Author : Srabana Dutta , Student , Amity University , Kolkata
I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist – Philippa Gregory.
Introduction:
Since times immemorial women have been subjected to various forms of crimes. The most popular among them is the domestic violence. Among various ways of domestic violence, marital rape is one such. It is unspoken in the society mainly in the fear of people judging the victim or the accused. For several years women were under the impression that sexual intercourse with their spouses does not need any consent and that a marriage between two individuals make sexual intercourse a necessary component which can be done as and when one wishes to. The word ‘consent’ lacks value after individuals get married to each other. Women are of the view that a husband can’t rape their wives, because any such thing after a marriage makes it legal and also normal in society.
Rape is defined by law in Section 375 of the Indian Penal Code as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age." But marital rape is when one’s husband without the consent, will with force coerce the wife of their wedlock to engage in sexual intercourse.
LAWS RELATED TO MARITAL RAPE IN INDIA:
Sadly, India has no laws neither to protect victims of marital rape nor punish the perpetrator. But exception 2 of Section 375 of Indian Penal Code, 1860 makes sexual intercourse with a wife below 15 years of her age makes it illegal, whether done with or without her consent. By this one can assume that protection against marital rape is given to wives below the age of 15. But after fifteen years of age of the wife, one is not given any protection against the same in wedlock. This violates Article 14 of the Indian Constitution and it comes as an discrimination against married woman.
ARTICLE 14 OF INDIAN CONSTITUTION:
Equality before law: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” In this regard one can assume that the married women being Indian citizen has all rights to live a life without being discriminated. The protection if given only up to the age of 15 to married woman, it comes as a discrimination against women above this age.
When IPC came into existence the Indian society was in a space where women were not considered as equal to that of men. The marriages in those times were more to fulfil the sexual urges of the men in the society. Men considered their wives as their chattels. Every night came as a challenge in the lives of such women.
ARTICLE 21 OF THE INDIAN CONSTITUTION:
Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Here Exception 2 comes as a violation of Article 21 as it does not provide the married women to live a life with personal liberty. It emphasises on the word “personal liberty” which means that one must give gravity to one’s consent in any action. Article 21 gives protection to one’s health, privacy, dignity, safe living conditions, and safe environment, among others. This provision makes it clear that all the citizens whether married or unmarried, below 15 years of age or above has the right to live with full dignity. Contrary of which will act as a violation to Article 21.
In the case of State Of Maharashtra And Another vs Madhukar Narayan Mardikar ( 23 October, 1990), the apex court held that every woman has the right to her sexual privacy. It was also stated that it is not open for any person and person to violate her privacy as and whenever wished.
In the State of Maharashtra v Madhkar Naraya case of 1991, the Supreme Court held that every woman has the right to privacy, which must be free of violations.
In Independent Thought v Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, is rape regardless of her marital status.
In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018 Shashi Tharoor, Member of Parliament in the Lok Sabha said, “Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”
On the contrary in another case of State v Vikash case of 2014, a Special Fast track Court in Delhi said, “the prosecutrix [petitioner] and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.”
CONCLUSION:
As society is dynamic, it keeps on changing. Hence the laws of the society should also change with time, keeping in mind the welfare and development of the people. There are certain challenges that the law makers will face, if marital rape is criminalized. These challenges are-
How would a victim prove the perpetrator as guilty?
Will the punishment be same as the punishments which are given to the rape accusers?
How would society react to criminalization of marital rape?
Nevertheless, it cannot be ignored that marital rape has various negative consequences such as, normalizing rape if one is married to her, the mental and physical state of the women. Marital rape should be criminalized for the betterment of the status of women. The country which glorifies goddesses should learn to accept that women can and should live a life of her choice and with dignity.
BIBLIOGRAPHY:
1. https://www.asianmedia.org/acj/marital-rape-in-india/
2. https://indiankanoon.org/doc/367586/
3. https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
4. https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
5. http://www.legalservicesindia.com/article/2500/Does-Section-375-of-IPC-Include-Marital-Rape.html
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