Author: Yashika Mor, II year of B.A.,LL.B. from Geeta institute of law
Abstract
Marital rape has generated a great deal of discussion in India. In contrast to the majority of industrialised countries, India has not yet criminalised marital rape. Due to the patriarchal nature of Indian society, campaigners and the Indian media argue that marital rape should be made a crime there. However, a more conventional viewpoint contends that because Hinduism holds marriage in high regard, the institution shouldn't be endangered by criminalising marital rape.Despite being founded on the principle of justice, India has failed to recognise a woman's freedom to govern marital interactions as a component of equality. The only option left for victims of marital rape in the country is to file a lawsuit because there are no legal protections against it. Even though they have used a variety of methods to detect the crime and have imposed severe fines, courts are constrained and thus unable to define marital rape as "forceful intercourse by a man upon his wife" due to the absence of statutory criteria. The legislature is necessary because the judicial system is insufficient on its own.To reflect the situation of society today, the laws need to be revised. The government has presented two reasons before the Delhi High Court in support of its stance that marital rape shouldn't be made a criminal. First, criminalising marital rape would cause societal unrest because of India's stringent religious rules and the holy nature of marriage.Second, given the various unfounded charges that may be levelled against husbands, it shouldn't be considered a crime. Dismantling the presumptions held by the government and other Orthodox organisations is essential. Since what a woman perceives as rape may not be what other people would characterise as rape, the Indian government has claimed that marital rape cannot be criminalised.This claim shows how archaic Indian society is because it is now regularly used as a defence in rape cases. The victim and his or her permission are the only factors in a rape. If a woman feels violated, she will break the law. Only that standard shall be considered. The incident's or the woman's behaviour in this case's social perception cannot be a factor. Therefore, it doesn't matter whether the wife and others hold opposite opinions. This cannot be used as a defence to withhold justice from her or to deny that a rape occurred.
Introduction
Marital or spousal rape occurs when a spouse engages in sexual activity without consent. Lack of authorization is the crucial element, which need not involve physical violence. Marital rape is seen as a kind of domestic violence and sexual abuse. Having sex outside of marriage, which was once thought to be a right of couples, is now primarily considered as rape by many countries throughout the world, prohibited by international agreements, and increasingly criminalised.
Though that isn't always the case, women are more likely than males to endure marital rape. Marital rape is a common occurrence in abusive marriages and is a kind of ongoing victimisation. It is intricately intertwined with regional laws, social mores, and cultural norms that interact to shape each distinct event and circumstance in a distinctive way. Due to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and cultural expectations of a wife's subordination to her husband—views that are still prevalent in many parts of the world—non-consensual sex between married people is not criminalised or prosecuted.In the majority of Western countries, second-wave feminism in particular started to question these views on marriage and sexuality in the 1960s and 1970s. As a result, the woman's right to self-determination in all matters relating to her body was recognised and the exemption or defence of marital rape was eliminated.
In India, marital rape has a very long and difficult history. The legislation prohibiting marital rape had also been established and somewhat updated. Only a little bit had been changed. The issue of marital rape has not received as much attention as rape has. There is no legal definition of marital rape; rather, it is only described by some authors and political and legal theorists.A significant portion of the world has historically seen marital rape as a crime, tort, or theft of a man's property. Because property damage in the context of marital rape refers not to injury to the victim but rather to her father's or her husband's properties, some individuals believe that a husband cannot rape his wife. In light of this, it is obvious that a husband cannot be made to pay for raping his wife. A husband cannot rape his legally wedded wife if they are living together. Before the 20th century, it was thought that a woman's legal rights would be assumed by her legitimate husband once they were married.If you get married, your spouse won't be accountable for the rape you committed together, according to this theory. However, you would only be accountable for your own rape actions. According to several traditions, getting married does not require consent. Since consent is not required for sexual behaviour, it follows that it is not required for marriage. In some communities where the bride price is paid, even the wife's independence is compromised.While forced sex during marriage was authorised in some parts of Africa, women did have the right to reject in some situations, such as those following childbirth, throughout the menstrual cycle, or when a close relative passed away. Up until relatively recently, rape was viewed as a crime against honour and dignity under both domestic and international law. The Geneva Fourth Convention mandates that women be provided with further protection from offences against their honour, such as rape, forced prostitution, and other indecent attacks. Rape has only recently been recognised as a crime against women's autonomy, dignity, and reputation, having not been recognised as a violent crime against human dignity until 1990.She decided to put her dignity, reputation, freedom, and liberty before those of her father, family, or even her husband's honour. Some traditional myths hold that a female's virginity is the only property that is withheld from her, making her the father's property prior to marriage and the husband's property following it. A man cannot be held accountable for the rape because his wife was in her care at the time.Raping his second wife, however, might be viewed as a serious theft of that man's property (women's sexuality). The regulations that had been designed to safeguard the property interest that man had in his women—and not to defend themselves—were based on the belief that bride capture constituted stealing the father's property by raping his daughter. The idea that women are property has had an impact on marital rape ideologies and laws.
• Is rape in a marriage a crime?
Rape certainly violates a person's fundamental right to physical integrity and dignity, whether they are married or not. Because marital rape satisfies the requirements for an offence, including hurt, pain, a violation of a fundamental right, and the humiliation of women with the aim or mensrea, it may be possible to hold out hope that it may be prosecuted as a crime. These types of biases cause the law's application and enforcement to be inconsistent with its spirit. One might comprehend the purpose of the law given the current circumstances. In order to protect people from abuse and uphold the sacredness of the matrimonial institution, laws are developed.These are not utilised to defend the dignity of women or save the lives of battered women.
Conclusion
Marital rape in India has a very troubled and lengthy history. The law that forbids marital rape has also been developed and revised to some extent. There had been very little change. Compared to other rape-related issues, marital rape has not received as much attention. Marital rape is not legally defined; rather, it is only characterised by some writers and political and legal theorists. In many parts of the world, marital rape has been considered a crime, tort, or theft of a man's property.Marital rape is not a crime in India. In India, there is no absolute law governing that. Acts, regulations, and legislation pertaining to marital rape are either obscure or non-existent, and it also depends on how the courts interpret them. There is a rape provision in the IPC, but there is also an exception for marital rape: "Sexual intercourse of a man with his lawful wife, when the woman is not a minor, is not rape." According to Section 376 of the Criminal Code, which details the penalties for rape, a rapist may be detained for a period of time up to 10 years, rather than only 7 years. In addition, unless the woman was her own spouse, and at the penalty of penalties, she was not less than 12 years old.In this particular circumstance, the rapist may receive a minimum sentence of two years in jail. Both the penalty and the fine may be imposed. Therefore, it might be argued that if the spouse is under 15, the marital status will be taken into account. There is a misconception that a husband cannot rape his wife because possessions damage in a case of marital rape does not refer to harm to the victim but rather to her father or her husband's goods.Rape clearly breaches a person's fundamental right to physical integrity and dignity, regardless of whether they are married or not. Even though the Indian Constitution grants the rights to equality, liberty, and dignity to anybody who disagrees with the Indian people, this paradigm is rarely contested in practise.This notion holds that a marriage can be approved by the court. This clause is considered to mean that both parties to the marriage have given their consent. The phrase used completely diminishes women's rights. The Manusmriti is the sole basis for the notion that marriage shouldn't be messed with.Instead of overtly refusing sex in the Victorian era, it was said that doing so would lead a woman to violate her religious commitments and deviate from the path of the ideal wife. This particular argument fails to take into account the fact that marital rape is a particularly serious form of rape.