File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Marital Rape - Criminal Justice System in India And Initiative Steps Towards Exigency

Marital rape has been widely debated in India. India unlike other developed nations has yet to criminalize marital rape. Activists and Indian media endorse the opinion that India's patriarchal society makes it necessary and imperative that marital rape should be criminalized. On the other hand, a more orthodox view remains that marital rape cannot be criminalized because of the sacred nature of marriage in Hinduism and how criminalizing marital rape would destabilize the institution of marriage.

Even though India as a nation is based on the theory of equity, it still has not recognized the right a woman has in controlling marital intercourse as a component of equality. As the nation lacks any sort of legal provisions regarding marital rape, the victims' only resort is to go to court. Courts have various methods to identify marital rape and have given strict punishments but due to the lack of legal provisions, they are bound and hence cannot describe forceful intercourse by a man upon his wife as marital rape.

Hence, the Judiciary is not enough and it requires the help of the legislature. The laws have to adapt to the changing reality of society. Government has presented the case to Delhi High Court and stated two reasons against the criminalization of marital rape. First, that marital rape cannot be criminalized because marriage is sacred and the criminalization of this act in the Indian context would lead to the destabilization of society. Secondly, it should not be criminalized because of the huge number of fraudulent cases that may be filed against husbands. It is necessary to debase the assumptions on the part of the government and other Orthodox institutions.

The Indian government has argued that marital rape cannot be criminalized because what might seem like rape to the wife may not be rape in the eyes of others. This statement hints at how regressive Indian society is and has become a standard defence in rape cases. Rape is only about the victim and his or her consent. The crime is committed when the woman feels violated. That is the only standard that must be looked at. Social perception of the incident or the woman's behaviour can play no role here. Hence, it doesn't matter whether there is a disparity between the views of the wife and others. This cannot be a yardstick to deny her justice and say that what happened to her was not rape.

History
In India, the history of marital rape is very wide and very complex. Law against marital rape had been made and changed also but not entirely. Only some part had been changed. The concept of marital rape has not taken seriously as compared to rape. Marital rape is not defined in any statute or anywhere, only the definition is being given by some authors and some political and legal thinker. In much of the world, marital rape has been seen as the crime or tort or theft to a man's property. In the case of marital rape, property damage is not meant that the damage to the victim, but instead to her father, or her husband's property, therefore, it had been seen as a husband cannot rape her wife. By this, it is clear that a husband cannot be punished for the rape of her wife.

A husband cannot be guilty of rape with his lawful wife. Until the 20th century, there was a doctrine due to which after marriage the legal right will be subsumed by her lawful husband. The implication was that of that doctrine, if you got married then your spouse will not be guilty of doing rape with you, then with charged with raping oneself. In some culture it was seen that the consent for marriage is not necessary, following this logic if the consent is not necessary for marriage, then the consent for intercourse is also not necessary. Even the autonomy of the wife is being compromised in some cultures where the bride price is paid.

In some part of Africa forced to sex in marriage was not prohibited, but in some circumstances like just after childbirth, during mensuration cycle or death of a close relative, a woman can refuse for the sex. Until recent decades the rape has been understood as a crime against honor and dignity not only in the domestic region but in international law also.

A. To Geneva fourth convention women shall be especially protected against any attack against their honour, in particular in rape, enforced prostitution, or any type of indecent assault.. until 1990 the crime like rape not recognized as a violent crime against human dignity, not even the last decade rape was considered or understood as a crime against women, her dignity, her reputation, her freedom, her liberty, instead of her father's, family's and even her husband's honor. In some culture, the thinking is that the property withheld with a female is her virginity, following this logic the female is the property of her father, after marriage, it will be of husband’s property.

Therefore, a man cannot be prosecuted for the rape of his wife, because she is in her possession. However, if some other guy rapes someone’s other wife then it could be considered as a serious crime against the stealing of his property (women’s sexuality). bride capture was thought as to be the stealing the father’s property by raping his daughter, therefore the laws which had been created were to protect the property interest which man had in their women, not to protect themselves.

