In contemporary times when we are normalising on taking a No for an answer, we need to strongly say Yes to criminalising Marital Rape in India.
Marital rape or spousal rape is an act in which one spouse tries to or indulges in having sexual intercourse with their partner without the consent of the latter. Thus, it is easy to say that marital rape is a violation of basic human rights of dignity and choice and should be punishable under law. However, sadly to say, such a heinous crime is still not criminalised in India. Conversely, exception 2 in the Indian Penal Code OF India fairly legalises this act.
More than 100 countries have criminalised Marital Rape while India remains one of the 36 countries that have still not taken their stance on such a pressing issue. Living in the 21st century, it is a pity that we have to fight for illegalising an act that is tangibly immoral and repressive. According to the data collected from the National Family Health Survey in 2015-16, 99.1 per cent of sexual violence cases go unreported and that it is very likely for the mean Indian woman to face sexual violence from her husband 17 times more than someone else.
Also, in a study by the UN Population Fund, more than two-thirds of married women in India,(ages 15-49) have been beaten, raped, or forced to get them indulged in non-consensual sex. As it is already hard for the victims of rapes to speak about this, having no law protection makes it more difficult for married women to come out. In a survey conducted by International Centre for Research on Women (2011) nearly 20% of Indian men have, reportedly, at least once carried out sexual violence against a female partner.
In Indian law, there is no legal definition for marital rape. However, under section 375 of the Indian Penal Code(IPC), rape is accepted as a criminal offence and states that if any man had sexual intercourse with a woman without her consent, he would be charged with rape. But under Exception 2 to Section 375 “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”. Thousands of writ petitions have been sent to the Supreme Court and various High Courts of India that have challenged the constitutionality of the formerly mentioned exception. Meanwhile, the Supreme Court of India gave a landmark judgement by holding that it will be considered rape if a man has sexual intercourse with his wife between the ages of 15 and 18 years. The IPCs were drafted during the 1860s and it is safe to say that the current IPCs are outdated and widely gender partial as they are of the times when women were regarded as the property of their father and in turn husbands. The inclusivity of Exception 2 still in the section is giving the image that there is no individual identity of a wife. This patriarchal view should be removed not only from this but all other sections of our constitution. The only way for a woman to file a case against her husband for non-consensual sex is under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.
It is mentioned in Article 14 of the Indian Constitution that “[t]heState shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”Therefore, under Article 14, it is the right of every Indian woman to be treated equally and an individual’s human rights shall and must not be violated by anyone and this implies to their spouses too. It is silly how a married woman’s right to control her own body is counted as different from that of an unmarried woman in our country. The status of marriage should not discriminate among women and their rights. Exception 2 is also a breach of Article 21 which states that “[n]o person shall be denied of his life and personal liberty except according to the procedure established by law.” Yet the very existence of Exception 2, fails to punish husbands from engaging in acts of forced sex with their wives. This negatively affects the physical and mental well being of women. In favour of this article, the Supreme Court upheld that sexual violence apart from being a demeaning act is an unlawful obtrusion of the right to privacy and sanctity of a female in the case of the State of Karnataka v. Krishnappa. But they chose not to give their view regarding Exception 2 in section 375 altogether.
A few years back, in the Chhattisgarh High Court, Justice NK Chandravanshi gave a shocking ruling that sex or any sexual act performed by a husband is not rape, even if it is done by force and against the wife’s wishes. However, the Kerala High Court gave a contrary opinion and observed marital rape. There has been a difference in the opinion of the judges in the courts throughout the country.
In 2013, A UN committee advised the Indian government to criminalise marital rape. The JS Verma committee set up in the aftermath of the Nirbhaya protests also reiterated the same. There have been many committees, many reports, but the provisions remains the same. So far, no government in India has shown any interest in safeguarding the rights of married women. In 2016, the government altogether shifted the direction of the issue by stating that the concept of marital rape was an international one and cannot be applied in the Indian context due to factors of poverty, illiteracy, social customs, religious beliefs and the 'sanctimony of marriage'. This is a complete infringement of the law of human dignity and equality.
Marriage in modern times is a combination of equals. It is an association of two individuals, each of whom has a separate identity, integrity and dignity. The violation of the bodily integrity of a woman is a clear violation of her rights under Article 21. India needs to understand the gravity of the issue and should accept the observations of ECHR and criminalise marital rape in India. There is also a need for a change in the attitude of the prosecutors, police officers and society in general towards marital rape. The necessity of the moment is a common code of law for marriage and divorce. We need to see these commodities under secular law with impartial jurisdiction.
Sources:
About the Author:
Pratishtha Singh Gaur loves voicing her opinion about gender disparity and social taboos. She is always open to conversations regarding songs, books, movies, and cats. In social gatherings, her role is mostly keeping the mood light.
💕💕