Author – YAZHINI.S, Student at GOVERNMENT LAW COLLEGE, DHARMAPURI.
INTRODUCTION
In our Indian Society Love Marriage is a crime but Marital rape is not. Marriage is a sacred social institution in India. The most unique aspects of the relationship between husband and wife are legal sanctions attached to their sexual relationships. But now marriage has become a license to rape. Although many countries have already criminalised marital rape. India is one of 36 countries where it is not yet penalized. So, here in this article we talks about why marital rape is still not crminalised in India and about #Marital strike trending topic on twitter. We also discuss relevant case laws and remedies in this article.
DEFINES RAPE
Section 375 of IPC defines rape “ A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such a consent, by reason of unsoundness of mind or intoxication or administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when is under eighteen years of age.
EXCEPTION 2
Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape. The exception to marital rape is enshrined in our very constitution. Despite numerous petitions to remove Exception 2, no action has yet been taken on the same.
MARITAL RAPE
Marital Rape or Spousal Rape refers to non consensual sexual intercourse between the partners, wherein one dominates, pressurizes and threatens the other with force, fear or manipulation. It is an act of non consensual violence undertaken by a partner against his spouse. The lack of consent is the essential element and need not involve physical violence.
MARITAL RAPE IN INDIA
Marital rape is still not criminalised in India. In fact only about 50 countries have explicitly criminalised marital rape. In approximately 150 countries marital rape is either not explicity stated or the laws surrounding it are vague, thus oftentimes allowing women to press charges on their husbands under general rape laws in many of these countries. In only approximately 36 countries marital rape is not criminalised , India is one of them. Section 375 of Indian Penal Code is about rape against a women however, the second exception states that if sexual intercourse is between a man and his wife then it will not be considered as rape.
The fact that even in 2022 we are still debating whether marital rape should be considered as rape or not is disgusting one. There is a marriage strike trending on twitter, so many men online complaining because they feel that wife’s duty to have a sex with her husband whenever he feels. It talks about the patriarchal institution of marriage in our country. We are still a country that shuns a woman for wishing to come out of an abusive marriage.
#MARRIAGE STRIKE
As the Delhi High Court hears the plea on marital rape, #Marriage strike has seen more than 68 thousand tweets within 2-3 days. On Twitter, the debate has become a ‘feminist’ versus ‘save men’ issue. At present, a man having non consensual sex with his wife who is above 18 years of age, cannot be charged with any laws concerning rape. While many wholeheartedly support the current argument, several are against it. Men who are trending #Marriage Strike are saying they will not marry at all if more power is given to women in marriage. It is 2022 and India is still debating about criminalising marital rape!
CONSENT IS IMPORTANT
Marriage is not a license to rape, consent is everything.
● It is important to understand that your body belongs only to you.
● Without it, sexual activity is deemed as unwanted and a form of Sexual violence or harassment.
● It eliminates any entitlement that one partner might feel over the other.
● Asking for consent shows respect for boundaries between partners and is a requirement for a healthy relationship.
PROVISIONS INCLUDED
1. VIOLATION OF ARTICLE 14
Article 14 states equality before law and equal protection of laws does not give equal protection to all women. Exception 2 of section 375 does not punish the husband for rape but punishes the husband for the act of rape whose their wives are at the age of 15 or below. Thus law clearly discriminates between married women above the age of 15 and below the age of 15. Hence, Article 14 of the Constitution is violated.
2. VIOLATION OF ARTICLE 21:
● Right to live with human dignity – Supreme Court has rightly pointed out that rape of women violates Human dignity. In Bhodhisathwa Gautam V. Subhra Chakraborthy (1996 AIR 922,1996 SCC (1)490), SC held that rape is a crime against basic human rights and is also violative of victim’s most chrished of the fundamental right. A married woman too has the right to live in human dignity, right to rights over her own body.
