MARITAL RAPE: IMMEDIATE NEED OF CRIMINALIZATION

“Her friends used to tell her it wasn’t rape if the man was your husband. She didn’t say anything, but inside she seethed; she wanted to take a knife to their faces.” – F. H. Batacan

Rape is an illegitimate sex without the consent of a person because of physical drive or dangers, or due to perfidious demonstration of perpetuator. Rape is not only sadism against women but rather an exigent transgression of a person’s fundamental ideal to life and solitary freedom. In India, Rape by an intruder is a penal offense under section 375 and 376 of IPC. Dreadfully, it indubitable abstrain marital rape from purview of conviction. Marital rape is sex by consort with his trouble and strife without her assent or by impel or peril.It is not right to trust that sex with missus is husband’s prerogative given to him by marriage. It has been observed that, marital rape is more distressing with perennial results: physical and mental. Eventually marital defiance to spouse has been pulled back in a few nations. By decriminalizing spouse rape, our state is declining in its responsibility to guarantee sex equity that includes protection from wrong doing and shove.

Today most nations have either established marital rape laws, revoked marital rape special cases or have laws that recognize marital rape and ordinary rape. This reveals marital rape is presently regarded as a violation of human rights. In 2006, it was gauged that marital rape is an offense spurned under the criminal law in not less than 100 nations and India is not one of them. Despite the fact that there have been a lot of enactments in India as to barbarity against women in her own particular house, alike the laws against female child murder and barbaric behaviour at home, marital rape has been derelict to pick up recognition as a misconduct according to strategy producers. Marital rape, in India, has sneaked behind the sanctified drapes of marriage.

Marital Rape and Laws In India

Marital rape is not an offense in India. Law in respect to marital rape in India are either figmental or rarefied and dependant on the understanding by Courts. Section 375 of the Indian Penal Code (IPC) that deals with rape mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife should not be less than 15 years of age, is not rape.” [1]According to section 376 of IPC, which provides punishment for rape, the rapist ought to be snubbed with imprisonment for a term which might not be below 7 years but rather which may stretch out to life or for a term up to 10 years and should furthermore be at risk to fine unless the women raped is his own particular helpmate, and is not under 12 years old, in which case, he might be punished with imprisonment for a term which may extend upto 2 years with fine or with both.[2]

Hence marital rape is seen as a rape provided the spouse is under 15 years old, and the severity of punishment is leninent. There is no lawful protection concur to the spouse after the age of 15, which is against human rights directions. A kindered law that states the lawful period for marriage to be 18, protects from sexual abuse just to those who are up to the age of 15.

Conforming to the Indian Penal Code, the cases wherein the spouse are often criminally charged for an offense of marital rape are as under:

Rape of a judicially isolated spouse, offense culpable with confinment upto 2 years and fine;

Rape of married women who is above the age of 15 years in is not punishable in India

In 2005, the Protection of Women from Domestic Violence Act, 2005 [3]was passed which contemplates marital rape as a type of local violence. Under the provisions of this Act, a woman can approach the court and get legal separation from her husband for marital rape. Marital rape not only affects the women’s body but harms her affection and trust in such a way that it dreads her soul. Her human rights are renounced at the name of marriage. However the laws to protect the interests of the casualties of marital rape are missing and inadequate, and the steps taken are obnoxious.

It is backasswards that a lady can ensure her entitlement to life and freedom, however not of her body inside her marriage. The meaning of rape (section 375 of IPC) should be certainly changed. The only resort available for ladies is section 498-A of the IPC, managing pitiless, to ensure themselves against “unreasonable sexual direct by the spouse”. Is unreasonable interest for sex irrational? Isn’t assent a prerequisite? Is marriage a licence to rape? There is no answer, on the grounds that the judiciary and the legislatures are silent.

Right To Live With Human Dignity

The Supreme Court has held in several cases that the offense of rape violates the right to life and the right to live with human dignity. The Supreme Court has observed that rape is not solely an offence under the Indian Penal Code, but is a crime against the society as whole. In Bodhisattwa Gautam v. Subhra Chakraborty [4]court held that rape is meagrely a sexual offense than a demonstration of antagonism gone for corrupting and chagring the ladies. In this manner, the marital rape is an exception principle that violates spouse’s entitlement to live with human dignity. Any law which mutilates ladies’ entitlement to live with dignity and gives spouse appropriate to drive wife to have sexual intersourse without her consent is along these lines unlawful.

Right To Sexual Privacy

Right to privacy is nowhere specified in the Indian Constitution. Although, in cases like  Kharak Singh v. State of U.P.[5] ; Govind v. State of Madhya Pradesh[6], ; Neera Mathur v. LIC [7]etc, the Supreme Court has recognized that right to privacy is ensured under extent of Article 21. The Right of Privacy under Article 21 gives a right to be allowed to sit unbothered and not exacerbated. Any form of intense sex damages the right of protection, sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded lady’s entitlement to protection by forcing her to go into a sexual relationship against her will.

