MARITAL RAPE

This article has been written by Pragya Srivastava, a student of Banasthali Vidyapith. 

The existence of society is very old and complex in nature. This complexity is created by the complicated behaviour of human beings. It is through human behaviour where one interacts in the society and that is how a relationship is formed. The relationship varies in nature, but here the emphasis would be on the conjugal relationship of the wedded couple. The mythology behind the institution of marriage is where the father of the bride would entrust his daughter into the hands of the bridegroom who is noble and physically fit. The institution of marriage is a sacrament somehow in all the religions practised all over India. The reason behind the marriage is to procreate children and this logic becomes the instrument to harm the dignity of women nowadays. This harmful indecent act amounts to marital rape. Marital rape is sexual intercourse with his own wife without her consent. The ancient thoughts of ancestors signify that the husband is superior to his wife and where the wife is bound to work in accordance to his orders. Marital rape is in controversy nowadays with the development and progress in human thoughts and behaviour.

In accordance to the legal system Section, 375 has an exception “sexual intercourse or sexual acts by a man with his own, the wife not being under fifteen years of age, is not rape”. The fact is rape whether committed by an unknown or by a husband, difference interpreted here is rape by unknown or without the license of marriage is an offence as the element of Consent is missing the victim is forced but a rape committed by the license is not the commission of the offence because as the girl gives assent to the marriage that becomes the consent to commit any activity throughout the lifetime of marriage. With the progress in society the legal aspect for marital rape should be changed. This exception fails to victimise the woman suffering from such an act. The union between spouses is a bond of love, understanding, trust, care which needs proper approval from both; it cannot be measured with the thirst of lust. It’s difficult to understand as to how in the 21^st century a woman could be a property of a man. It could be analysed that the makers of Section 375 created the offence of marital rape as an exception with the view that it would be misused and effect the conjugal relation of a couple but they did not have an inclination that it would become a serious crime with the passage of time.

It is still far away to criminalise the offence of marital rape. Modi government shows its concern towards this head of IPC which depicts that why it is hard for people to understand that a brutal rape by a husband is not less than the issue of triple talaq. How can a  conjugal relation be effected if there would be no wedlock between the spouses?  If so then saying marriage a sacrament would be of no use because the relation might ruin as the base of the marriage is the wedlock which shows that this element is so important which would decide the future of a relation. In a patriarchal society, the facts of marital rape are judged with the eyes that a man is always reasonable and the owner of its property which is denoted for his wife and his wife is a machine to reproduce children. This shows the contaminated thinking of those husbands for which a girl leaves the blanket of protection, dignity of her parents with a view that she would be safe with his dream man. It is not just the act but the thinking of a husband makes him marital rapist where there has to be respected for her own wife and not to rule her as the dictator where she is bound to obey his orders without her will.

Certain cases like Nimeshbhai Bharatbhai Desai vs. State (2017)[1] this case dealt with the issue of marital rape but it was held by the  Gujarat High court that the husband cannot be punished for raping his wife because the law does not recognise the marital rape he could be made liable for outraging her modesty or for unnatural sex.

Independent thought vs. Union of India and another (2017)[2] this case dealt with the fact that that sexual intercourse with a minor wife age between 15 to 18 years is rape but again the no criminalization for an offence committed to a wife above 18 years which comes into the account of marital rape.

Marital rape violates Article 14 of the constitution which states right to equality, the supreme law of the land states that no person would be denied equal protection of law but the criminal law deny their protection coverage over the victims who are raped by their own husband. In the case of Budhan Chowdhary vs. State of Bihar[3] and State of West Bengal vs. Anwar Ali Sarkar[4] Supreme court held that the classification made under  Article 14 is subject to reasonable test. The exception 2 of penal code does not draw rational nexus of classification so it does not fulfil the requirements of the reasonable test and thus violate article 14 of the Constitution.

It also violates Article 21 of the constitution which is the backbone of the constitution states that no one shall be denied of his life and personal liberty except the procedure established by law. The court in recent years has started acknowledging that a woman has the right to abstain itself from sexual intercourse or any kind of sexual activity. It also violates her right to sexual privacy in a matrimonial relationship.

The Domestic violence Act, 2005 provides remedies to the victims of marital rape where it is termed as domestic violence against women or cruelty by husband against her wife but not as RAPE.

CONCLUSION

People need to understand that woman is not a property for anyone she is not the object to show the manhood but to get it into the head that it’s her body and her choice which needs to be respected. Further, the judiciary should take some initiative to remove this discrimination faced by the married woman by sacrificing her dignity.

[1] R/CR.MA/26957/ 2017

[2] (2017)10 SCC 800

[3] AIR(1995) SC 191(INDIA)

[4] AIR(1952) SC 75(INDIA)