● Right to Sexual Privacy – Any form of forceful and unwanted sexual intercourse violates the right to privacy. Justice K.S Puttaswamy V. Union of India (2017 10 SCC 1) held the right to privacy as a fundamental right and includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.
● Right to good health – It is one of the major problems faced by married women. A forceful sexual intercourse leads to take away her right to good health such as sexually transmitted disease (STD) like HIV/AIDS to wife from their husbands.
MARITAL RAPE IN OTHER COUNTRIES
In first-world countries like the USA, France, and Germany, marital rape is illegal. Criminalizing marital rape protects the right of women to withdraw consent at any point during sexual intercourse and break the assumption that marriage immediately grants consent for sex. In USA, Marital Rape became a crime in every state by 1993. Most states penalize marital rape like any other rape with fines (that could exceed $50,000) and prison terms (varying between several years and life in prison without parole). In Britain, In 1991, rape within marraige became a crime. The 2003 Sexual Offences Act clarified the law, giving consent a legal definition in England and Wales. The accused will face five years prison. In Bhutan, Marital Rape is considered an offence and a petty misdemeanour. Marital Rape is punishable by a minimum prison term of one year and a maximum term of three years.
JUDGEMENTS
1. RECENT JUDGMENT:
The Kerala High Court recently ruled that marital rape is a valid ground for divorce. The Kerala High Court stated that even though marital rape is not criminalised under the Indian Penal Code it would still come under physical amd mental cruelty which is a ground for divorce in India.
- STATE OF MAHARASHTRA V. MADHKAR NARAYAN (AIR 1991 SC 207)
The Supreme Court has held that every woman is entitled to her sexual privacy and it is not open for every person to violate her privacy as and whenever wished.
- Emperor V. Shahu Mehrab (AIR 1917 Sind 42)
The court held that husband was convicted under Section 304A IPC for causing death of his child wife by rash or negligent act of sexual intercourse with her.
- Sree Kumar V. Pearly Karun (1999 (2) ALT Cri 77, II (1999) DMC 174)
The High Court observed that because of wife is not living separately with her husband under decree of separation, even if she is subject to sexual intercourse by her husband against her will or not, offense under Section 376A IPC will not be attracted.
- Queen Empress V. Haree Mythee ((1891) ILR 18 cal 49)
The court observed that in case of married women the law does not apply between husband and wife after the age of 15, even if the wife is over the age of 15, the husband has no right to disregard her physical safety.
REMEDIES
1 in every Indian men admit to forcing their wives into sex, according to a 2011 study by the International Center for Research on Women. On an average, at least one in three women is beaten, coerced into Sex or otherwise abused by an intimate partner in their lifetime. So here are the remedies:
➢ First, It needs to be declared as a crime so that the victims can report about it.
➢ Protection of Women from Domestic Violence Act 2005 which actually provides a civil remedy to the victim or punishable to the extent of one year imprisonment, but there are no criminal penalties for marital rape where the wife is iver 15 years old.
➢ Section 498A of IPC – Whoever, being husband or the relatives of husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
CONCLUSION
Most women are afraid to fight back because they are financially dependent on their husband and have nowhere to go. It should be changed. Parents generally don’t openly talk about sex with their Children. Sex should be seen as a way of showing love to your spouse and not merely a way to grow your family and satisfy yourself. So please teach your son that ‘NO MEANS NO’, even if she is your wife. Patriarchal Society is consecutive from one generation to another; it can be eradicated through strict laws which is more commonly seen in Saudi Arabia, North Korea, Egypt, Iran, Afghanistan and other Countries. Even if she is a sex worker, her consent is necessary. By these amendments in India, this can be stopped and eradicated from Society.
REFERENCES
1. 1996 AIR 992, 1996 SCC (1) 490
2. AIR 2017 SC 4161
3. AIR 1991 SC 207
4. AIR 1917 Sind 42
5. 1999 (2) ALT Cri 77, II (1999) DMC 174