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Impunity Of Marital Rape

The current study provides a thorough examination of marital rape, including its legal history as well as numerous facets of perpetration and victimhood. This review focuses on theories and types of marital rape, the magnitude of the problem, risk factors, resistance methods, the psychological and physical impacts of marital rape, and victim-seeking behaviors and solutions.

Historically, marital rape was not considered a criminal conduct, and it was only recently made illegal in all 50 states. Marital rape is a severe cultural problem that affects 10 percent to 14 percent of married women and 40 percent to 50 percent of battered women. Marital rape is associated with significantly greater rates of non-sexual violence and marital discontent, as well as poorer marital satisfaction ratings. Victims of marital rape frequently resort to verbal retaliation.

Most marital rape victims, on the other hand, are either unable or afraid to resist their spouses' sexual violence. Post-traumatic stress disorder (PTSD), depression, gynaecological issues, and bad physical health symptoms are common among victims of marital rape. Victims of marital rape seek assistance from a variety of venues [Indian Penal Code, 1860]. The most effective behaviors for ending marital rape appear to be seeking help from social service agencies and using the law.

Victims of marital rape may benefit from stress inoculation therapy and cognitive processing therapy. The literature on marital rape suffers from significant methodological flaws, and more study is needed to gain a better knowledge of the issue.

Marital rape is one of the most heinous and barbaric crimes that receives little attention. Even in the twenty-first century, it exists as a form of control and authority over women. The Indian legal code, 1860, defines rape and punishes it under Section 376, however the Act fails to protect a married woman from her rapist, who appears to be her husband, by not having any legal provisions that recognize marital rape as a crime.

In the case of a woman who is 15 years old or older, her husband is not required to obtain her agreement. It means that a husband's compelled sexual engagement may be a legal privilege. As a result, marital rape violates Article 21 of the Indian Constitution of 1950. According to the National Family Health Survey, which polled 124,385 women across 29 Indian states, 10% of women said their husband had physically coerced them into a sexual engagement. In a separate survey done in seven Indian states, one-third of the males polled acknowledged to sexually assaulting their wives in some way. This legal failure has highlighted India's patriarchal legal system.

Introduction
Domestic violence, whether done within the four walls of one's house or within the bounds of the family, has always plagued law reformers, not only in the West but also in India. The marital rape exemption clause, which offers the husband entire immunity and the benefit of the doubt, has been questioned and disputed numerous times. In India, the concept of marital rape epitomizes the concept of implied consent.

Despite greater acknowledgment of numerous Penal laws in India, the number of cases of marital rape has risen in the last two to three decades. In India, a special law on marital rape is required, which should also be consistent with international laws on the subject Women have been given the right to fight for their safety, yet her own husband, whom she married in good faith, seeks to torture and harm her by having forcible intercourse without her consent, compromising her health and well-being. In today's world, there is no justification or applicability for the concept of total marital exemption. Any forcible intercourse without the agreement of the spouse is considered rape.

The mental agony of being raped, the trauma of being abused by her own husband, the helplessness of staying silent, and the indelible scars of these episodes are all key elements of marital rape. We believe that people in India are safe from crimes committed on the streets, but don't you believe that some people are also vulnerable to crimes committed in their own homes that go unnoticed?

According to the United Nations Population Fund, over two-thirds of married women in India aged 15 to 50 have been subjected to forced sex, beaten, tortured, and a dowry demand. Many countries have passed anti-marriage rape legislation or eliminated anti-marriage rape exceptions. The Criminalization of marital rape means that it is now considered a human rights violation and a crime.

It is estimated that marital rape is a punished offence in at least 100 countries, however India is not one of them. Many laws and statutes dealing with dowry, cruelty, domestic abuse, and female infanticide have been viewed as acts of violence against women. The legislation had neglected a major breach of any married woman's fundamental rights to freedom, including the right to her body and the right to be protected from any type of abuse.

Married women are not protected from violent crime because of the marital rape exemption. The persistence of marital rape exemptions is due to the mainstream interpretation of equality. It also re-examines differing interpretations of what equal protection means. Marital rape destroys a woman's entire bodily and psychological equilibrium, reducing her to a living corpse.

The most basic concept underlying the rejection of marital rape as any other form of rape is that it occurs within the socially sanctioned sacred institution of marriage. As a result, it is widely understood that accepting a marriage proposal constitutes a woman's lifetime permission to sexual intercourse. Herein lies the fundamental flaw in every social system ever established by mankind.

The lawfully married couple will go through a variety of experiences during their marriage, including social, psychological, and emotional upheavals. However, due to the foresight of legislators during the enactment of anti-rape legislation, it was believed that married women would never object and give up their most fundamental right at the altar of marriage.

The lack of awareness of women's empowerment and low literacy rates, especially in a country like India, are the reasons why marital rape has not been mentioned till now. The perpetuation of social norms that have been hegemonically ruling the feminine brain for hundreds of years is also a major reason why women never treat marital rape as rape.

Women have sought to believe that following the husband's demands and gratifying his sexual cravings is their responsibility as an ideal wife, just as beating and sexually assaulting wives is justified on the grounds of upholding the family hierarchy. The issue of marital rape is similar to the issue of child abuse/child violence from their own parents, which was until recently debated as a domestic family matter that did not require legislation because the parents always have the best interests of the child at heart, even when they engage in violent behavior.

