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Marital Rape - A Justified Crime In India

According to sacred scriptures God instituted marriage as a pinnacle of creation. Marriage is an institution where the men and women admit themselves to the family life, with a normal and healthy sexual relationship Where the wife expect the love, respect, equality, understanding, faith and trust in a relationship. The union of soul is reduced to the value of - just for lust. And women are still dependents to men by various reasons like in the name of illiteracy, poverty, family, children, tradition, myth and belief. majorly the financial dependency because still education to every girl is a goal in India.

And if the married women grabs the courage to express the rape in marriage there is no law in India to recognize the non consensual rape in the matrimonial relation as marital /spousal rape, because it is merely a domestic violence against the married women triable under Protection Of Women From Domestic Violence Act 2005 Which actually provides a civil remedy to the victim( the wife ).

Or punishable to the extend to the extent of one years imprisonment and the offence is cognisable only when the affected or the relative of her gives information of commission of offence to the officer in charge of the police station. The discussion is further held on following.

Is Marriage A License To Rape In India?

The word 'rape' has been derived from the term 'rapio', which means 'to seize'. It is a forcible seizure or the ravish of women without her consent. The Supreme Court of India has correctly described rape as 'deathless shame and the gravest crime against human dignity'.

And the rape in marriage is one and the same - the only difference is,it is committed by her own protector (the husband ). And according our law, marriage is an absolute license to husband to exploit her to any extend. Because the age-old condition and myth over marriage is still prevailing.. any sexual assault crimes under the preview of marriage is excusable and exceptional. The marital rape exemption can be traced from the statements by Sir Mathew Hale, Chief Justice in England, during the 1600s.

He wrote - 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 herself in kind unto the husband, whom she cannot retract.

This century old submission is still in our penal statue,Indian penal code 1860. In section 375 of IPCs exceptional clause. That is sexual intercourse by a man with his own wife not under the age of 15 years is not a rape. the exception clause give a full liberty and immunity to the lawfully wedded husband to ravish the wife to any extend, though it might affect her dignity and life a whole. Moreover state amendment like Manipur substituted the age of fifteen to the age of thirteen.

The points to be considered is, This exception is absurd and contrary to the same section 375 of IPC s sixth description – if a man commits a rape on a woman with or without her consent when she is below the age of eighteen years is a rape. Secondly this exception encourages the child marriage.

According to Indian law a person below the age of 18 years is a child. Above the age of age of fifteen years in the exceptional clause means and includes a child( below the age of eighteen years ).Thirdly against her will and without her consent is unconsidered in rape in marriage.. This makes condition to the married women that they have 'no right to say no ' to their husband because the belief is that wife has implied consent to have sex with the husband it was considered immaterial whether act is made with or without her consent and will. which is actually humiliated and against the perspective if human rights.

According to law any act which is not penalised is not a crime here the marital rape is an exception to the crime rape.The nationwide urge is still not penalised in Indian law.moreover it is considered as domestic violence under (DVA 2005), and the ACT on prevention of domestic violence is much disappointing to married women because it awards a civil remedy like judicial separation or annulment of marriage to the victim of domestic violence, even to the crime of sexual assault by the husband over the wife is inclusive.

Further it punishes the respondent (not even stated as criminal who committed the sexual assault on her wife) only in the case of breach of protection order by the respondent (includes the husband and the relatives of husband) and to the extent of cruelty under 498 A of IPC,this provision is inserted in IPC with the main objective of protecting the women on demand of dowry, and that too the offence is cognisable only when the aggrieved person or by her relative makes compliant to the officer in charge.

And the act 'cruelty' against women is ground for divorce under Hindu marriage Act 1955. The only safe guard to the married women against the sexual act of her husband is on when the couple were separated by judicial separation, by the court under section 376-B of IPC. This safeguard is not to the women who is in matrimonial relationship. And the statement given by the wife against women is inadmissible according to Indian Evidence Act 1872.

Section 122 ;this section prevents the women from disclosing any communication made by her partner in the course of marriage with an exception that unless a suit between the married person means a proceeding between the married person in family court proceeding (in assault like divorce). or proceeding in which one married person is prosecuted for an offence committed against another not to the crime committed against the partner (the wife). Hence marital is not a crime the evidence is inadmissible.