This concept of women as a property leading the current marital rape ideology and the laws throughout the globe. In the U.S. the case of Kirchberg vs. Feenstra, 450 U.S. 455 (1981) the wife's legal subordination to her husband was fully ended up. In a case of U.S. supreme court in which the court held a Louisiana head and master law, which gave sole control of the marital property to the husband is unconstitutional. Many jurisdictions were held in the U.S. including their all states to criminalize the marital rape from the 1990s. the common law of English has a very great impact on that particular trend.

Present scenario in India
In India, marital rape is not an offense. No strict rule prevails in India regarding that. Enactments, rules, laws, regarding marital rape is either esoteric or non- existence and also it depends on understanding by the courts. In IPC there is a provision for rape, but also there is an exception regarding marital rape sexual intercourse of man with his lawful wife, the wife not being under age of 15, is not rape. As per section 376, which provides the punishment for the rape a rapist can be rebuffed with detainment, not under the period of 7yr. but it may extend to 10yrs.

And also, at the risk of fine unless the lady raped is her spouse, not under the age of 12yrs. In that particular case, the rapist can be rebuffed with the detainment of at least 2yrs. And also, the fine can be imposed or both. Hence, it can be said as the marital is will consider is the spouse is under 15 yrs. of age and even the punishment is also milder.

There is no legal help or security for the spouse after the age of 15, which is against human rights direction. A similar law that accommodates the legal age to agree for marriage is 18yrs., shields from the sexual mishandle just those up to the age of 15 yrs. According to the Indian penal code the cases where the spouse can be criminally arranged for the marital rape is under:

  1. When the wife is between 12-15 yrs. Of age, the offense is punishable with 2yrs. of detainment or fine, or both
  2. When the spouse is underneath 12yrs. Of age, offense culpable with the detainment of either portrayal for a term may not be under 7yrs. But can be extended to 10yrs and fine can also be imposed.
  3. Rape of wife above 15yrs of age is not punishable.
  4. Rape of judicially isolated spouse, the offense is culpable with the detainment of 2yrs.

Protection of women from domestic violence act, 2005 was passed in 2005 for the protection of women from domestic violence of any kind. Under this act marital rape was considered as local violence against women's dignity. Under this act, a woman can reach to the hon`ble court and can get legal partition form her husband for marital rape.

Marital rapes is a lady's body rape, in this way her trust got broken and throwing her it might be said of instability and dread. Her human rights got exploited and ruined at the holy place of her marriage. the laws for securing the dignity of the women from the marital rape is lacking behind and the means taken are unacceptable. According to these ‘laws' agree to a wed is agree to draw in sexual action.

However, indulging to sexual intercourse means to agree to be exacted with sexual brutality? Viciousness makes a person feel dread and instability making the lady submitted to sex. Consenting to sex is a different thing. The refinement to the consent and non-consent is central to the criminal law. It cannot be except that lady can maintain her charter to life and freedom, but not her body after her marriage.

There should be a change in the meaning of the rape in the Indian Penal Code. The main relief for the ladies is so far under the section 498-A of Indian penal code, managing remorselessness, to insure themselves against the unreasonable sexual direct by the spouse. There is no standard of measure of the courts of unnatural within imply spousal relation.

  • Is the reason for sex is unreasonable?
  •  Is there any consent for sexual intercourse?
  • Is marriage permit to Rape?

There is no answer before the public from the judiciary. Nowadays some countries have developed the rules and laws regarding marital rape, revoked special cases regarding marital rape or may have special laws that don't recognize the rape or marital rape. This clearly shows the infringement of human rights. In 2006, it was assessed that the marital rape is an offense under criminal law more then 100 nations, India was not of them. There have been lots of enactments in India regarding the violence against women like child labor, dowry, or brutality against women in her own house but, marital rape is neglected at all.

According to strategy, producer marital rape has been neglected to pick-up acknowledgment as wrongdoing. In India, Marital rape has been holed up between the drapes of marriage. Rape is a grave infringement of a person’s individual life or basic ideals to life not only savagery against women.