In the case of State of Maharashtra v. Madhukar Narayan [8]the Supreme Court has held that every female is empowered to her sexual privacy and it is not open to for any and every person to infringe her privacy as and whenever he desired. In the landmark case of Vishakha v. State of Rajasthan[9] the Supreme Court extended this right to privacy in working places also. Further, along a similar line we can interpret that there exists a right of privacy to go into a sexual relationship even inside a marriage. Consequently by not criminalizing rape inside a marriage, it damages the right of privacy of a wedded lady and is consequently illegal.

Right To Bodily Self- Determination

The privilege to substantial self-assurance can likewise go under the scope of Article 21 despite the fact that the Constitution does not expressly remember it, such a thing exists in the huge system of the right to life and personal liberty. The idea of right of self-assurance relies on the conviction that a human being is a definitive chief in matters intently connected with her/his body or prosperity and the more personal the decision, the more strong is the privilege of the person. The desire be the main creators of his own destiny which decides his reality. Sexual relationship is a standout amongst the most individual decision that a women holds for herself. Decisions known with sex is a type of self expression and self-assurance. On the off chance that the law tries to carry away the privilege of communicating and repudiating such assent certainly denies a women of her protected right of real self-assurance. In this way, It is presented that the marital rape exclusion principle successfully opposes a wedded women her entitlement to substantial to self-assurance and meddles in her most individual decision making.

Judicial Stand

The Supreme Court, in State of Maharashtra vs. Madhukar Narayan Mandikar has mentioned that one side of security over one’s body. What is tragic here is to see how court has advantageously put spouse out and has yet not given her protection over her own body while women who have been subjected to rape by intruder is criminalized and not marital rape. For this example, it was chosen that a prostitute has the right to deny sex on the off chance that she was unwilling.

In Sree Kumar vs. Pearly Karun[10], the Kerala High Court observed that the offense of rape under Section 376A, IPC will not be in force because the spouse was not living independently from her husband under any declaration of  partition or under any custom or use, irrespective of the fact that she is liable to sex with her husband without wanting to and without her assent. For this example, the spouse was forced to sex without her will by her husband when she went to live with her husband for only 2 days as result of settlement separation procedures which was going on between the two parties . Subsequently the spouse was not held liable for raping his wife however he had done such act.

The judiciary seems to have totally consigned to its benefit rape within a marriage is impractical or that the disgrace of assault a women can be saved by getting her hitched to the attacker.

Conclusion

Marital rape is not completely interdicted in India. It is no doubt a bona-fide type of wrongdoing against women that deserves government’s immediate consideration. Women who are raped by their spouses are more inclined to numerous attacks and often bear physical and vigorous issues. In this particular circumstance, marital rape is significantly more dreadful for a women since she needs to remain with her offender regularly. There is a dire requirement for criminalization of the offense of marital rape at the earliest. In order to bring an attitudinal change in the women about marriage, certain additional steps are fundamental that are both lawful and socially acceptable. There always exist an ambiguity in Protection of Women from Domestic Violence Act, as the Act does not directly talk against marital rape. On the positive side, retribution of a particular enactment against abusive behaviour at home has opened the gates for an enactment criminalizing marital rape. This remarkably demonstrates change in mentality of state which prior put stock in non-intercession in family circle.

Our legislators need to understand that marriage should not be seen as a licence for the man to rape his wife.

Section 375 of the Indian Penal Code defines rape as “non-consensual sexual intercourse with a woman”. However, it exempts the husband from any legal consequences if he compels intercourse on his wife without her will, provided that his wife is above the age of 15 years. The 15 years age was written down to 18 years by the Supreme Court. Marriage in India under the law means binding implied consent.

The latest decision by the Chhattisgarh High Court, found atrocious by several people, although should not surprise. After all, the learned Chhattisgarh High Court judge NK Chandravanshi quoted solely from the law of the land when he cleared a man, suspected of raping his wife, giving the verdict that sexual intercourse by a man with his wife is not rape – irrespective whether it was force or against her wish.

Strangely, High Courts in India have often differed on the admissibility and definition of marital rape. Last month, the Kerala High Court held that marital rape, though not recognised in India, could still be considered as one of the ground for divorce as a form of cruelty. The Kerala High Court noted, “Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, and any disrespect or violation of bodily integrity is a violation of individual autonomy.”


[1] Refer to section 375,IPC

[2] Refer to section 376,IPC

[3] https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf

[4] Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1996 AIR 922, 1996 SCC (1) 490

[5] Kharak Singh vs The State Of U. P. & Others on 18 December,1963 AIR 1295, 1964 SCR (1) 332

[6] Govind vs State Of Madhya Pradesh & Anr on 18 March,1975 AIR 1378, 1975 SCR (3) 946

[7] Mrs. Neera Mathur vs Life Insurance Corporation Of … on 31 October,1992 AIR 392, 1991 SCR Supl. (2) 146

[8] State Of Maharashtra And Another vs Madhukar Narayan Mardikar on 23 October, 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC

[9] Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997

[10] Sreekumar And Anr. vs Pearly Karun on 22 June,1999 (2) ALT Cri 77, II (1999) DMC 174


Author: Sanskriti Srivastava


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