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Marital Rape- A Sacred Crime

Marital Rape - A Sacred Crime it's not just the title of an article, it's a whole mindset and ideology of our Indian Society which treats women not as humans but as objects of sex. A woman after marriage is considered a man's property and he is the sole possessor of that woman and believes under the curtains of marriage he can exercise his every power.

Though marital rape is the most common and repugnant form of masochism in the Indian society, it is well hidden behind the iron curtain of marriage, and with leaders like Swaraj Kaushal (husband of former union minister Sushma Swaraj) supports this mindset and ideology of our Indian society.

 I quote, There will be more husbands in the jail, than in the house this was his tweet on 29 August 2017 followed up by another tweet stating, There is nothing like marital rape. Our homes should not become police stations. Marital rape is a matter of grave concern and our leaders instead of bringing it into the limelight are making a mockery of it.

The legal definition says marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. Despite the prevalence of marital rape, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and the larger society as a whole. The word rape' has been derived from the term rapio, which means to seize.

Rape is therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear, or fraud. It involves coercive, nonconsensual sexual intercourse with a woman. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as deathless shame and the gravest crime against human dignity'. Rape is not merely a physical assault, but is destructive of the whole persona of the victim. It leaves the victim tormented for the rest of her years.

Traces of marital rape in the history and its promotion

Sexual violence in marriage has a history as long as the institution of marriage itself. But for millennia, marital rape - like other forms of sexual assault - was considered a private trouble, not a public issue.

Early rape laws defined the assault as a property crime against the husband or father whose wife or daughter was defiled. Under this framework marital rape was an oxymoron since a wife was legally a husband's sexual property or a mere object of sex. When 17th-century rape laws - from British common law to the Qing dynasty in China (Ng, 1987) - sanctioned rape, it was considered a violation of a woman's chastity; again, not possible in the context of marriage.

For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract these were the words of blameworthy chief justice hale written in his book History of the Pleas of the Crown in 1736. This rule can be traced back beyond hale to St Augustine and possibly before him.

His publication faced a substantive challenge years later in R vs. Clarke (1949) and on October 23, 1991 the law lords unanimously swept away blatantly illegitimate law that states a women agree on sexual intercourse for marriage and cannot retract that consent. In India, the Supreme Court ruled in February 2015 that marital rape was not a criminal offense. A government minister then told the Parliament that marital rape could not be criminalized in India as marriages are sacred in our country.

This ideology has global resonance, not because people on many continents were influenced by Lord Hale, but because control of women's bodies through marriage is foundational to patriarchy. It's high time we end this patriarchy now. It is quite shameful for a nation with a population of 1.3 billion people with a glorious history of achievements and is on the roads of becoming a superpower by 2030 and yet it is among the 36 countries who have still have not criminalized marital rape.

With the recent trends, The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, The Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. But still rape has no fixed age it's a crime against the dignity of a woman and having said, now is the time to ring bells to our judiciary system and criminalize this so called sacred crime

The world eye on marital rape

Today there are many countries that have either enacted marital rape laws, repealed marital rape exceptions, or have laws that do not distinguish between marital rape and ordinary rape.

These countries include: Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States, and recently, Indonesia.

Studies suggest that women are more prone to danger and violence in their marital home rather than on streets, cases of dowry violence and domestic violence are ripping hearts of women across the globe Turkey criminalized marital rape in 2005, Mauritius and Thailand did so in 2007.

The criminalization of marital rape in these countries both in Asia and around the world indicates that marital rape is now recognized as a violation of human rights. In 2006, it was estimated that marital rape is an offense punished under the criminal law in at least 100 countries and India is not one of them. Even though marital rape is prevalent in India, it is hidden behind the sacred curtains of marriage. Today even the United Nations also recommends India to criminalize marital rape.

The crucial 3 trends that can be game changer
Regardless of traditional context, however, attitudes are shifting in all cultures. At this point in the 21st century, there are three significant trends that are changing attitudes toward marital rape.
First, the idea that women's rights are human rights is no longer a radical or fringe perspective. International human rights organizations are now recognizing abuse in the private sphere as a rights violation. In fact, sexual violence in marriage has been successfully used as grounds for seeking asylum in the US and Canada.

The second current trend that brings marital rape to the forefront is the global HIV/AIDS pandemic. Especially at this point of time when the entire world is battling COVID-19, there is a sense of fear of death from other global pandemics.

Research documents suggest that large numbers of women, particularly in sub-Saharan Africa, have been infected by their husbands. The lack of ability to deny sex - or even ask for sex with a condom - can be life threatening for women and their children. Public health policy and practice are increasingly cognizant of the damage marital rape does. Marital rape has been tormenting females all around the globe and it demands attention.

