Author: Mihir Chandra, II year of B.A.,LL.B. from Babu Banarasi Das University, Lucknow
During the evolution of democracy there are now more lenient laws which are evolving and that should have the first priority to safe guard the personal rights and dignity of individual. From beginning women continuously faces violence and cruelty no doubt. During the past time colonial period, women have not their personal rights and was chattel under their husband or in the society. From the past till the present many laws have been evolved and if I talked about India then there are many.
But the air is now filled with the talks about marital rape. How this is even a rape? How we consider it as a rape?
Generally while having sexual intercourse the word consent matters and also there is age restriction. For example if a man tries to intercourse with the minor who is below 18 even by her consent then that will amount of rape and that person shall be booked under IPC 375.
Now the question is if the consent was not given by wife and if the husband forcefully try to sex with his wife then this will not amount to rape but if a man tries to sex with unmarried women then there is the offence of rape, how this come fair?
If we dive down to the fact that many men are now afraid with this debate, the most probable cause are:-
1) The concept of adultery
What if the women engaged in extra marital affair with another men? According to IPC 497 Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.
Now in present days the adultery is not comes under crime and has no validity under IPC. I have specifically mentioned this because always men will held responsible under this offence and not the women.
2) The concept of divorce and maintenance
Now as we know that adultery is not a crime but we can use adultery as a ground for divorce with the help of certain personal laws in which the marriage had performed. But the question is what happen after divorce? The concept of maintenance arises after divorce and either party have to give an amount of money depending upon their condition the problem is that if one of them are engaged in extra affairs and also enjoys the maintenance then how this come fair? I know if anyone of them is successful for proving the adultery then no maintenance shall be provided but the point is someone have to prove and this is the most complex process.
3) The concept of saptpadi under Hindu law
Under this there is seven steps around the fire and many promises have been made to each other. From one of the promise there is one where female promise to her husband that she is titally ready with him in mental as well as physical condition after marriage. From here the defense against marital rape arises because the word consent matters when it comes to rape and in this the female already given her proper consent.
Now this is all about under the Hindu law but what about other laws? If we want a uniform civil code then there should be separate laws under this. We can not put this concept under the narrower sense because this debate itself connected with the right of gender and a small mistake will leads many problems in the personal life of the person.
Legal point of view
Article 14:- Equality before law and equal protection of law
It means that law must be equal to all person and if there is any discrimination than it must be reasonable and rational and total autonomy of husband over the body of wife is totally arbitrary, unreasonable and violates the basic principle of Article 14
Article 15: Article 15 says that there must not be any discrimination on the ground of sex and making the sexual relation against the consent of wife violates the Article 15
Article 15 (3): No laws can be against the women but explanation 2 of Article 375 make it clear that Husband can not be punished for the offence of Rape
Article 21: Everyone have the right to take a decision over their personal life and body and making the sexual intercourse against the consent of wife is against the Article 21 of Indian Constitution
In the sakhi v. Union of India Supreme Court held that explanation (2) of section 375 of Indian penal code should be deleted forced intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is a treated as an offence
International law and marital Rape
In December 1993 the United State nations High commissioner for human right published the declaration on the elimination of violence against women .This establishes marital Rape as a human right violation . In 1997 UNICEF reported that just 17 states had criminalized marital Rape In 2003 UNIFEM reported that more than 50 states did so . The countries like Poland soviet union were first to criminalized marital Rape.
Recent countries to criminalise marital Rape include Zimbabwe (2001), Turkey, Cambodia (2005) Malaysia (2007) Thailand (2007) South Korea (2013). According to UN population fund more than two third of the married women in India. Aged between 15 to 49 are severely beaten or forced to provide sex
Ongoing debate views and argument under Delhi High court
The bench said, Is the firewall justifiable on the test of Articles 14 and 21? It is only that narrow aspect that we have to look into. To say that the wife can go and seek divorce if the husband imposes himself on her is not the issue here.
“Why is it so different from an unmarried woman? It affects an unmarried woman’s dignity but it does not affect the dignity of a married woman? How is it? What is the answer to this? Does she lose her right to say ‘no’? Have 50 countries (which have made marital rape an offence) got it wrong?
The bench did not appreciate the argument advanced by the Delhi government that a married woman has the remedy to divorce on the ground of cruelty under the personal laws and she can also register a criminal case against her husband under IPC section 498A (cruelty to married woman).
The exception to section 375 does not violate the admitted right to privacy, dignity or the right to refuse sex in or out of marriage because there is no compulsion on a woman and she is not remediless. While opposing the pleas to strike down the exception granted to husbands under the Indian rape law, the Delhi government counsel said the petitioners would have to show that this exemption compels a wife to cohabit with her husband and violates her dignity. The Delhi government counsel said if the court comes to a conclusion to strike down the exception, a new offence will have to be created and the constitutional scheme does not permit the judiciary to create a new offence as it does not have the machinery as that of the legislature.
This debate is still are going in the court and there is no any final decision but we have to give our opinion on this topic because the work of the law makers is to just made the laws by keeping all the sentiments of the society together but in personal life we have to face the consequences and there is no doubt if the problem arises then there is lot to take and half of life will get spoiled.
In my point of view there should be law which should criminalise the marital rape and protect the right and dignity of the women as a whole. But there should be laws or there should be a proper direction for men also so that the rights for them are also protected because as evolving of many laws for women there is increase in false cases against men which itself make women as a immune entity against men.
No doubt women face many problems but in this modern democracy every persons rights are important and should be provided equally. Improvising many laws is not the solution, the solutionis to implement one law as whole and with full potential.
I would like to end my article with the quote:-
Democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation - Atifete Jahjaga