By
Aarsha Prem, III year of BBA.,LL.B, from Centre for legal studies Gitarattan International Business School, Rohini
Abstract
Marital rape is a significant dilemma of the Indian society. The lockdown of 2020, 2021 due to the Covid 19 pandemic has seen a rise in marital rape in the society. Sexual intercourse is pleasurable only till there is consent. Once the consent is removed, it is rape, no matter whether outside a marriage or in it.
Imperfect Marriage
Marriage ties two people together to be each other’s lovers, friends and a constant companion. It requires great trust, compatibility and compassion to be in a marriage.
However, the beauty and strength of marriage crumbles when the understanding between spouses breaks. One of the major flaws that has come about the married life is Marital rape.
What is a Marital Rape?
Rape as defined by section 375 of the Indian Penal Code is a criminal offense. A man commits rape if he has sexual intercourse with a woman against or without her consent, or if she is minor.
Marital rape is coitus between a couple without consent. The flaw in Indian law is that once a couple is married, they can perform sexual activities with each other anytime without a bar of consent. However, marital rape by husband in India has no legal consequences unless it is followed by physical abuse.
It is stated in exception 2 of section 375 of the Indian Penal Code 1860 that sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape.
Even though marital rape cannot be prosecuted as rape, it can be claimed to be sexual abuse under the law regarding domestic violence enacted in 2005, which states that maltreated wives or female live-in partners can claim civil remedies, in the likes of injunction against violence, dispossession from home or direction to the male partner to pay maintenance. The Protection of Women from Domestic Violence Act, 2005 in its definition of domestic violence includes sexual abuse which is defined as any sort of conduct of a sexual nature that violates the dignity of a woman.
The most wretched fact is that something like marital rape is not criminalised in India, and women can seek justice only in the form of civil relief or if they are physically assaulted. How wicked is that! India is one of the 36 countries where marital rape is not a crime along with countries like Oman, Pakistan, China, Egypt, Kuwait and Singapore to name a few.
Where did we go wrong so as to create such a big loophole in our Judicial system which feeds right into the misogynistic society while the aggrieved women are abandoned?
Why is marital rape an issue?
Marital rape has become a rising in India. 1 out of 3 Indian men admit to raping their wives, and 1 woman is raped by her husband every 3 seconds. So yes, it is a big issue. Increase in offences like this has been observed in the lockdown in the country due to Covid 19 too. Where the nation fights a pandemic, the nation’s daughter suffers in her own house.
In India the practice of arranged marriage is prevalent, and it is assumed ‘implied consent’ by the wife for coitus any time. India is still a strongly patriarchal society, so males are given the power whether it be in the workplace, family or a marriage, and women are still considered only pawns to be used by the man. The same situation binds women in the bedroom too.
Since marriage in India is a holy ceremony, there is pressure on the women by the society as well as her own family to serve her husband and not to expose the affairs of the affairs of the household to the public. This combined with the lack of empathy of law enforcement officers and government officials in marital rape forces the victim to suffer silently through the dreadful forced sexual encounters, damaged mental health and excruciatingly painful marriage.
How did the Marital Rape mushroom?
The blatant disregard for the suffering and pain of a woman combined with the unwarranted support to the practise of patriarch in society has fed fodder to the sin of marital rape. The very fact that marriage and rape are placed together sickens me, one is a promise to love and trust each other till the day of death, and the other is violating the other to derive pleasure.
The people who sew shut their mouths in the face of such atrocity are worse humans. This includes not just the family of the husband and wife but also the police officers who want register this issue and the government who want address them.
As for the arguments that say that criminalising marital rape would give a woman the right to harass their husband over a feud with this leverage, this might be true. It might be that 1 of 20 cases of marital rape is false, but for that 1 case you cannot block the justice to the 19 that are facing the brutality of marital rape. To weed out the false cases, there are courts who, through their thorough investigation and evidence, can ensure that malice is entertained, and no innocent victim is denied justice
The government and the courts have takral landmark judgements involving the the LGBT community, talaq and adultery, making massive strides in humankind. The issue of marital rape also has the critical gravity to be taken up in courts and criminalised.
The issue of marital rape is often skirted around off because of the much high placed value on marriages and family in India. But the point to be acknowledged is that even if these marriages were allowed to be continued, they would only end in pain and suffering of women, whose protection is the concern here, leading to addition in the already high rate of depression. Not only the wife but also the off-spring of such a a toxic marriage would not grow up to be assets of the nations and would be mentally disturbed as they grow up to be the future of the nation.
The Supreme Court itself agrees with the fact that criminalizing marital rape does not threaten marriages in any way.
In Independent Though v. Union of India, the Court accurately explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It further observed that if divorce and judicial separation have not destroyed the tradition of marriage, criminalizing marital rape certainly cannot either.
High Court of Gujarat in Nimeshbhai Bharatbhai Desai vs State of Gujarat ruled that the non-consensual act of marital rape violates the trust and confidence within a marriage and that marital rape is what has damaged the institution of marriage.
Moreover, if criminalising rape in marriage affects the family values in India, then be it, that is better than flooding the nation with the tears of our daughters.