The third trend that is changing the way people think about marital rape is the global transformation of marriage as an institution. Marriage which is considered sacred and serves as a shield to this crime entitles husbands as ,The Legal Rapists.

The traditional model of marriage as a contract between families for the purpose of reproduction is giving way to companionate marriage based on intimacy - albeit unevenly and despite resistance. The idea that marriage is a relationship between two people based on romantic love validates the conceptualization of the wife as a distinct, autonomous being - an individual with bodily integrity. This change from reproduction to intimacy as the central purpose of marriage represents a tectonic shift in heterosexual relations.

Types of marital rape

The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society:

Battering rape: In which women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

Force-only rape: A rape in which husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: A rape that involves assaults and is the most brutal. These assaults involve torture and sexual acts and are often physically violent.

Legal status on marital rape

Legal position in countries like United States researchers estimate that 10% to 14% of married women experience rape in marriage. When researchers examined the prevalence of different types of rape, they found that marital rape accounts for approximately 25% of all rapes. Despite the prevalence of marital rape, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and the larger society as a whole.

In fact, it was not until the 1970s that the society began to acknowledge that rape in marriage could even occur. As it is believed that the sacred marriage itself gives right to husband having sexual intercourse with his wife without her consent. Importantly, the existence of any spousal exemption indicates an acceptance of the archaic understanding that wives are the property of their husbands and the marriage contract is entitlement to sex.

In England, earlier as a general rule, a man could not have been held to be guilty as a principal of rape upon his wife, for the wife is in general unable to retract the consent to sexual intercourse, which is a part of the contract of marriage. However, the marital rape exemption was abolished in its entirety in 1991.

Legal perspective from Indian scenario

Rape as a clearly defined offense was first introduced in the Indian Penal Code in 1860. Before this, there were often diverse and conflicting laws prevailing across India. The codification of Indian laws began with the enactment of the Charter Act, 1833 by the British Parliament which led to the establishment of the first Law Commission under the chairmanship of Lord Macaulay.

According to Section 375 of the IPC the act of sex by a man with a woman, if it was done against her will or without her consent, makes him punishable. The definition of rape also included sex when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Also, sex with or without her consent, when she is under 18 years is considered rape. However, under the exception, sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape. This is not just a loophole in our judiciary system, this indicates our complete failure in giving women their much deserving right to stand for their dignity and say it with pride that, Marriage is not an excuse.Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offense of rape.

But no law grants any punishment for marital rape. Some devastating events from the past led to many amendments. On March 2013, the rape law in the country was amended .the new tougher anti-rape law Criminal Law (Amendment) Act,2013- to punish sex crimes redefined rape and made punishments more stringent- including death for repeat rape offenders.

Events that followed was the recommendation of The Justice Verma committee of removing the exception to section 375. This recommendation was rejected later. Argument given by most of the people and even by the centre in court that criminalizing marital rape can be an easy tool for harassing husbands and is prone to misuse.

And counterpart of this argument is every law in our constitution can be misused and this is an implausible claim for not introducing new laws. History is evident of the fact that people are falsely accused of crimes that they have not committed but that doesn't suggest that those crimes should not be criminalized. A sheer audacity was reflected by an initiative taken by Dr. Shashi Tharoor back in 2019 when he moved a private members' Bill in Parliament, seeking the criminalization of marital rape. The government refused to consider it. The Centre has previously opposed the criminalization of marital rape, saying to Delhi HC that it would destabilize the institution of marriage

There is no harm in being optimistic and there is always a light at the end of the tunnel, therefore this marital law should look upon the various aspects of violation of fundamental rights such as Article 21 and should look upon making matrimonial amendments. Marital law should seek in providing grounds of filing divorce against husbands and must have stricter punishments to give the spark of fear in the hearts of husbands who are treating their wives as a mere object not realizing the motto of My body and My rights

Remarkable words by Justice Verma should reverberate in the ears of every Indian, True achievement of empowerment and equality of women has to be necessarily a conjoint effort of the individual and the state. India is a land enriched with cultural values and morals, a country known for worshipping women in forms of the goddess, as proud Indians, as humans it becomes our sole duty to introduce a much required marital law and realize it's an exigency.

A law that criminalizes marital rape and save guards dignity of our women, the pride of our motherland, a law which scrapes off the license given to husbands by the sacred institution of marriage to rape their wives. It's time we realize no institution is above an individual's dignity and a woman has every right to say No and that No has to be respected.

Written By: Devansh Dixit

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