This article is written by Areeba Ahad of Vitasta School of Law and Humanities of 10th Semester, Intern under Legal Vidhiya
ABSTRACT
Marital rape is defined as an act in which a person engages in sexual activity with their spouse without the spouse’s permission. Rape is supposedly a crime that only occurs between total strangers.The legal definition of rape is when a person intentionally penetrates another’s vagina, anus, or mouth with a penis , without the other person’s consent or will. Rape is rape regardless of the relation between rapist and victim. It can be a total stranger, a friend, a boyfriend, a live-in partner, a neighbor, or a former partner, someone you are married or have been married to in the past. In marital rape, the circumstances are very different. Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. Rather looking for solving a social issue in a legal manner, we should focus on changing the ideology of the society. There should be change in patriarchal norms men should consider women with dignity and not a sex slaves and most importantly by emphasizing behavioral change among men that NO MEANS NO
KEYWORDS- MARITAL RAPE, UNHOLY MARRIAGE, STAMP PAPER SEX, SPOUSE, CONSENT, SEXUAL INTERCOURSE
LEGAL POSITION
Not a criminal offence as it is mentioned under exception i.e. exception 2 under section 375 of IPC.
What does this exception mean- exception 2 to section 375 of IPC the section that defines what offence of rape says – sexual intercourse and sexual acts by a man with his own wife, the wife not being 15 years of age, is not rape.
TIMELINE
The rape laws in India have undergone numerous changes since pre-independence but this exception to marital rape has always remained because e of patriarchal norms in our society this exception has been part of IPC since its inception in 1860 having been justified by lord Macaulay in his original draft of criminal law in 1839 as an exception necessary to protect the conjugal rights of a husband. In 2000 the law commission of India, while considering several proposals to reform India’s laws on sexual violence, rejected any need to remove the marital rape exception, saying, we are not satisfied that this exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship
The Justice JS Verma Committee, tasked with proposing amendments to India’s rape laws after the horrifying Nirbhaya gang rape and murder had included the deletion of the marital rape exception as one of its recommendations. However, the amendment was not accepted by a parliamentary panel in 2013.
In 2015 when the marital rape government was questioned in parliament about marital rape, then Minister of State for home affairs haribhai parathibhai Chaudhary responded “Marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society IN 2017, the supreme court held that the section should read “the wife not being under eighteen years of age ”but this judgment was limited to making sure the IPC was in line with the age of consent, and hence did not address the larger problem of the marital rape exception for adults.
Another significant judgment came in the year 2021 when Kerela high court ruled Marital rape as a valid ground for divorce. Treating your female partner’s body as something owned to the husband and engaging in sexual acts against her consent or will is nothing more than marital rape. The court ruled
The Delhi high court in the case of RIT V. UNION OF INDIA AIR 2022 SCC ONLINE DEL 1404 on May 2022 saw a split decision on the constitutionality of the marital rape exception
Justice Rajiv shakdher held that exception 2 to section 375 (which prescribes marital rape exception)is violative of articles 14, 15, 21, of the constitution and hence must be struck down.
Because marriage is a religious event, any sexual act performed while a couple is together is both acceptable and legal. When there is a lack of permission for sexual contact or penetration, the definition of rape stays the same. So establishing the absence of consent is crucial to proving the crime of rape. Usually, it is up to the victim to demonstrate that there was no consent. Consent may not exist in some situations, such as when it comes to minors, who are presumed by law to be incapable of giving their consent for such sexual acts. On the other hand, there are situations where consent is more likely to be present, and this assumption frequently applies once the victim and the offender are married.
It’s a component of marriage that the current legal framework does not address. Women are entitled to protection, but the woman’s husband, whom she married in good faith, repeatedly forces sex on her without her permission in an effort to torture and injure her. The thought of being raped while still married could make the wife physically ill. Rape can be seen as a violent act committed against a woman in an effort to offend her modesty. It has been deemed a humiliation and the worst crime against human dignity by the Supreme Court of India. Rape is more than simply a physical assault; it also involves the whole devastation of the victim.
JUDICIAL POSITION:
Examining several cases as well as the past decisions on the severe harm caused to the wife by the husband. The rule of marital rape does not apply to husband and wife after the age of fifteen years, according to the ruling in the case of QUEEN EMPRESS V. HAREE MYTHEE AIR1890In this instance, the husband violated section 338 of the Indian Penal Code, 1860 by rupturing his wife’s vagina, causing an injury that resulted in her death.
A husband raping his wife is a crime, according to the ruling in the English criminal code case R v. R AIR 1992. The rape conviction was maintained by the Court of Appeal and the House of Lords, who ruled that English law does not recognize a marital rape exemption. While they were away, R broke into the home of his wife’s parents and forced her to have sex with him against her will. In accordance with Section 1(1) of The Sexual Offences Act of 1976, he was detained on a rape charge. In the case of EMPEROR V. SHAHU MEHRAB AIR 1917, The husband was found guilty of murdering his young wife through impulsive and careless acts of sexual activity with her, violating section 304A of the Indian Penal Code.
