalizing rape cases. To address this issue on the broad level there is a need to discuss the issues women face in their houses until then the condition will not improve. The Verma Committee recommended sexuality and gender education to children. According to the adult literacy programs it can be a good start for gender empowerment. a marriage should always give equal rights to both husband and wife and they both should respect the boundaries of each other it should be considered as an equivalent association. But this view is not accepted in our society and as a result marital rapes happen. As of now, there’s no legal remedy/law which protects the married woman from rape.
NAME- PARUL BHATI
COLLEGE- LAW CAMPUS-1, UNIVERSITY OF DELHI