A connection between culprit and causality cannot transform it. In the same manner, it is not right to trust that sex with a spouse is a husband's privilege given to him at marriage. Marital rape is associated with social disgrace as smothered dependability. Is has been seen that marital rape has very chronic, more traumatic with longstanding results: physical and mental. Although marital resistance is also pulled back in a few nations.

Our state is falling in its obligations to guarantee sex equity that includes security from wrongdoing and manhandle. In India, patriarchal families consider that the ladies re unimportant property of other's guardian. Marital rape is considered as rape against a spouse or the guardian in India. Our legislature has also been affected by this thinking in disregarding offenses of spouse rape by giving it as a shield of marriage right of the spouse and by using this they are knowingly tolerating that ladies are only a protest of their sexual satisfaction of her better half with no will of her own over her sexuality. This discernment has laid down ladies’ charter to uniformity and equity.

Supreme court cases
There are some supreme court and some high court cases for marital rape. There are some most important judgments of the courts.

Right to human dignity
In Francis Coraille Muin vs. union territory of Delhi, the idea of a right to life was highlighted under article 21 of the Indian constitution. According to the said case article 21 incorporate with the right to live with human dignity and all that accompanies it, to be specific the minimum specification of life. The right to live with human dignity is a standout amongst the most fundamental component to right to life which guarantees the independence of a person. After that, some essentials were also discussed like adequate nutrition clothing and shelter also were discussed.

In the case of the chairman, railway board vs. Chandrima das the court had observed that the rape is not the crime against an individual, but huge violence against the society as well or as a whole. The supreme court has held in Catana of cases that the offenses of rape abuse the right to life or right to live with human dignity.

In the case of Bodhisattwa Gautam vs. Subhra Chakraborty court held that rape is to manner the marital exception principle is violence of spouse's charter to live with dignity and give spouse appropriate to drive wife with to have sexual intercourse without her will is along these lines unlawful.

Right to sexual privacy
Right to privacy is not defined anywhere in the Indian constitution. But in a series of cases like Kharak Singh vs. the State of U.P.; Govind vs. state of Madhya Pradesh; Neera Mathur vs. Life Insurance Corporation supreme court has observed that the right to privacy is intrinsically ensured the extent of article 21. The right to privacy under article 21 incorporates a right to allowed to sit unbothered and not aggravated. Any type of intense sex damages the right to protection sexual security. It is presented that the teaching marital exclusion to rape damages a wedded a lady entitled to charter to protection by driving her to go to sexual intercourse without wanting to.

In the case of Maharashtra vs. Madhukar Narayan, the supreme court held that every woman is entitled to sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he needed.

In the landmark case of Vishakha vs. the State of Rajasthan, the supreme court has extended the right to privacy in the working environment also. Further, along with a similar line, we can translate that there exists a right to privacy to go onto sexual intercourse even inside a marriage. Subsequently, decriminalize the rape in marriage, the marital exception in teaching damages this right to privacy of a wedded lady is consequently is illegal.

Social aspect
In May 2015 bill was presented to the parliament to criminalize the marital rape, but it was struck down because of some MPs. They stated that marriage is a sacred institution and disturbing the concept of marriage will lead to demolishing the marriages. Even some MPs had stated that India should proud of it because of the lowest divorce rates. The statement was issued without acknowledgment of the fact that women tolerate the violence or the abuse within some relationships.

Indian culture for women is full of tolerance, abuse, adjustment is propagated to save and respect the honor of Indian families which leads to the fact that murders, violence, suicides are the price which women have to pay. Even when some women raise their voice against the domestic violence against women leads to call them anti-family warriors breaking the sacred barrios and converting bedroom as a battle-field. This concludes that the concept of marital rape has to be re-examined and need to take step immediately accordingly.

