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Marital Rape In India: Exposing The Grim Reality

"A man is a man; an act is an act; rape is a rape, be it performed by a man the 'husband' on the woman 'wife'."

In Indian culture, marriage is viewed as a sacred institution that should be based on respect, love, and trust. But a distressing reality the prevalence of marital rape remains within these walls of this institution. Englishmen made laws to control Indians when England ruled India. After marriage, women were regarded as the man's chattel under the majority of these rules, which are still in effect today and are based on Victorian and English regulations.

According to them, a man has a total authority over his wife's physical being and every aspect of her life. Men were therefore viewed as socially privileged for having sex with women without their consent. This essay provides information on marital rape in India, including its definition, legal standing, historical development, causes, the vital need for legislative change, etc.

What Is Marital Rape?

The term "marital rape" (also known as "spousal rape") describes non-consensual sexual contact between a man and his wife that was either induced by force, the threat of force or abuse, physical or psychological violence, or when she was incapable of consenting. It encompasses any penetrations (whether anal, vaginal, or oral) made against a woman's will or without her consent.

India is one of the 150 nations in the world where marital rape is not recognized by the law.

Unexpectedly, we all hold a belief in this particular type of magic, when a man and a woman sign a certain paper, take part in a traditional rite, or repeatedly walk around a fire and after that, poof, she's consented to have sex with the man whenever he wants.

Legal Status In India:
Despite worldwide awareness and campaigning against sexual abuse, India is still struggling to recognize and confront this serious problem. Marital rape is not explicitly criminalized in India. The country's judicial system maintains the "marital rape exception," which protects a husband from being prosecuted for raping his wife.

Exception 2 to Section 375 of the IPC: The section that defines what the offence of rape is says: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape". It basically means that if a married man compels his wife to have sex against her consent, regardless of physical threats, such as slipping her off a roofie or threatening to murder her parents, she cannot file a rape complaint with the police. This exception is based on the Doctrine of Coverture, which states that women in society have a non-independent locus standi as a result of male-dominated culture.

Historical Progression:
The Indian Penal Code (IPC) was introduced in 1860, allowing the exception of marital rape for women over the age of 10 years. It was later amended in 1940 to include women over 15 years old. In 2000, the Law Commission rejected its removal, citing interference in relationships. Following the Nirbhaya gangrape and murder, the Justice J.S. Verma Committee recommended removing the exception, but it was not accepted by a parliamentary panel in 2013

The Supreme Court in Independent Thought v. Union of India and the Delhi High Court in RIT Foundation v. Union of India held that the part of Exception 2 of section 375 which excused marital rape of minors between the ages of 15-18, was unconstitutional, which means that the term 15 years in the exception now needs to be read as 18 years. Currently, there are no criminal penalties for marital rape when a wife is over 18 years old.

In March 2022, Justice M. Nagaprasanna of the Karnataka High Court declined to throw out a rape charge against a man accused of raping his wife and keeping her as a sex slave and expressed the opinion that the institution of marriage cannot be used to confer any special male privilege or a license for unleashing a "brutal beast" on the wife.

ln an analogous vein, the Court noted in September 2022 that in order to protect women against forced pregnancies, marital rape must be seen as falling under the definition of "rape" for the purposes of the Medical Termination of Pregnancy (MTP) Act.

The Bhartiya Nyaya Sanhita (BNS) Bill, 2023 also retains the provision legalizing marital rape, unless the wife is below 18. This non-recognition of marital rape contributes to the invisibilities of trauma and health implications to the women. So, to cut a long story short, India's rape laws have changed significantly since the independence, however the exemption for marital rape has remained constant.

Right To Health:

The right to Good Health is a fundamental right enshrined in Article 21 of the Indian Constitution. Individuals' physical and mental well-being are considered to be part of their health. Every person has the right to a peaceful and healthy living. The consequence of decriminalizing marital rape is a breach of this basic right since it lowers a woman's physical and emotional well-being and causes substantial psychological and bodily injury at the command of her husband. Furthermore, violent sexual intercourse coupled by extreme assault and battering can have a terrible effect on a woman's physical and mental health, as well as induce different Sexually Transmitted Diseases (STDs).

The Distressing Statistics:

The absence of legal protection against marital rape is an urgent women's rights concern for India, given that estimates from the third (2005-06)r ound of the National Family Health Survey (NFHS) revealed that the prevalence percentage of Intimate Partner Violence (IPV) against women ranges between 3% to 43% in different states of the country.

The 5th round of the survey, held in 2019-2010, suggests that 1 in 3 women in India aged 18-49 experience spousal violence. According to this study, 5.6% of married women were physically coerced into having sex with their husbands, 2.7% were coerced into having unwanted sex, and 3.7% were threatened with physical violence into having sex against their will.

Under-Reporting Obscures The Problem's Real Scope.:

The NFHS survey warns against "under-reporting" because anecdotal evidence gathered by the study indicates that approximately 9 out of 10 victims of intimate partner violence refused to disclose the violence or abuse they suffer due to a variety of factors, including fear of stigma, reprisals, and entire reliance on the spouse.

According to the NFHS11, 82% of married males were sexually aggressive with their wives, as did 13.7% of former husbands, making spousal sexual violence a major problem. It was also shown that 90% of survivors of marital sexual assault did not take any action or seek help. Despite the circumstances, marital rape is still considered a domestic violence issue in India.

As a result, the remedies available to a victim are civil in nature and are restricted to "protection orders, judicial separation, and monetary compensation" under The Protection of Women from Domestic Violence Act, 2005.

'No exception under law can be so absolute that it becomes a license for the commission of a crime against society'.

