Author: Somya Sharma, I year of B.B.A.,LL.B.(Hons.) from The Northcap University
Marriage is a pure bond between two people , marriage is not the beginning of the journey ,nor the end , it is the journey of love , affection , respect and understanding , but this understanding is lost in some marriages and due to which cases like marital rape arise.
In India arranged marriages are given more preference over love marriages and many a time the would be wife and husband do not get proper time to meet and understand each other which becomes a big problem on a later stage as the two might not like each other or may not fit according to the expectations of the spouse , which becomes difficult for the couples to adjust with each other . The situation becomes terrible especially for women as they get trapped into bad or abusive marriage and the husband don’t care about what their wives think and want and they only think about themselves and complete their motive one such motive and need in such abusive marriages are sexual relation with the partner without there concern also known as marital rape.
What is marital rape?
Marital rape also reffered to as ‘spousal rape’ is sex by spouse with his better half without her assent or by compel or danger . This destroys the mental health of the victim , it happens mostly/ always with woman , gets traumatized day and night , for weeks and months and gets judged by society if she takes any action to protect herself or is seen to be a woman who disobeys her husband.
Status of India on marital rape law
Recently many petitions are filed in the High Court of Delhi to criminalize marital rape under Section 377 by various women organizations in the effect of increased marital rape. On 21 january 2022 the discussion on the subject were continued before the Delhi high court for criminalising marital rape , amicus curiae Rebecca John said the expectations of sexual relations by a husband cannot end up being forcible sex with his spouse . John told the bench of justices Rajiv Shakdher and C Hari Shankar that while there’s no doubt that there was an expectation of sexual relations in a marital relationship , consent can only be achieved through dialogue , and if the wife is also willing and ready to have matrimonial relations.
“Expectations are not wrong . Both sides either male or female, can have expectations . however, that expectation cannot result in husband having forcible sex with his wife . The problem isn’t regarding expectations ; it is about the man exercising his dominant right over the spouse , despite the partner saying ‘I can't and will not have physical relations with you’ ,” John said , after C Hari Shankar asked her about the expectations that a husband may have in a marital relationship and the discussion continued.
On 24 january 2022(Monday), senior advocate Rebecca John , completed her arguments. She submitted 498A (domestic violence) can’t be a substitute for 375(2) as it is altogether a different offence. IPC 498A includes the component of cruelty . It’s not anyone’s case that the rape is not cruel act but the cruelty required for the fulfilment of [IPC]498 A is a bit different from the descriptive sexual acts without the woman’s consent in section 375. Each of these offences are standable offences , different in their nuances , understanding and ingredients ,’John argued.
While winding up her arguments , John talked about ‘a lot of hate mail’ in connection with the case and was even asked to withdraw herself from the matter because she has an opinion on the topic. To this , the court said that if having a view was a ground for recusal, then judges would have to rescue themselves from every case.
Laws on marital rape in India
As the law is yet not amended their is no law for marital rape . some laws against sexual relation with spouse exist like:
Section 375 which says that sexual act by a man with his wife , the wife not being under fifteen years of age , is not rape .
Before the enactment of the Indian Penal Code 1860 , rape was not a crime against a woman , as they are considered property of father before marriage and after marriage , their husbands .
It is an offence to have sexual relations with the wife if she is between 12 to 15 years of age , punishable with imprisonment upto 2 years or fine, or both.
The rape of wife above 15 years of age is not punishable.
Law in other countries
In many countries like united states , nepal , britain and south africa , it is a crime for a husband to rape his wife . marital rape is not a crime in 36 countries including India, mayanmar , pakistan mainly includes developing countries . in Andorra rape including spousal rape can be punished upto 15 years of imprisonement the penal code does not exclude marital rape from it’s definition of rape.
Conclusion
Nearly 1in 5 women aged 15 to 49 face physical or sexual abuse from their husbands . it is important for countries like India to make a law against marital rape as women are considered property of their husband’s , it is important for the betterment of mental health of women . It is appreciable as the petition is finally filed and some action against it is assumed from the high court of India.