Debates regarding criminalizing the marital rape
Women’s movement of India demanding the criminalizing the marital rape form a long time. After the Nirbhaya’s rape justice Verma has stated some recommendations for penalizing the marital rape. That report stated that rape is the outdated notion of the marriage that makes a male feel like his wife is his property. It shows out the rule according to which at the time of marriage girl should be consented that she must have to indulge in the sexual intercourse with his husband when he wants. This committee has also mentioned that the existing relation is not a valid defense against marital rape.

Then this recommendation has neglected by the govt. by giving some suggestions rather than to tackle the rape cases. Since independence the successive govt. has decided the against the touching the sacred institution marriage based on the illogical thinking that it will disturb the sacrament of the institution marriage, it will attack the sanity of marriage and also somewhere it is also stated that it will be the weapon for women which they may use against their husband to defame them or to torture them to fulfill their demands, the state has been disturbing or violating the fundamental rights to married women. While discussing this topic in Rajya Sabha the home minister of then stated that the concept of marital rape internationally is not valid or right.

He has also stated that the concept of marital rape cannot be understood by Indian population because of illiteracy, poverty, and also the main reason can be as the Indian population sees the marriage as a sacrament. The ministers like many others have stated that ... wife from marriage is duly bound to sacrifice her body silently for the sexual whims ad for the desire of her husband, so she must submit herself for the ravage of her body without any complain... according to which the male community is allowed to rape their wives with impunity. Such thinking didn't see the marital rape as social violence and the killing of the soul of a female or as a widespread problem.

This view is a violation of social customs and also the religious beliefs as a shield to endorse the retrogressive ideologies. This view is sanctioning and legitimizes sexual abuse in a very dramatic way. It has been done while censuring the poor for sexual violation over the fact that the sexual violation is also been done in the poor household too.

Ideological and legal incoherence
The idea of not touching the institution of marriage is based on Manusmriti. In the Victorian era, rather denying, sex they actually stated that denying the paradigms make a lady doing something against their holy duties and leaving the path of being an ideal wife. This particular logic fails to recognize the fact that marital rape is an extreme form of rape. It is the violation of the trust of a person and also the sanctity in a relationship besides it overlooks the basic principle of women's bodily integrity.

The rationality had failed to address the inequalities inherit the system and in doctrine the acceptability of sexual violence against women as a ‘normal'. During the marital tie, two types of arguments were proposed to deny the women for their protection of them against these types of violation.

  • One set holds that due to poverty, illiteracy, and Indian situation, the law against Marital rape will not prevail in the Indian continent or it cannot prevail elsewhere.
  • The second thought urges that the women are using their-these types of rights against the male community, for fulfilling their demands and trivializing the judiciary.

The first set is based on the presumption that more then the half of the population is illiterate and cannot understand the intricacies of the marital rape and sexual violence. The next point is a direct negation of the first that the Indian women are very smart to understand the complexity and technicalities the law and are, therefore, badly using their rights ‘implicate their family to take revenge.

Also, both the points showed that except the wife as a tolerant, adjusting and assumes that the wives cannot complain against their husband and if they do, they will not be considered as a good wife. As per these arguments or the conventional norms a good wife is that wife who fulfills any type of demands without their consent or without speaking any single word against it and will do sacrifice for their family, and also leave their identity. This type of social construct is that on which marital relation is based is autocratic, in-egalitarian, and based on authoritative. It is based on male domination and women’s subjugation.

Are Wives lesser citizens?
Indian constitution provides the right to equality, liberty, and dignity to everyone who resists in the Indian nation however when it comes to the actual implementation of the law, that paradigms are hardly revoked. According to this concept, the court is empowered to submit to the conjugal act. That provision is being read as a consent of the partners within the marriage. The language which has been used in it humiliates the rights of the women.

