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MARITAL RAPE: AN UNDEFINED CRIME IN INDIA

Author: Ayushi Kushwaha, IV year of B.A.,LL.B.(Hons.) from NRI Vidyadayini Institute of Science, Management and Technology , Bhopal (M.P)


How would you feel when I say that men continue to Rape their wives lawfully in India?

I am talking about Marital Rape, it is when a man imposes sexual intercourse on his wife with force or with the threat of force or when the wife is not able to give consent. Domestic violence is an inherent part of the lives of most women in India. As per a National Crime Records Bureau report, about 70% of women are victims of domestic violence. One of the biggest forms of this is marital rape. There is no proper definition of Marital Rape in Indian Law and above 18 years of age of a married woman, it is legal in India. No large importance is given to this topic in India due to the sacred nature of marriage in Indian Culture. Marital Rape not only exposes an individual to prolonged health issues and severe psychological trauma, but it also destroys the fiduciary nature of the marriage along with the individual privacy of the victim. According to World Bank Data, India is one of the only 35 countries in the World where Marital Rape is legal, surely that is not a good list to be. For years, Activists, Civil Society and people, in general, have been asking for marital rape to be criminalised but it does not seem like it will happen anytime soon, because the Government does not want to criminalise Marital Rape and that is problematic. The main reason for the marital rape is no reporting, because of fear of an insult in the society, women do not file a complaint against their husband and many women are dependent on the men.


What does the Law Say?

Section 375 of the Indian Penal Code, 1860 defines rape as “non-consensual sexual intercourse with a woman” and section 376 defines punishment for the rape. It differentiates consent given by a married woman and an unmarried woman. Exception 2 of Section 375 exempts unwilling sexual intercourse with a wife over 15 years of age from this definition of rape and wife above 15 years of age making it legal for men to rape women. Based on a study which was conducted in 1985, marital rape can be classified into three categories: Battering rapes, Force only rape, Obsessive Rape.


Marital Rape: Against Legal and Constitutional Rights

Indian Constitution guarantees the right to equality but Indian Criminal Law discriminates against women who have been legally raped by their husbands. When the Indian Penal Code,1860 was drafted, at that time a married woman was not considered as an independent legal entity rather considered as a property of her husband.

  • Violation of Article 14-The right to equality given in Article 14 of the Indian Constitution, ensures that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” so, as exception 2 creates two classes of women based on their marital status, it is against Article 14.

  • Violation of Article 21- Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law”. So, exception 2 is violative of Article 21, as it fails to protect wives from forced sexual acts imposed by their husbands, constituting a bad effect on their physical and mental health as well as their right to live with dignity.

In Suchita Srivastava v. Chandigarh Administration, the Supreme Court said the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy and dignity under Article 21 of the Indian Constitution.


In Justice K.S Puttuswamy v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right and specifically said that includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”


In the Independent Thought case, the Supreme Court, while deciding upon the extent of the applicability of Section 375 of the IPC in the case of a minor wife, had averred that sexual violence is an invasion of a woman’s right to privacy. Defeats the Spirit of Section 375 of IPC: The purpose of this section is to protect women and give punishment to those who engage in the inhumane activity of rape.


Government’s Response on Criminalising Marital Rape

In August, the Centre told the Delhi High Court that criminalising Marital Rape may “destabilise the institution of Marriage” and would become an easy tool for harassing husbands. The Centre in its affidavit also said that criminalising Marital Rape may also lead to its misuse. Just like Section 498A of the Indian Penal Code, which deals with cruelty to a wife by her husband or his relatives. This was the Government’s response to the petition which was filed by NGO’s, RTI Foundation, All India Democratic Women’s Association and a Marital Rape survival. The Petitions challenged the exception in Section 375 of IPC which defined Rape. The exception states that Sexual Intercourse by a man with his wife, the wife not being under 15 years of age is NOT RAPE.


Swaraj Kaushal {a Supreme Court lawyer} wrote in his tweet that there is nothing like marital rape. Our homes should not become Police stations, also there will be more husbands in the jail than in the house. Last year the Union Minister for women and child development, Maneka Gandhi said in the written reply to the Parliament that the concept of marital rape cannot be applied in the Indian Context due to various factors like social customs and values, illiteracy, the mindset of the society to treat the marriage as a sacrament. The Justice Verma Committee [which was formed after the Jyoti Singh or Nirbhaya Rape Case] recommended amending the criminal law and also recommended that the exception of marital rape should be removed. But this recommendation was rejected. As the Justice Verma Committee said that “the achievement of empowerment and equality of women has to be necessarily a conjoint effort of the individual and the state. Perhaps, India can learn a thing from its neighbours. Bhutan and Nepal do criminalise marital rape. Even the United States has been urging to do the same.


Conclusion

By the above-discussed case laws and statutory provisions, we can conclude that marital rape is not defined under IPC as a criminal offence and it also violates Article 14 and Article 21 of the Indian Constitution. In light of the above firstly, it is necessary to understand that marital rape is as horrible as rape. It is already violating the human rights of married women. Let’s not romanticise the idea of marriage to the extent of overlooking matters of grave concerns and let’s not let marriages turn into a state-sanctioned license to rape women. Although we have alternatives to such cases rather we should criminalise marital rapes.