MARITAL RAPE- LEGAL CONCERNS

Author-Romika Narotra, Amity University, Noida

Introduction

The divine value of marriage is frequently utilised to cover up the horrifying reality:     marital rape. Although marital rape is a serious violation of bodily autonomy and dignity, it is still a legal grey area in India.

Marital Rape is having sexual intercourse with a spouse without his/her consent. In India, the law does not clearly define marital rape as a crime. An exception to Section 375 of the Indian Penal Code (IPC) states that sexual intercourse between a man and his wife who is under 18 years of age is not rape. This law allows perpetrators of marital rape to go unpunished and separates victims from justice

For centuries the institution of marriage in all the laws be it Hindu law, Muslim law etc, sexual intercourse after marriage has been seen as necessary and important for creation of family. Our society has developed a lot from many years but the image of importance of having a child after marriage and a husband showing all sexual rights over his wife has been so much normalised that even if a women is being forced to copulate after marriage has not been protected specifically under any law except the domestic violence act and under sec 375 IPC where forced sex after marriage is seen as a crime only when the women is below the age of 15 still in this 21st century India there is no law that fully criminalizes marital rape.

Background / Evolution

In ancient times, women were not considered separate legal entities and it was believed that if a woman married a man, he would accept this marriage. In the 19th century, feminists began challenging men’s right to force their wives to have sex. Feminists have been campaigning against marital violence since the 1960s. In the United States, the state of Michigan criminalizes adultery only when a couple files for divorce and separation. South Dakota banned same-sex marriage from 1975 to 1977. These instances were the start that showed people’s awareness towards marital rape.

History of Marital Rape in India

The Delhi High Court has been hearing arguments in the case since 2015. In January 2022, two judges of the Delhi High Court started hearing the case. Inevitable demands from individuals and public organizations. By May 2022, they had reached a controversial decision. While one judge upheld marital rape because it violated a woman’s right to consent, another objected, saying marriage “essentially” amounts to consent . Later, the issue was brought to the Supreme Court.

The need to evacuate the marital rape exception was prior rejected by the Law Commission of India in 2000 . In 2012, the Justice JS Verma Committee was entrusted with proposing revisions to India’s rape laws. Whereas a few of its suggestions made a difference shape the Criminal Law (Alteration) Act passed in 2013, a few proposals, counting that on marital rape, were not acted on. The issue has been brought up in Parliament as well. Upon being addressed in a Parliament session in 2015, the thought of criminalizing marital rape was rejected with the see that “marital rape cannot be applied within the nation since marriage was treated as a holy observance or sacrosanct within the Indian society”. In September 2022, Supreme Court administering on women’s right to secure premature births notwithstanding of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape ought to incorporate marital rape.

Government’s Stand:

The Central Government at first protected the rape exception and afterward changed its stand and told the court that it was checking on the law, on which wider consultations are required on the issue.

The Delhi government contended in support of holding the marital rape exception. The government’s contentions crossed from securing men from possible abuse of the law by wives, to protecting the institution of marriage

Legal provisions/ Challenges

The lack of legal protection against marital rape perpetuates a culture of impunity and silence. Victims often suffer physical and psychological damage due to silence, fear of stigma, family discrimination and legalization. Marital status and expectations of obedience make victims even more vulnerable, hindering their ability to seek help or report abuse.

One of the biggest problems with the criminalization of marital violence in India lies in the basic principles of relationship and marital behaviour between men and women. Old ideas often  believing that women are the property of their husbands and are not free over their own bodies and choices. This patriarchal ideology normalises marital rape and prevented the development of law.

In expansion, legitimate issues such as burden of confirmation and need of prove make genuine issues in prosecuting marital rape. The security of the marriage ceremony and the absence of witnesses make it difficult to recognize non-consensual sexual intercourse. Also, victims are hesitant to come forward due to fear of striking back or social backfire, making the lawful handle difficult.

Criminalising marital rape is critical for the advancement of the rights and dignity of people in marriage. Usually an issue of gender equality, bodily autonomy and human rights. It gives a legitimate prepare for casualties to look for equity, get to support administrations and hold culprits accountable for their actions.

Furthermore, criminalising marital rape is additionally in line with India’s universal commitments and commitments beneath various conventions and agreements, including the Tradition on the Disposal of All Forms of Discrimination against Women (CEDAW). India’s disappointment to criminalize marital rape has weakened its validity within the world and failed to convey on its commitment to combat gender-based violence.

Case law

In case of The Chairman, Railway Board v. Chandrima Das . The Supreme Court held that rape is not only an offense under the Indian Penal Code but also a crime that affects the entire society.

Another case of Kharak Singh v. State of U.P  has adopted the implied protection of the right to privacy under Article 21. According to Article 21, the right to privacy includes the right to be free from intrusion and unreasonable access. Sexual freedom is an important part of this law and not all sexual intercourse is allowed to violate sexual privacy. The idea of ​​avoiding marriage through rape violates a woman’s right to sexual privacy by forcing sexual intercourse against her will.

In Independent Though v. Union of India , Delhi High Court in 1986 said that exemption of marital rape under Section 375 of the Indian Penal Code was unconstitutional. The document addresses the need to criminalize marital rape and provide legal protection to women within marriage.

Another important case was Sakshi v. Union of India. In 1999, the Supreme Court of India upheld forced sexual intercourse by the husband. The court said that marriage does not necessarily imply consent to sexual intercourse and that women have the right to refuse sexual intercourse in marriage.

Why Marital Rape is not criminalised in India?

The new law, which will be published in July, does not criminalize marriage. The government said marital rape can lead to marital discord and become a tool to harm husbands. Exceptions to marriage are generally based on two views: Permanent consent, that is, when a woman gets married, she gives permanent consent and cannot withdraw it. Legislators reiterated that it is a woman’s responsibility to have sexual intercourse with her husband and that the institution of marriage essentially waives a woman’s right to consent. Consent is defined under the Crimes Act 2003 as “a person giving consent if he or she chooses to do so and is free and competent to make that choice.” Courts have made clear that consent is voluntary and does not require evidence of objection.

Conclusion:

As a result, legal recognition and criminalization of marital rape is important for solving the problem of gender-based violence in marriage. This should be achieved through a variety of means, including legal reform, public awareness and support for victims. Legislators, legislators, NGOs and communities must work together to create a society where all human rights and freedoms are respected and protected, regardless of care. Now is the time to make fair and equal decisions for everyone.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. IPC Bare Act
    2. Criminal Manuel
  2. Online Articles / Sources Referred
    1. Garg, S. and Singh, N. (2022) Marital rape: Historical and comparative analysis, My Lawman Socio Legal Review. Available at: https://mslr.pubpub.org/pub/vlo7anq8/release/1 (Accessed: 06 March 2024).
    2. Institute for the Sociology of Law A critical analysis of the standard of consent in rape law in India: Oñati Socio-Legal Series, A critical analysis of the standard of consent in rape law in India | Oñati https://opo.iisj.net/index.php/osls/article/view/1647/1992 (Accessed: 06 March 2024).
    3. Sachdev, V. (2022) Explained: Why marital rape is not a crime in India (yet),The Quint. https://www.thequint.com/news/law/marital-rape-not-recognised-as-crime-in-india-explainer (Accessed: 06 March 2024).
  3. Cases Referred
    1. The Chairman, Railway Board v. Chandrima Das
    2. Kharak Singh v. State of U.P.
    3. Independent Though v. Union of India
    4. Sakshi v. Union of India

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