When it comes to the implementation of these clauses the Indian courts end up by giving some confusing statements when it comes to the rights of the wives. In the case of Punjab High Court, it was held that introduction of Constitutional law in the home is most inappropriate. It is like introducing bull in China shop. It will be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and married life, neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of cold principles of Constitutional Law will affect a weakening of marriage bond”

The NCRB report for the year 2013[14] shows that 117 victims of incest rape (rape by blood relatives) were reported in 2012 whereas parents/closed family members or 1.7% were involved in rape cases (539 out of 31,807) and in 7.3% cases (2,315 out of 31,807) relatives were involved. Those statistics do not include numerous cases where wives are being raped by their husbands. According to that statistics, the marital rape didn’t do by the married spouse only, it can be anyone from the family.

For centuries man is controlling the asset of his legal wife, and also on their body and bodily integrity as a father and husbands. in such a situation the man is all allowed to exploit, abuse, and do torture and also derive the pleasure on her body. From decades and centuries, women are being seen as powerless-creatures. Sex is the unchallenged and unquestioned topic in any relationship and women are always used as an object of pleasure. So, it is obvious to see the stories and scenes of violence, abuse, sexual violence are common within the marriage.

Is marital rape a criminal offense?
Rape with anyone married, unmarried is a clear violation of the fundamental right to dignity and bodily integrity of that particular person. It can be to do hope if the marital rape will be considered as a crime because it fulfills the criteria to be an offense, it has harm, pain, violation of fundamental right, and humiliation of women with the intent or menswear in it.

These type of biases leads to distorting the spirit of the law in the way to enforcement and application of the law. in the present situation, one could understand why the law has been made? Laws are made to protect the person from violation to preserve the sanctity of the marital institution, are neither to preserve the dignity of the women nor are these applied to save the life of the women being abused.

Conclusion
In India, the history of marital rape is very wide and very complex. Law against marital rape had been made and changed also but not entirely. Only some part had been changed. The concept of marital rape has not taken seriously as compared to rape. Marital rape is not defined in any statute or anywhere, only the definition is being given by some authors and some political and legal thinker. In much of the world, marital rape has been seen as the crime or tort or theft to a man's property.

In India, marital rape is not an offense. No strict rule prevails in India regarding that. Enactments, rules, laws, regarding marital rape is either esoteric or non- existence and also it depends on understanding by the courts. In IPC there is a provision for rape, but also there is an exception regarding marital rape sexual intercourse of man with his lawful wife, the wife not being under age of 15, is not rape. As per section 376, which provides the punishment for the rape a rapist can be rebuffed with detainment, not under the period of 7yr. but it may extend to 10yrs. And also, at the risk of fine unless the lady raped is her spouse, not under the age of 12yrs. In that particular case, the rapist can be rebuffed with the detainment of at least 2yrs. And also, the fine can be imposed or both.

Hence, it can be said as the marital is will consider is the spouse is under 15 yrs. In the case of marital rape, property damage is not meant that the damage to the victim, but instead to her father, or her husband's property, therefore, it had been seen as a husband cannot rape her wife. Rape with anyone married, unmarried is a clear violation of the fundamental right to dignity and bodily integrity of that particular person. Indian constitution provides the right to equality, liberty, and dignity to everyone who resists in the Indian nation however when it comes to the actual implementation of the law, that paradigms are hardly revoked.

According to this concept, the court is empowered to submit to the conjugal act. That provision is being read as a consent of the partners within the marriage. The language which has been used in it humiliates the rights of the women. The idea of not touching the institution of marriage is based on Manusmriti. In the Victorian era, rather denying, sex they actually stated that denying the paradigms make a lady doing something against their holy duties and leaving the path of being an ideal wife. This particular logic fails to recognize the fact that marital rape is an extreme form of rape.

Written By: Prince Chauhan, Student, Postal address- 27-D street no.11-B, Rajendra Park Extn. Nangloi West Delhi, New Delhi- 110041
Contact no.- 9355183836, 8588852755 / Email id- [email protected]
Co- author- Bharat, Student, Postal address- H no. 484, Near Kolawali Chopal, Khera Kalan Delhi- 110082
Contact no.- 9667097715/ E-mail ID- [email protected]

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Constitution of India-Freedom of speech ...

Titile

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Types of Writs In Indian Constitution

Titile

The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly