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Marital Rape: A Call for Change in India and Beyond

Marital rape, a form of sexual violence within marriage, remains a sensitive and underreported issue despite growing awareness. This article explores the prevalence, consequences, and legal aspects of marital rape, emphasizing the need for societal awareness and legal reforms. Globally, marital rape transcends cultural and economic boundaries, affecting individuals from all walks of life. In India, the Indian Penal Code (IPC) historically included a marital rape exception, rooted in colonial-era laws and outdated notions of implied consent. This exception persists, leaving victims without criminal recourse.

While international bodies urge nations to criminalize marital rape, several countries, including India, have yet to do so. Legal reforms are crucial to address this gap and protect women's rights under Articles 14 and 21 of the Constitution. Effective strategies include raising societal awareness, education, and legislative changes to recognize and criminalize marital rape. Comprehensive efforts are needed to dismantle harmful stereotypes, promote consent education, and foster a culture rejecting all forms of violence within relationships. Addressing marital rape involves overcoming societal norms and cultural beliefs that view marriage as immune to legal intervention.

Marital rape is a form of sexual violence that occurs within the confines of a marriage or intimate relationship, where one spouse forces the other to engage in sexual acts without their consent. Despite growing awareness about sexual violence, marital rape remains a highly sensitive and underreported issue.Marital rape is a global issue that transcends cultural, social, and economic boundaries. It occurs in both developed and developing countries, affecting individuals from all walks of life. Unfortunately, due to the private nature of marital relationships and the stigma associated with discussing sexual violence, many cases go unreported.

Origin & Legal evolution in India

The Indian Penal Code (IPC) was enacted during British colonial rule in 1860, and it included a marital rape exception from the outset. Initially, this exception applied to women over the age of 10, which was later raised to 15 in 1940. The IPC is based on the 1847 draft by Lord Macaulay, the chairman of the First Law Commission in colonial-era India. This draft decriminalized marital rape without any age limit, rooted in the age-old notion of implied consent by married women to protect the conjugal rights of husbands.

Influence of the Doctrine of Hale and the Doctrine of Coverture:

The concept of implied consent originates from the Doctrine of Hale, articulated by British Chief Justice Matthew Hale in 1736. Hale asserted that a husband could not be guilty of raping his wife, as their mutual matrimonial consent implied ongoing consent for sexual relations. Additionally, the Doctrine of Coverture, which emerged during the same era, held that a woman had no individual legal identity after marriage. This doctrine was referenced in the 2018 Supreme Court of India ruling that struck down adultery as a criminal offence, highlighting its violation of women's fundamental rights by negating their legal identity and autonomy.

Global Perspective on Marital Rape:

Internationally, the United Nations has urged nations to close legal loopholes that permit marital rape, emphasizing that the home remains one of the most dangerous places for women. Countries like the United States, the United Kingdom, South Africa, and Canada have criminalized marital rape, reflecting a global trend towards recognizing and protecting women's rights within marriage. Conversely, countries such as Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka, and Tanzania have not expressly criminalized marital rape.

A Call for Reform in India:

Indian law now recognizes husbands and wives as having separate and independent legal identities, with modern jurisprudence increasingly focused on protecting women's rights. It is imperative that the legislature addresses the legal gap by eliminating Exception 2 of Section 375 of the IPC, thereby bringing marital rape within the scope of rape laws. Laws need to clarify the boundaries of interpersonal relationships and uphold constitutional ideals of equality, dignity, and bodily autonomy, while also considering the practical challenges of their enforcement.

A Different Approach
Different approach is needed to address the criminalisation of marital rape in India. Two central questions frame this debate:

First, can the state compel a woman to have sexual intercourse with her husband? Second, what role does the judiciary play in protecting the constitutional rights of a woman under Articles 14 and 21 of the Constitution?

The judiciary traditionally encourages a vertical approach to women's rights against marital rape by maintaining a strict public-private divide. This perspective has become the default over time, viewing constitutional rights primarily as safeguards against the state´┐Ża product of the contract between the state and its citizens.

Despite the judiciary's hesitancy to extend constitutional rights into the private sphere in cases of marital rape, there are instances of selective state intervention. For example, Section 9 of the Hindu Marriage Act, 1956, allows the court to mandate restitution of conjugal rights. This section permits the court to grant a decree of restitution if a husband and wife do not live together "without reasonable excuse," often depriving women by forcing them to resume conjugal relations with their husbands.

A horizontal approach to constitutional safeguards provides valuable insights. Scholars like Van der Walt, Jean Thomas, and Gautam Bhatia suggest that the institutions and structures embedded in our society constitute a set of norms, conventions, and patterns of conduct. These norms assign roles, functions, and power to individuals, often hierarchically. Reframing the issue from this perspective highlights the need to recognize and address the systemic and institutional forces at play in the context of marital rape.

Indian Law on Marital Rape

Mostly india does not have exact definition of Marital rape not specifics punishment but still this matter do covered under:

Section 375 of the Indian Penal Code (IPC):
Section 375 of the IPC defines acts that constitute rape by a man. However, it includes two exceptions. In addition to decriminalizing marital rape, it states that medical procedures or interventions do not constitute rape. Exception 2 of Section 375 specifies that "sexual intercourse by a man with his wife, if the wife is not under fifteen years of age, is not rape." In October 2017, the Supreme Court of India raised the age limit to 18 years.

Domestic Violence Act, 2005:

This act hints at marital rape by addressing any form of sexual abuse within a live-in or marital relationship. However, it only offers civil remedies, providing no legal avenue for marital rape victims in India to initiate criminal proceedings against their perpetrators.

The consequences of marital rape are profound and multifaceted. Victims often experience physical, emotional, and psychological trauma. Long-term effects may include depression, anxiety, post-traumatic stress disorder (PTSD), and a breakdown in the marital relationship. The pervasive silence surrounding marital rape exacerbates these consequences, as survivors may face isolation and lack of support.

Legal Perspectives:
The legal response to marital rape varies widely across jurisdictions. In some places, marital rape is explicitly criminalized, while in others, it may not be recognized as a separate offense. In countries where laws exist, enforcement and prosecution can be challenging due to societal attitudes, legal loopholes, and a lack of awareness. Advocacy for legal reforms that criminalize and effectively address marital rape is essential to provide survivors with the protection they deserve.

One of the major issue faced in term of marital rape is the indian law system or we can say our own judiciary system who is not ready to criminilse marital rape as criminal offence like othere kind of rape. Adding to that one of the judiciary decision regarding the case of marital rape is that as indian believe marriage is not only a paper work or contract between 2 parties but also a sacred institution.

Challenges in Addressing Marital Rape:

Addressing marital rape involves overcoming various challenges, including societal norms, cultural beliefs, and the perception of marriage as an institution immune to legal intervention. Efforts to combat marital rape require a comprehensive approach, including education, awareness campaigns, and support systems for survivors.

Societal Awareness and Education:

Raising awareness about marital rape is crucial in dismantling the culture of silence surrounding this issue. Education programs should focus on challenging harmful stereotypes, promoting consent education, and fostering a culture that rejects all forms of violence within relationships. Open conversations can help break down the barriers that perpetuate the cycle of abuse.

Marital rape is a deeply entrenched issue that demands urgent attention from society, policymakers, and law enforcement. Breaking the silence surrounding marital rape requires a collective effort to challenge cultural norms, enact and enforce protective legislation, and provide support for survivors. By acknowledging and addressing this form of violence, societies can work towards fostering healthier relationships and ensuring the safety and well-being of all individuals within marriages.

Written By: Rana Saman, 4th Year Law Student At Al-Ameen College Of Law.

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