Marital Rape
Consent is a word which is a requisite element for a relationship between a man and a woman. Consent whether between the business partners or between a husband and wife or between the parties to the contract. The meaning is to give permission to do that thing. It is an important essential condition as specified under Section 13&14 of the Indian Contract Act, of 1872. In this article, we will deal with the relationship between husband and wife.
Marriage is the legally or formally recognized union of two people as partners in a personal relationship. There simply is no concept of consent in most marriages. The fact that a man is married to a woman in a majority of cases is seen as a license to sex, anytime, anywhere, regardless of the woman’s consent. In India, it is believed that marriage is a sacrament.
In today’s growing economy, we can see the number of increasing cases of violence or sexual assault against women. One thinks that there is no difference between rape and marital rape. But it’s high time; we need to understand the difference between these two.
What is rape?
Rape is a criminal offence as specified under Section 375 of the Indian Penal Code. It states that any man who forcefully commits sexual intercourse with any woman without her consent or if she is a minor is said to be committing an offence under Section 375 of IPC.
What is Marital Rape?
In simple words, unwilling sexual intercourse with your wife is said to be marital rape. Surprisingly, In India Marital Rape is an exception to Section 375 of IPC, i.e., Rape. India remains one of 36 countries where it is not a crime for a man to rape a woman — as long as they are married.
Difference
By carefully analyzing the picture, we can spot the difference between rape and marital rape. Rape is rape whether it’s committed by her own husband. That’s why consent is most important element in a relationship of marriage.
In India, it is believed that marriage is a sacrament, meaning a lifelong relationship between a man and a woman. There is a thin line of difference between the two. It is a superstitious belief that if a woman gives consent for marriage then she is also given consent for sexual intercourse. Just taking seven rounds of fire, doesn’t mean that a girl has consented to do sex.
Consequences Of Marital Rape
A woman who is raped by her husband, not only suffers physically but also emotionally or psychologically as well. Emotionally, in the sense, that she doesn’t have any support or no one is there to understand his feelings. Even though she doesn’t have any companion to share her feelings with and the one who is expected, he only raped her.
A woman also has psychological consequences. Some of the short-term effects of marital rape are anxiety, shock, fear, stress, etc. Some of the long-term effects are depression and problems in future in establishing relationships or trusting people. Mostly it is found that victim of marital rape suffers long-term consequences.
Misconception
There are some reasons that are continuously shielding a man to rape his own wives. Let us discuss those misconceptions.
AGAINST INDIAN CULTURE
The government in India thinks that most of the people are illiterate, poor, and conservative they think that man cannot rape his wife as good Indian wives always gave consent to their husband. It is argued that if the government criminalizes marital rape, then there is a high chance of falling down of marriage. This is a misconception in the mind of the government of India. This, it’s a violation of the fundamental rights of women.
IMPLIED OR PERPETUAL CONSENT
This is one of the major misconceptions that while getting married, a woman is given her consent. Marriage and marital rape are two different concepts, just taking an oath around the fire doesn’t mean that a woman has consented to sex. Traditionally it is believed like this. If we see, Eight out of Ten married women are facing marital rape. But they didn’t raise their voices as society thinks like that. If they try to raise their voices, they are simply boycotted by society.
WOMEN WILL MISUSE ANY LAW AGAINST MARITAL RAPE
This is also argued by the government that if they criminalize marital rape then there might be a high chance of misuse of the law by women. But it is the work of the judiciary to wipe out the misuse of law. On one hand, we blindly trust our government and judiciary as they are the protectors of the nations but on the other hand, the government and judiciary mistrust their citizens through these kinds of arguments.
This is quite evident that these all are only lame excuses for a male-dominated society.
Legal Position In India
Recently, the Gujarat High Court in its recent judgment on “Nimesh Bhai Bharatbhai Desai vs. State of Gujarat” while examining the law relating to sexual offences, observed that the husbands need to be reminded that marriage is not a licence to forcibly rape their wives at all.
However, in another case under the Delhi High Court, the Court completely dismissed the petition to criminalize marital rape, maintaining that the drafting of the law is the function of the legislature rather than the court, while the court is more concerned with the interpretation of the law than its drafting.
This is how our Judiciary is working. A citizen blindly trusts the judiciary and this is how our judiciary is working.
The Union Government itself dismisses to criminalize the Marital Rape.
One should need a law when rights get violated, so it’s a serious matter of fact that a woman who is married and forced into sex by her husband is not a crime. This is a serious issue which our government has to take seriously and take action by CRIMINALIZING MARITAL RAPE as soon as possible.
In the light of above discussion, some of the reforms can be made:
- The Parliament has to consider this issue very strictly and must criminalize Marital Rape as an offence under IPC.
- The punishment should be the same as Rape under section 375 of IPC as marital rape is as grave an offence as rape.
- The fact that the parties involved are married should not make the sentence lighter.
- Marital Rape should be made grounds to obtain a decree for divorce, and accordingly, marital laws in India should be amended taking into consideration the concept of marital rape.
Recommendation by the Law Commission of India in the 205th Law Commission report-“It further prays that the Union of India should be directed to amend the laws relating to age of marriage and minimum age of giving sexual consent so that both conform with each other. The petition prays for deletion of the explanation under Section 375 IPC under which marital rape is not considered rape unless the wife is less than 15 years of age.”
Conclusion
At present only remedy available to women against non-consensual sexual intercourse is given under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on the cruelty against a wife by the husband or a husband’s relatives. But still, Marital Rape is not considered as an offence in India. Several Countries like Denmark, Sweden, Poland, Norway and the Czech Republic, have already criminalized marital rape.
In India, Section 375 criminalizes Rape but made an exception of marital rape as no offence. But on the contrary, an exception to a husband is a violation of Article 14 and Article 21 of the Constitution of India. No woman is required to sacrifice his right to life with dignity. Article 14 provides equality but the non-criminalization of marital rape itself discriminates between married couples by giving exceptions to the husband to rape his wife. So no law should intervene in any rights and if so, it should be abolished.
There is a need to educate and create awareness among the society about the concept of marital rape. The way of thinking of the society should be changed. It only changes when our legislature and judiciary accept this as a crime. As far as conservatism is concerned, we have a live example in front of us of the decriminalization of Same-Sex Marriage or maybe be LGBTQ community. Most of these laws are made by our law system so why not criminalization of Marital rape.
“When that person who you entrusted your life rapes you, it isn’t the physical or sexual assault; it is a betrayal of the very core element of marriage, that is, Trust.”
! Rape is a Rape whether it is committed by her own husband!
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