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What does it take for our country to criminalise-Marital Rape

Marital rape does not become a rape they say. And why would it be ? Since he has posted a logo of his surname on her body-Namita Singh

A women's privacy and rectitude is degraded by any kind of sexual offence against her. After Nirbhaya Case in 2013, rape laws were amended on the recommendation of the Justice Verma Committee Report. However, marital rape in India is an example of implied consent by both partners. Marital rape is considered as a form of domestic violence and sexual abuse.

Definition of Rape

Under the Indian Penal Code (IPC) Section-375 rape is defined as:

375. Rape:

A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
  1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or the other person; or

  2. inserts, to any extent, any object or a of the body, not being the penis, into the vagina, the urethra or anus of a lady or makes her to try to to so with him or the other person; or

  3. manipulates any a part of the body of a lady so on cause penetration into the vagina, urethra, anus or any a part of body of such woman or makes her to do so with him or any other person; or

  4. applies his mouth to the vagina, anus, urethra of a lady or makes her to try to to so with him or the other person,

Under the circumstances falling under any of the subsequent seven descriptions:

  1. Against her will.

  2. Without her consent.

  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law-fully married.

  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

  6. With or without her consent, when she is under sixteen years of age. Explanation-Penetration is sufficient to constitute the sexual activity necessary to the offence of rape.

    • Explanation I:
      For the purposes of this section, "vagina" shall also include labia majora.

    • Explanation 2:
      Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
      • Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
    • Exception:
      Sexual intercourse by a person together with his own wife, the wife not being under fifteen years aged , isn't rape.

This means sexual intercourse with a women against her will, by coercion or fraud or at the time when she is intoxicated or of unsound mind or in any case under the age of 18 years.

Where the exception being a man having sexual relationship with his own wife who has attained the age of majority i.e. 18 years old will not considered as marital rape or sexual assault. A man has full right to maintain sexual relations or can force his wife to establish sexual relationship and the law or the court would not hold the husband liable.

So, in a way we can say that a man is allowed to attempt rape of his wife above the age of 18 years, and she cannot convict her husband of committing the offence of rape.

Types of rape

There are three kinds of rape:

  1. Battering rape: when there beating and rape together.
  2. Force-only rape: this describes a husband who uses threats and violence only to the degree necessary to coerce sex.
  3. Obsessive rape: the most openly sadistic form of rape.

Violation of the laws and articles

Some major articles of the constitution and amendments and laws are violated due to marital rape:

  • Article 14 of the constitution this article ensures that [the] state shall not denying person equality before law and protection within the territory of India. Where the constitution gives protection the other side Indian criminal law discriminates women facing rape by their own husbands. A new legislation was passed i.e.
  • The Domestic Violence Act, 2005 which was created to protect the victims from domestic violence, however marital rape was not included as a criminal offence in this act.
  • Article 21 of the constitution ensures that no person shall denied of his life and personal liberty except the procedure or activities mentioned in the sub-clauses or exception.

Article 21 includes the right to health, safety living conditions, privacy, integrity. In recent times the courts have started acknowledging right to abstain from sexual intercourse and to be free from unwanted sexual relations.

In the case of:

The State of Karnataka v. Krishnappa

the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.

In Suchita Srivastava v. Chandigarh Administration

the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

In the landmark case of The Chairman, Railway Board v. Chandrima Das, the Hon'ble Court held that rape is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Rape is a crime not only against the person of a woman, it is a crime against the entire society. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.

The Supreme Court in recent times has recognised right to abstain from sexual relations for all women, irrespective of their marital status.

But even today there is no specific law or amendment dealing with marital rape. In a country where the new laws should reflect the modern reality and where speedy justice to women, children and weaker section of people should be provided. The major issue of our society right now is marital rape where the marriage which acts like a sacred base to this heinous crime. Where are the people who talk about the great modern world, is raping their own wives a good example to modern leading world.

Rise in the marital rape in India

Rape if the fourth most common crimes in India. The National Crime Records Bureau( NCRB) 2018 annual report 33,356 rape cases were reported across the country. Out of these 31,320 were committed by someone known to the victim (93.9% of the cases). According to the WIRE if:
the husband is an alcoholic 66% of married women experience physical or sexual violence and out these only 10% seek help or raise voice against it.

The highest form of non-sexual violence starts from husband slapping his wife 25% of the women agreed to this, 12% married women agreed that they were pushed and thrown badly. 10% said that husbands pull their arms and hair. 8-7% of the women said they were punched and objects were thrown, kicked, dragged and beaten up. 1.5% were choked or burnt and 0.8% said they were threatened or attacked by guns and sometimes even worse burnt to death.

Marital rape during the pandemic( COVID-19)

While the world is battling against the pandemic, protecting and fighting for a health battle. There are thousands of women facing marital rape and sexual violence. Many of them reported in the social media platform. And more than 3000 times the matters were discussed. The women even during the times are not safe the pandemic has aggravated the issue.

Complaints received by the National Commission for Women received 587 against marital rape and domestic violence (from march 23- April 16). Topping the list Uttar Pradesh, Maharashtra and Delhi with highest number of cases and these are just rough details.

In the year 2018 the Supreme Court ruled out section 377 from the IPC which dealt with unnatural offences . Which is also known as a landmark judgement and history was rewritten, homosexuality no longer a crime. Other landmark judgements like triple talaq Adhaar card case where the Supreme Court of India is creating new cornerstones for the judiciary other hand not criminalising the marital rape is a disappointment. which actually is a serious offence not being considered. Marital rape is as serious as rape or murder because there is a murder of a women's dignity, integrity, her confidence.

Defiles the soul of a helpless female. And violation of her constitutional rights. It is saddening and upsetting that a sensitive issue like marital rape gets dismissed by highest courts saying you are espousing a personal cause and a public cause this is an individual case. Marital rape also violates the major articles of the constitution mentioned above. There has to be some serious action to be taken against this heinous crime and first step towards it is criminalising it.

Award Winning Article is Written By: Ms.Palak Sinha

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Authentication No: SP31049179820-7-920

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