Demystifying marital rape in India

admin1 — Fri, 05 Nov 2021 14:43:36 +0000

Marriage rape is so common in Indian society that it can be seen in any neighbourhood. Some complain about it, some do not. It is the act within marriage where one’s own spouse has sexual intercourse with another without her consent or forcefully. Here the main element which matters is that there should be no consent and physical violence here becomes immaterial. Now also more than two-third of married Indian women, aged 15 to 49, have been coerced to engage in sexual intercourse over the span of their marriage. As Indian society is a patriarchal society so males are more dominating on women which makes them weak and they have to stay after all the ill-treatment they face. If we see historically, sexual intercourse was supposed to be the right of the husband, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized. The issue of domestic violence and ill-treatment of women in marriage have taken attention internationally between half of the 20th century. The present study seeks to examine the Indian law perspective on marital rape and how it violates the rights of women. Further, it will be talking about some case laws that talk about the concept of marital rape and how it is proved to be a stigma on Indian society.

INDIAN LAW

The definition of rape is codified in Section 375 of the Indian Penal Code (IPC) mentions all forms of sexual assault involving non-consensual intercourse with a woman, states as an exception that “sexual intercourse between a man under the age of 15 and his own wife is not rape.”Marital rape is not a crime in India. Marital rape enactment in India relies on the understanding of the courts. According to section 376 of the IPC Punishing Rape, the rapist is either, sentenced for 7 years or more, or a sentence of up to 10 years, or if the, unless the lady raped, is his own particular spouse, and is not under 12 years old. This exception has its roots in the ‘Doctrine of Coverture’ which means non-independent legal status for women in the society and this is because of the male dominating society. As per the present law women and men are assumed to have implied consent when they agree to tie in a relationship and their unwillingness is not given importance then.

MARITAL RAPE VIOLATES WOMEN RIGHTS

ARTICLE 14: “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws”. Martial rape violates the fundamental rights of women which is enshrined and guaranteed by the constitution which is equality before the law. Exception 2 discriminates the married women to seek justice and gives them equal protection from rape and sexual harassment.
ARTICLE 21: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. Marital rape is violative of Article 21 as the women are not protected from forced sexual acts which damage their mental and physical health, as well as their right to live with dignity, is harmed.
SECTION 375 OF I.P.C: The main purpose of this section was to punish those who dare to do such heinous crimes and protect women in society. But the exception 2 is far away from its objective because it gives the immunity to have forceful sexual intercourse with their wife who is about 18 years.

CASE LAWS

State of Karnataka v. krishnappa[1], In this case, it was held that sexual violence apart from being a dehumanizing act is violative of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour & offends her self-esteem & dignity it degrades and humiliates the victims.
Independent Thought v. Union of India [2], In this case, the age mentioned in exception 2 of section 375 of IPC was raised to 18 years from 15 years. This means that any husband having a forceful sexual course with her wife below 18 years would consider as rape.
Suchita Srivastava v. Chandigarh Administration [3], the Supreme Court, in this case, concluded that the woman has the right to make a choice to have sexual intercourse it is her right to personal liberty, privacy, dignity, and integrity under Article 21 of the Indian constitution.
Kharak Singh v. the State of U.P[4], the Supreme Court ruled that, in principle, the right to privacy within the scope of Article 21 is guaranteed. The right to privacy under Article 21 includes the right to sit undisturbed and uninterrupted. Intense sex of any kind undermines the right to protection and sexual safety. The doctrine of exclusion of marriage in the event of rape has been shown to undermine the right of protection of married women by unintentionally driving her into sexual relations.
State of Maharashtra vs. Madhukar Narayan Mandikar [5], In this case, the Supreme Court considered the aspects of security over one’s own body. The tragedy here is that while the court has driven her spouse in favour and has not yet protected her own body, a woman exposed to rape by a stranger is perfectly fine, but the couple’s rape.

CONCLUSION

The Indian Constitution has provided the fundamental rights which also include one of the essential rights i.e the right to equality and it is given in the right that there shall be no discrimination on the basis of caste, colour, gender, etc. Now men and women both are treated as separate legal identities. And many laws are now formulated to protect women from what all they have gone through in the past decades. Even though it is held in various case laws that a woman has the right to make a choice to have sexual intercourse it is her right to personal liberty, privacy, dignity, and integrity under Article 21 of the Indian constitution. But there is a need to reconsider and bring marital rape within the ambit of rape laws by eliminating section 375(Exception 2) of IPC. Marital rape is not completely criminalized in India. It is wrong and deserves government attention. Women raped by their spouses often endure long-term physical and enthusiastic problems. In this particular case, marital rape is even more horrific for women. Because she has to be with the abuser on a daily basis. Since the consequences of spousal rape are indeed high, there is clearly a strong call to criminalize the crime of spousal rape. There are many loopholes in the Women’s Protection Act from Domestic Violence because the law does not explicitly address spousal rape. This clearly demonstrates a shift in the state’s mindset that previously relied on non-interference in the family circle. Therefore, there should be legislation for the women who are suffering at the hands of their abusive marriage and become the prey of marital rape.

– Nancy Shonak

(Legal Intern, LawDIKTAT)

REFERENCES

[1] 2000 CriLJ 1793, JT 2000 (3) SC 516, 2000 (2) SCALE 610, (2000) 4 SCC 75, 2000 2 SCR 761, 2000 (2) UJ 919 SC, Available at- https://indiankanoon.org/doc/635584/

[2] Available at- https://indiankanoon.org/doc/87705010/

[3] Available at – https://indiankanoon.org/doc/1500783/

[4] 1963 AIR 295 SCR(1) 332, Available at – https://indiankanoon.org/doc/619152/