Constitutional Guarantee And Exceptional Clause of Penal Statute

Constitution the supreme law of land, which reflects the soul of nation. Article 14 and Article 21 of our Constitutional guarantees fundamental rights to the citizen of India under part three. Article 14 says:
  1. Equality before law.
  2. Equal protection of law.
Here the victim (the wife ) is not provided with the equal protection of law, here the exceptional clause of section 375 of Indian Penal code is discriminates the protection between the married and unmarried women and punishment to the stranger and exception to the husband.

This provision violates equal protection of law between the victims, the married and unmarried women and secondly equality before law on penalising the rapist, of stranger and the husband who committed the similar crime. The equals to be treated equally As notable the exceptional clause on marital exemption should be just, fair and reasonable.

Right to life and personal liberty Article 21 enshrined in the Constitution of India, is to protect the dignity of married women too. This Article is interpreted liberally by our Indian judiciary in numerous cases notably in menaka Gandhi case stated Article 21 has become source of all forms of rights to protect one's life and personal liberty. And life is something more than mere animal existence. The exceptional clause of section 375 of IPC is violative of Article 21.

The clause deprives the free will and consent of married women to share her anatomy with the beloved husband. Further it gives absolute freedom to husband to ravishment her any extend as a property in the hands of husband. In addition this Article pave way to rights like the right to privacy, right to bodily self-determination and right to good health.
  1. Right to live with human dignity Supreme Court has rightly pointed out that rape of women violates Human dignity. The term Marital Rape itself shows it is rape, the provision which affects the dignity of married women is violative of Article 21.
  2. Right to sexual privacy, any form of forceful and unwanted sexual intercourse violates the right of privacy. And every women is entitled to her sexual privacy This clause violates her sexual privacy, in the matrimonial relationship.
  3. Right to bodily self-determination where traditionally women were bound to beget children in her family life. In the name of reproduction ( child bearing )women were brutally treated by there husbands. Even the women themselves believe it is fair in family life, her well being and choice of intimation is unfocused This exception is violative of women's rights to bodily self-determination. i.e., consent to sexual intercourse.
  4. Right to good health this is one of the major problem faced by the married women in case of unwanted sexual intercourse with their husband. A forceful sexual intercourse in marriage take away her right to good health as well the possibility of sexually transmitted disease (STD) like HIV / AIDS to the married women from their male partner. Physical as well Gynaecological effects including miscarriage, stillbirths, bladder infections, and infertility.

Justice Verma Committee's Recommendations And The Response of Government

The 172nd Law Commission report, which was passed in March 2000 has considered rape within the bonds of marriage as such a provision may amount to excessive interference with the marital relationship. Further strengthening anti-rape law, Indian government constituted Justice Verma Committee on December 23, 2012 after the Delhi gang rape case. comprising retired Justice J.S. Verma, retired Justice Leila Seth and Solicitor General Gopal Subramanian, has recommended, that the exception for marital rape be removed and the relationship between the accused and the victim is not a valid defence.

But the recommendation of Justice Verma Committee's suggestions on marital rape is unconsidered in Criminal Amendment Act 2013.On March 10th of 2016,the statement given by Women and Child Development Minister Maneka Gandhi in Rajya Sabha on the question whether the government is criminalizing marital rape?

The cabinet minister expressed the word to word copy of the State of Home Affairs Haribhai Parathibhai Chaudhary in Rajya Sabha in April 2015. Thus this is the second time where the central government has regreted on criminalising marital rape using the exact same words:
It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.. This is the reasons given by the people representative on behalf of Indian government.

International Obligation And Recommendation

The international bill of rights for women CEDAW,. an international treaty adopted in 1979 by the United Nations General Assembly, came into force by 3 September 1981 and has been ratified by 189 states,the first international treaty addresses discrimination against women in all Spheres, and to eliminate all forms of discrimination against women. Article 1 of CEDAW Says any discrimination should not be imposed irrespective of their marital status and ARTICLE 2 read with General Recommendation No. 12 (1989) discusses violence against women., and duty of state party to protect women. India is signed the Convention on 30th July 1980 and ratified in 9th July 1993. The state has a obligation to incorporate the Convention and to make appropriate law to its effect According to our Constitution of India.

