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Marital Rape: An overview

Violence against women is not new to our society, a place where a woman is expected to remain silent no matter how hard or how badly she is being treated. Society has created this vague, imaginary idea of an ideal whom. One who listens to what people say, who obliges to every order, who remains quiet and suffers every kind of agony with mainly is physical, emotional, and mental. Thus we can say that we live in a misogynistic society and the time is yet to come where it is going to be an Equalitarian society i.e., a gender-neutral society.

The term Marital Rape not only talks about Rape, but also talks about violation of one's Right to Life, Right to live with Dignity, but also talks about how a relationship like marriage, wherein both husband and wife are expected to live with each other for the rest of their lives, with complete trust on one another can and is broken for a 2minitue pleasure called "SEX".

Our society from the very beginning has been ranting about how a wife is supposed to keep her husband happy to make sure he doesn't go out in search of effecting and if he does go out to find or making other illicit relationships with other women, then our society comes forth to justify the acts of the man by blaming the women for not being able to take care, give the required love, attention, mental, emotional, and especially physical support that a man needs.

But when the same is done by a woman i.e., when she doesn't get the required love, care support mentally, emotionally, and physically, then the very same society calls her names like " Slut, Bitch, Rand, etc" the woman is blamed for not being able to keep her emotions, needs aside and be loyal to her husband. The wife is expected to scarify her mental, emotional, and physical needs aside just to please her husband or a man's ego, because apparently, a woman has to swallow the guilt, embarrassment caused by her husband, but a man's ego is too big to accept one's own mistake.

Today it can be considered as one of the most controversial, debatable topics, issues in countries like India. Our government i.e., our parliament, is dominated by male candidates, our judicial system is also dominated by men, our corporate positions are predominantly filled by men. Women are to date being considered as weak-links, underdogs of the society.

To understand from where does this ideology comes from, we need to go back to our mythological roots, and the main focus is usually on Ramayana. In Ramayana from the very beginning to the very end, it is seen that the main female character Sita from time to time has been asked to give Agnipariksha by her husband Ram to prove her purity, dedication, love for her husband, but we do not get to see at any given point that Ram was asked or had to give the same Agnipariksha to prove his love, purity, dedication towards Sita.

Thus it was already presumed from the very beginning that it was the women who were weak and had to be tested from time to time and the men of the society no matter what would not indulge, cannot be weak in any situation or circumstances in life by our mythology.

This ideology has been entertained, adopted by the people and the same is being followed but this also clearly shows that our society has from the beginning been a male patriarchal society, meaning the men of the society have always been regarded higher than women and they could no possible wrong. Even if both the genders are at fault, the women are made to suffer.

And on the other hand Draupadi the most powerful female mythological character from Mahabharata isn't considered to be a part woman should play. She stood against the wrong done against her or any other person, she fought for her dignity, her pride, she stood for herself against over 100 men, she fought with her husband for, betting her over a game to his cousins like she was his property, a non-living thing which had no emotions, self-esteem, values.

But the character of Draupadi is seen as an arrogant lady, over-ambitious, overachiever, who had led to the destruction of her husband's brothers and her children. But here one thing which isn't understandable is that, was it not her husband who proposed to bet on her for a game with his cousins? was it wrong of her to fight for her pride which her husband was supposed to protect? Was it wrong of her to be embarrassed for the acts done to her in front of an assembly consisting only and only men?

We have created a very wrong conception, ideology about the thought of ideal women. And the same is being taught to every girl child ever born in India from her early childhood days that girls/women are subordinate to boys/men, women and men cannot be equal, women cannot work alongside men, shall always listen to what a man says, listen to her husband even if he is wrong, oblige to everything asked by her husband, never say NO to her husband, etc.

Marital Rape:
When a husband lures his wife into consenting to sex and on her refusal, denial forces him over her consent, and commits the act, it is said to be a Marital Rape. No matter how long they have been married to each other, if a wife hasn't consented or wishes to have sex with her partner, her wish has to be obliged, but in today's scenario husbands choose to torture their wives, mentally, emotionally, and physically to any possible extent, just to get what they want.

Marital Rape isn't new to our society; every wife at some point of time in her life was a victim or fell prey to it. A marital relationship is based on trust and this trust is broken by lustful feelings of a husband over his wife's consent, dignity, and faith in him that he would do no wrong to her, hurt or harm her in any way.

In various cultures Marital Rape is not considered, as a sexual relationship between a married husband and wife isn't something abnormal, this is said to be an impossible phenomenon. Marriage is said to revolve in and around sexual intercourse, which is presented to all as a forbidden fruit that one only gets to experience after being legally married to their better half.

Once a couple ties their Knot it is assumed that the husband owns his wife, he has a right over her more than herself, gets the right to have intercourse with her anytime he wishes to, even if she isn't consenting to it. And on the refusal by wife, husband by hook or by crook torches her mentally, emotionally, and physically and if that doesn't work either, then he will force her into the sexual intercourse of his like.

Types/ ways of Marital Rape:
  1. Beating Blue & Black:
    The husband hits his wife on her refusal to consent for sexual intercourse, which he claims to be his right as her lawfully wedded husband. It goes to an extent where she goes unconscious, after which he exploits her dignity without her knowledge and she only realizes it when she gains her consciousness.
  2. Physical force:
    The husband forces his wife into having sexual intercourse when she is conscious, sound-minded. He physically torches her which not only affects her mentally but also takes an emotional and physical toll on her later.
  3. Verbal:
    It can also be verbal i.e., the husband abuses his wife commenting on her physical appearance, abusing her family for her appearance, etc., which also causes long-term mental trauma.
  4. Blackmail:
    The husband blackmails his wife regarding the humiliation of her family, in front of her colleagues, in-laws, hurt children's, case embarrassment in front of friends, harm her family, etc.
  5. Emotional:
    The husband abuses, torches his wife to an extent wherein she is so emotionally drained, she cannot think straight, and he takes advantage of the same, to commit his acts.

Psychology of the Victim and the Accused:
Psychology of the Victim:
  1. Extreme Case:
    The woman doesn't react, is numb, dull, anxious all the time, scared of getting hurt, fear of touch can get OCD i.e., Obsessive Cleaning Disorder, disoriented, constant and sudden mental breakdown, etc.,
  2. Mentally Traumatized:
    Will keep having anxiety, panic attacks, heart problems, breathing problems, cannot trust people, have a doll behavior, cannot sleep in peace, etc.,
  3. Depressed:
    Loss of appetite, lack of concentration, delusion, panic, dullness, don't respond to being called, don't recognize, loss of memory, etc.,
  4. Physical Trauma:
    Might have internal damage, bleeds, external wounds, cuts, burses, marks of being hit, burnt, etc.,
  5. Emotional Trauma:
    Fail to express one's emotions, laugh, cry, breakdown suddenly any time anywhere, constant fear of being hurt, getting hurt, etc.,
  6. Trust Issues:
    It comes tough for the woman who has suffered so much to trust anyone after such a tormenting experience, she cannot talk to anyone like she would usually interact with, will be scared of being touched, have a relationship, getting married again will be very difficult for her.

Psychology of Accused:
  1. Childhood Trauma:
    If a child has seen her mother being harassed, humiliated by his father, if a child was abused, humiliated, harassed by his family, relatives, etc., it creates, sets an idea that this is how a woman is supposed to be treated, a man is superior to woman and can do whatever he wants, and she needs to be subordinate to him, failing which he has the power to harass her and make her act as per his whims and fancies.
  2. Lack of Empathy:
    He will not understand the pain, the feelings of his wife, he will only know how to get what he has wanted to get and nothing else matters to him.
  3. Feeling Hostile towards women:
    He sees a woman as an object, property, that can be owned, used as and when required, and can be kept aside when not required. They do not consider women as living beings, with a right to life, the right to live with dignity, etc., this makes them feel more like a man with power. This showcases what toxic masculinity looks like.
  4. Schizophrenia:
    In this condition, a person's ability to think, understand and behave properly is compromised. This means the person suffering from this psychological issue will not be able to keep a straight mind all the time with regards to anything let that be relationships, family, environment, etc., he will not be able to make a sound decision about anything in his life, he will keep hurting everyone around him, close to him and this is a disease which has no cure.

Almost 231 countries have recognized Marital Rape as a Crime and only 36 countries have failed to recognize the same some of countries are India, China, Afghanistan, Malaysia, Nigeria, Egypt, Tajikistan, Myanmar, Yemen, Kuwait, Oman, etc.,

Marital Rape is an infringement of Fundamental Rights under Article 21- Right to Life & Dignity, wherein its states that No person shall be deprived of his life or personal liberty, except according to the procedure established by law. Here the right of the wife to refuse sexual intercourse with her husband should stand against the will, force of her husband's lust, will of having intercourse.

Section 375 of the Indian Penal Code defines Rape as a man is said to commit rape when he has intercourse with a woman without her consent, by undue influence, coercion, blackmail, by drugging her i.e., intoxicating her, of she is a minor i.e., under 16yrs of age. This section comes with an exception with regards to Marital Rape stating that a man having sexual intercourse with his wife doesn't amount to rape unless his wife is below 15yrs of age.

This again violates Fundamental Rights under Article 14 that is the Right to Equality, wherein every person irrespective of their gender has a right to be treated equally with its opposite gender. The above-said exception is discriminating against married women. They have no right to protect themselves from the cruel acts committed by their husbands, which is a great failure of our Indian Constitution though being the largest, lengthiest in the world.

Marital Rape does exist and the same is being recognized by various courts but at the same time there is no punishment, provisions for the same to protect the dignity of married women in India in various judgments like Nimeshbhai Bharathbhai Desai vs the State of Gujarat, the Supreme Court held that, as per the current laws, a wife cannot file or initiate proceedings against her husband for Marital Rape. The husband cannot be charged for Marital Rape, even if the wife is forced against her will to have sexual intercourse.

Though Section 376 states the punishment for Rape, but it doesn't cover Marital Rape due to an exception. Section 377 deals with unnatural intercourse but it doesn't cover bestiality, brutality against the wife. But the Hon'ble Court with Mr. Justice J.B Pardiwala did recognize the need, necessity of abolition of the exception under Section 375, as it is discriminatory towards the woman and especially married women. The bench acknowledged that the requirement of Marital Rape laws has been rising and it is high time when the government starts focusing on this on a priority basis.

Though the Right to Privacy has been recognized by the Hon'ble Courts i.e., a woman's right to sexual privacy as a Fundamental Right, and forced, coerced sexual intercourse would be a violation of one's Right to Life, Right to Live with Dignity and Right to Privacy, yet there is no law as of now to protect the integrity of married women from being raped day after day by their husbands. Just because they are married the rights of women to consent for sexual intercourse are considered to have been revoked forever. This affects a woman mentally, emotionally, and physically to an extent where she is unable to recover from the trauma as she is forced to live the same life for the rest of her being.

The Hon'ble Kerala High Court recognized Marital Rape as a valid ground to seek Divorce on 30th July 2021. it recognized the Right to protect one's own dignity, Physical and mental integrity and any violation, disrespect to the same is a punishable offense. It is the right of the woman who has married a man to refuse or consent to sexual intercourse and if the decision of the woman isn't accepted by the man and if he force's her into having intercourse, he is violating her Right to life and Personal Liberty. A husband cannot make his wife suffer for his pleasure, and violate his wife's dignity. The individuals are free to perform conceptual sexual intercourse. Thus the court allowed the petition filed by the wife for divorce on grounds of cruelty and dismissed the petition filed for Restitution of Conjugal Rights.

Section 9 of Hindu Marriage Act, 1955 defines Restitution of Conjugal Rights, wherein either husband or wife without substantive reason withdraws from the society of another, this is a legal ground for divorce, which is time and again misused by the husband whose wife leaves the marital home tired of the harassments, both mental and physical cruelty, just so he can take her back home and continue to harass and violate her dignity, integrity and her rights as an individual .

The United Nations Convention on Elimination of all forms of Discrimination Against Women has recognized Marital Rape as a Criminalized offence i.e., it is a serious crime that infringes the Rights, Dignity of married women around the world and India was one of the signatories at this Convention. The 42nd Law Commission that was headed by Justice Verma has submitted a report pressing upon the importance, urgency to criminalize Marital Rape as the only relief made available to married women is the Domestic Violence Act, 2005. The Parliament has failed to acknowledge the same till date.

There is going to be a constant spike in cases with regards to Marital Rape and it is high time the government both at the center and state level recognizes this issue, the urgency, and necessity for laws to be enforced, enacted to protect the rights and dignity of a married woman. The need for Marital Rape laws is was never this bad. Irrespective of being married, unmarried, girl child, strong laws are required to eradicate the social evil called RAPE from the country. And the Judiciary, who is appointed protector of Fundamental Rights by the Constitution of India, needs to do its part in protecting and saving millions of women of the nation.

End Notes:
  1. Indian Constitution
  2. Indian Penal Code
  3. Case law: Indian Kanoon
  4. Hindu Marriage Act, 1955
Written By: Mohini Ghose, Student Of LLM Corporate And Commercial At Amity University, Mumbai

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