The Countries Which Have Criminalised Marital Rape:

Poland was the first country to expressly outlaw marital rape in 1932. The criminalization of marital rape in Australia began in the state of New South Wales in 1981 and expanded to the other states between 1985 and 1992. Since 1993, marital rape has been a felony in each of the US's 50 states.

The exemption was similarly abolished in Nepal in 2002 after the country's Supreme Court ruled that it violated both the right to privacy and equal protection under the law. Since 1992, marital rape has been prohibited in the UK, where it is seen as a form of domestic violence. Several nations have passed laws eliminating the marital rape immunity in the 1980s including Canada, Ireland, South Africa along with others.

Factors Contributing To Marital Rape Perpetuation:

  • Patriarchal Standards:
    India's patriarchal culture often views wives as property of the husband, requiring them to obey and fulfil their husbands' wishes.
  • Fear of Social Stigma:
    Victims are compelled to keep their traumatic experiences a secret out of fear of social stigma, victim-blaming, and family dishonour.
  • Religious and Cultural traditions:
    Although some religious and cultural traditions in India may not support marital rape, they may unintentionally uphold the notion of female servitude and marital enslavement.
  • Limited Awareness:
    A sizeable portion of the Indian population still doesn't understand what marital rape is because of a lack of education and exposure to progressive ideas.
  • Weak Enforcement of Existing Laws:
    Although India has laws prohibiting sexual assault and domestic abuse, enforcement is patchy and does not specifically address marital rape.

The Vital Need For Legal Reform And Social Change:

  • Criminalization of Marital Rape:The legal system can recognize women's rights to be free from violence, regardless of their marital status, by removing the marital rape exception.
  • Support Systems:
    • Establishing helplines, counselling centres, and shelter homes can provide much-needed support and assistance to survivors of marital rape.
  • Education and Awareness:
    • Comprehensive educational programs should be implemented at schools, colleges, etc to raise awareness about marital rape, consent, and gender equality.
  • Combating Patriarchy:
    • Addressing patriarchal norms and stereotypes is critical to effectively combating marital rape. Encouragement of gender equality and mutual respect within marriages will aid in breaking the cycle of violence.
  • Enhancing Law Enforcement:
    • It is critical to train law enforcement organizations to handle marital rape cases sympathetically and quickly. Effective enforcement of current laws can serve as a deterrence to potential offenders.

Susceptible To Misuse:

While many may call for the criminalization of marital rape, many campaigners believe that we must not ignore the rights of males in this discussion. They contend that making marital rape a crime might encourage some women to purposefully make false accusations against their spouses.

Given the nature of the crime and the absence of any witnesses in the bedroom, it would come down to "her word vs. his." In marital relationships, a medical evaluation would be pointless unless there was some type of cruelty involved. It would also be difficult to pinpoint the exact moment when consent was denied or rescinded.

This, combined with gender-specific rape laws and established evidence law norms like the presumption of lack of consent and entire reliance on a rape victim's only testimony even in the absence of corroboration, make it a formidable provision with a high danger of misuse. Its prohibition has also been hampered by worries that disgruntled wives may use "rape" accusations against husbands as leverage for coercion, blackmail, or punishment.

The Institution Of Marriage And How It Facilitates Special Treatment:

The Delhi High Court heard the last rebuttals from the organisations in favour of retaining the marital rape exception in January 2023,with attorney J. Sai Deepak bringing the Men's Welfare Trust's case(petitioner) to a close. Sai Deepak and RK Kapoor both cited Supreme Court rulings that stated marriage created a special relationship between the parties and that this allowed for different classifications of sexual offenses against women. They contended that since the legislature obviously intended differential treatment depending on marital status, it was incorrect to state that the definition of rape in Section 375 applies uniformly to all situations in which a woman does not give permission.

Sai Deepak argued before the bench that marriage had altered everything. He stated that rape is an act with context or surroundings. As a result, context and consent are inextricably linked. What does it matter if the consent is given five minutes before the wedding or after? A number of factors come into play. He further asserted that married women who are coerced into having non-consensual sex by their husbands already have access to adequate legal remedies under the Indian law.

Recent Advancement:
India's struggle to criminalize marital rape has been precarious. In May of this year, the Delhi High Court issued a 1:1 split ruling on the question of criminalizing marital rape, stating that the matter will be heard by the Apex Court. The two-judge bench of Rajiv Shakdher and C Harishanker disagreed on whether some sexual actions performed by a husband may be considered constitutional or not.

In July 2023, the Supreme Court had decided to defer the hearing of the marital rape petitions until the constitution benches complete their ongoing hearings.

In a nutshell, marital rape remains a serious issue in India, but progress can be made by making it a criminal offense, increasing awareness, and challenging traditional patriarchal values. Even now, many women are unaware that they have the legal ability to prosecute their husbands for such offenses, or that their consent is necessary before their spouse may make even the most subtle sexual approach.

Women must be educated about their legal rights. Those who have been assaulted should have the guts to come up and speak. Articles 14 ,15, 19, and 21of the Indian Constitution protect fundamental rights, including the right to live in dignity, the right to privacy, the right to sexual autonomy, and the right to express oneself.

"Expectations of sex in marriage cannot lead to forcible sex", as rightly submitted by senior advocate Rebecca John before the Delhi High Court in RIT Foundation vs Union of India. Thus, it requires a collective effort from individuals, communities, lawmakers, and civil society to create a culture of consent, respect, and gender equality. Only then can we hope to eliminate the lasting impact of this terrible crime and ensure everyone's safety and justice.

Award Winning Article Is Written By: Ms.Shailja Singh
Awarded certificate of Excellence
Authentication No: NV368915987295-19-1123

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