The right to bodily privacy was addressed by the Supreme Court in STATE OF MAHARASHTRA V. MADHUKAR NARAYAN MARDIKAR AIR 1965 A prostitute is permitted to decline sexual activity, according to established law. All stranger rapes are considered crimes, and all women—aside from wives—are granted the right to privacy over their bodies, which includes the option to deny consent and sexual activity. The challenge is that matrimony has come to be revered as sacrosanct. Instead of having the wife worship her husband for all of his needs, especially sexual ones, there should be reciprocal respect and trust. Being the victim of rape by a friend or family member is much more distressing than simply having to live with him.
REASONS WHY MARITAL RAPE IS NOT A CRIME IN INDIA
A rigidly patriarchal society where marriage is the foundation of society and where women’s voices are suppressed. Dipak Misra, a former Chief Justice of India, argued that marital rape shouldn’t be considered a crime since it would lead to complete anarchy in families. Our nation survives because to the family platform, which supports family values. Matrimonial rape cannot be made a crime due to social customs and attitudes that foster such an atmosphere. The Indian government claimed that people who wanted to prevent husbands from raping their wives were mindlessly imitating the Western nations. Our society is profoundly ingrained with the notion that after marriage, a woman gives her husband her unrestricted consent to sexual relations. According to Matthew Hale of England, a husband cannot be held responsible for raping his legitimate wife since by their mutual consent and marriage contract, the wife has given herself in this way to her husband and cannot take it back. The union government claimed in an affidavit submitted to the Delhi High Court that a law criminalizing marital rape could turn into a simple tool for harassing the husbands, making the absurd argument that if all sexual acts between a husband and his own wife qualify to be marital rape, then the decision as to whether they are or are not will solely rest with the wife. This claim that wives will falsely accuse their own husbands has been made numerous times, and even if it were to happen, the judiciary would be able to assist. The only appropriate defense or justification is that marital rape is an evil deed and a brutally oppressive one. The Indian Constitution guarantees equality; nevertheless, the marital rape statute discriminates against women who are being violated by their own husbands, which is unlawful.
FACTS ON MARITAL RAPE
One in every three women in India, between ages of 15 and 49, stated that they had experienced some form of violence from their spouses , as per the latest NHFS(national family health survey) data Nearly 80 percent of women reported their current husband as perpetrators and 9 percent reported their former husbands as perpetrators. The situation is same with the live in relationship also as live in relations are legally acceptable and live in partners can claim maintenance under section 125 of CRPC and they are treated as husband and wife
Where a women is becoming independent law gave her the right to choose everything still she faces a lot of hurdles in society when a live-in partner can also rape her today the scenario has changed, law has evolved sex without the consent of partner in case of live-in relationships should also be considered as rape. RAPE IS RAPE and there should be change in the 162-year-old law It triggers discrimination against women based on their marital status. It is also violative of Article 19 (1)(A) as it violates the guarantee given by Indian constitution concerning freedom of expression, amongst others, to married women who are citizens of this country. Taking away the exception is a threat to the institution of marriage because yes, that’s what marriage is supposed to be, a legal sanction for a man to rape his wife? Its difficult to ascertain consent when people are living together, so it can then be misused by a woman to claim rape by her husband. Because yes there is no other way to build some safeguards to prevent genuine misuse, and because so many women are just going to want to blow up marriages by making false claims of rape
CONCLUSION
Since women are still seen as the husband’s property and are entirely at his disposal, it is obvious that Indian law has failed to adequately protect them. Establishing equality for married women requires addressing the issue of marital rape. We have examined the arguments’ viability in light of the ideas of family, marriage, and the place of women in society. We also shown that there is no legal basis for any of the arguments made in favor of making marital rape a crime. Marital rape is now an acknowledged crime in a number of countries around the world, breaking with the long-standing custom. Even Nepal’s Supreme Court has declared that forced sexual activity during a marriage qualifies as marital rape. Rather looking for solving a social issue in a legal manner, we should focus on changing the ideology of the society. There should be change in patriarchal norms men should consider women with dignity and not a sex slaves and most importantly by emphasizing behavioral change among men that NO MEANS NO
REFERENCE
Prof. S.N Misra, The Indian Penal Code, Central Law Publications,20th edition, reprint 2017
Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016
https://www.ijlmh.com/paper/analysis-of-the-international-scenario-with-reference-to-marital-rape/
https://www.ojp.gov/ncjrs/virtual-library/abstracts/marital-rape-new-research-and-directions
https://journals.sagepub.com/doi/full/10.1177/26318318221083709
https://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Issues/Marital_Rape.pdf
http://www.hiddenhurt.co.uk/marital_rape.html
0 Comments