Article 51 say state to respect international Law and treaty obligations and Article 253 of the Constitution provides Parliament can make law to the whole or to any part of territory of India for implementing any treaty, agreement or convention. On 24th July the CEDAW committee on its fourth and fifth periodic reports of India. The Committee has made a recommendation to implement Justice Verma committee's recommendation to make marital rape a crime, by amending the criminal law.

Judicial Stand on Marital Rape

The role of Indian Judiciary in case of Marital rape is silent. Whereas the Parliament is to make law and judiciary is to interpret. The judicial activism by the judiciary is silent in the matter of the crucial act over the married women:
The marital rape, even the judiciary is of the view that a husband can have forced sex with his wife. The Delhi High Court on February 2015 and The Kerala High Court on October 2015 refused to entertain a PIL challenging a provision section 375 exceptional clause as unconstitutional. Even though there have been massive protests against rape all over the country.

Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape. Further the judgment came from Additional Sessions Judge, Virender Bhat, in October last year stated a controversial statement that:
Girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying later that it was rape.

These cases shows rape in marriage is not an offence, and to be notable- even rape outside marriage will not a rape if the rapist marries the victim,this subject is came arise from Justice Devadass judgement in madras high court bench, he granted bail to the rapist to' mediate' with the victim. Later supreme court judgement ruled that out, as under no circumstances rape case can be compromised. If not the marriage after rape will the remedy to the victim of rape.

Marital Rape Is A Crime In Nation Countries

From 19th century the feminist movement also known as women's liberation movement, began on dated may 1968. This movement has focused on various aspects of women in the society and to remove the dominance of the patriarchal society. The movement spread as three waves in US, Canada, and European countries.

The movement raised voice against the behaviour of men against their wives in forced and coercive sex in the name of marriage, and they also demanded women's right over their body on fertility, consent to marital sexual intercourse, abortion. This Feminist movement made a great impact on world wide countries to protect the women at large, this made numerable countries to make law to protect the individuality of the women and to protect from sexual violence like rape in marriage.

Certain countries like:
  • Albania
  • Algeria,
  • Australia,
  • Belgium,
  • Canada
  • China,
  • Denmark,
  • France
  • Germany
  • Hong Kong
  • Ireland
  • Italy
  • Japan
  • New Zealand
  • Sweden
  • United Kingdom
  • United States and
  • Indonesia
And of about 104 countries, Where marital rape is an offence punishable but India is not one of them. United states criminalised marital rape in 1970's and the case in House of Lords, Lord Keith, said to the Court declared:
Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.

Recently Malaysia in 2007, Turkey in 2005 and Bolivia in 2013. But still about 2.6 million women are in the countries where marital rape not a crime.

The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. And National Family Health Survey on 2005 reported that most of the rape in marriage is unreported because it is domestic violence in Indian law,only about 0.06 % cases were reported to police as marital rape. and in the official report of National Crime Record Bureau data mentioned about 37.2% of women faces sexual violence by their husband. On 2014 study by UNPF and International Centre for Research on Women found that 60 % of men admitted using violence against the partner by kicking, beating, slapping to show their dominance.

The changing society is empowering the women in worldwide. Just because the woman is married it does not men that she lost her dignity and chastity. She is not a property or a chattel in hands of her husband. Rape the heinous crime against the women not only to the unmarried women,it is also the same to the women in matrimonial relation. It should be held immaterial whether the women who is sexually assaulted is married or unmarried and who committed is husband or a stranger.

The absurdity in law is a women can protect her Right to life and personal liberty but not her own body with in the marriage should be focused, that it is violative of our constitutional guarantee. The exception clause should be removed from the Indian Penal Code 1860in light of recommendation of justice verma committee report. And the punishment for Rape under section 376 of IPC should be extended to marital rape also. A new provision marital rape should be created. There should be a judicial awakenings too.

As United Nation rightly pointed out, we require generation of awareness by educating boys and men to view women as valuable partner in life. And now India has adopted 17 goals of UN and looking ahead to achieve the goals of United Nation Development Programme's Sustainable Development Goals (SDGs)- with the agenda of transforming our world by 2030. This goal will be successful only if the crime against women -marital rape is held criminalized. Marital rape should not be still decriminalized just because he is her legally wedded husband. The marital rape is a rape. The love should not hurt...

Award Winning Article Is Written By: Ms.Vaishali.T
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Authentication No: JL118816383088-07-0721

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