This study seeks to deal with the magnitude of the matter of marital rape within the evolution of mankind and therefore the evolving definitions of fundamental human rights which are becoming asserted around the globe by several interest groups.

Marriage can be defined as the union of two people who have mutual regard for one another. Educating boys and men to see women as valuable participants in life, in the development of society, and in the attainment of peace, according to the United Nations, is just as important as taking legislative actions to defend women's human rights. It is critical to include marital rape in the scope of the law and to educate society beginning in school for this to happen.

The topic of marital rape is largely ignored, and as a result, it requires our attention. Modern Indian leaders who support victims of marital rape agree that this is a sort of rape that occurs under the guise of marital infidelity. It is not a guard to protect against violent acts. Thus, the purpose of this paper is to discuss the idea of "consent" in the context of marital rape and why it needs to be defined under Indian law.

Literature Review
Violence against women is a result of historical power struggles between men and women, which has resulted in men's dominance and discrimination of women, as well as the prevention of women's full advancement, and that violence against women is one of the most important social mechanisms by which women are forced into a subordinate position in comparison to men. It has been properly noted that a country's worth can be determined by the status it accords to women. In India, women are not given the respect they deserve, and their status is not what it should be. Women's violence is on the rise at an alarming rate.

According to the Crime Index for 2015 Mid-Year, India's crime index is 46.82, and according to the National Crime Record Bureau's data, crime against women in 2013 was estimated to be around 52.2. Marriage, also known as matrimony or wedlock, is a socially and legally recognized relationship that creates rights and responsibilities between spouses.

In India, the idea of marriage as a "sacred" institution is diametrically opposed to women's perceptions of reality. The unpleasant truth of crimes like marital rape, violence, and other crimes is hidden under the iron shroud of marriage. In India, marital rape is not considered a crime, hence there are no penalties for it. In recent years, it has become clear that women's status is degrading on a daily basis.
  1. Marital rape is defined as sexual intercourse between a man and a woman who are legally recognized as husband and wife and for which the woman does not give consent. Marriage is an unbreakable relationship that also grants the husband and wife the legal right to consummate their union. Marriage is thought to be incomplete without consummation. At the same time, being a part of this union precludes the guy from forcing sex with his wife. Sexual intercourse must be voluntary rather than obligatory for the wife. The wife should be allowed to decline to have sex and should not be forced to do so by her husband. To comprehend the complexities of marital rape, one must first comprehend the distinction between rape and marital rape, as the two phrases have distinct connotations and should not be used interchangeably. The definition of rape under Section 375 of the Indian law code, 1860, provides that
  2. sexual activity with a lady is rape if it is done against her will or without her agreement.
  3. If the lady's permission is secured through force or the threat of grave bodily harm or death, it is considered rape.
  4. Rape occurs when a guy deceives a woman into believing he is her spouse and engages in sexual activity with her.(v)If a man engages in sexual interaction with a woman who is unable to give consent due to insanity, it may be considered rape.
  5. Sexual behavior with a girl under the age of sixteen is considered rape, even if the girl agreed to the encounter.
  6. Marital rape is classified by researchers into three types: force-only rape, battering rape, and sadistic rape.

Under the following circumstances, women are at a very high risk of being raped by their partners:
  • Women who have been married to domineering males who regard them as "property" Women who are physically abused by their partners
  • Women who are expecting a child
  • Women who are unwell or have recently had surgery
  • Women who are divorced or separated
It's possible that the notion that marital rape is less terrible than other forms of sexual abuse is a fallacy.

There are a variety of physical and emotional effects that can occur as a result of marital rape:
Injuries to the vaginal and anal areas, lacerations, discomfort, bruising, torn muscles, tiredness, and vomiting are some of the physical repercussions.
Broken bones, black eyes, bloody noses, and knife wounds are common among assaulted and raped women.
Vaginal stretching, pelvic inflammation, unplanned pregnancies, miscarriages, stillbirths, bladder infections, sexually transmitted illnesses, HIV, and infertility are among gynaecological effects.

PTSD, anxiety, shock, acute terror, sadness, and suicide idealization are some of the short-term psychological impacts. Disordered sleeping, disordered eating, depression, relationship issues, bad self-images, and sexual dysfunction are all long-term psychological impacts.

The Indian penal code (IPC) section 375 makes rape a criminal offence. It's a broad definition of the word 'rape.' [[Section 375 of the Indian Legal Code, 1860, as revised by the Legal Code Amendment Act, 2013]] In Exception 2, however, the application of this section to sexual activity or sexual acts between a husband and wife is prohibited. As a result, under Indian law, if her spouse rapes her, she has no legal remedy.

The code (Amendment) Act, 2013, changed the wording of section 375 of the IPC to:
375. a person is claimed to have committed "rape" if he -- inserts his penis, to any amount, into The Indian penal code ('IPECAC) makes rape a criminal offence in section 375. It's a broad term that encompasses both sexual activity and other forms of sexual penetration, as long as the circumstances fit into one of the following seven categories.:
  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or an individual in whom she is interested, in fear of death or of hurt.
  4. With her consent, when the person knows that he is not her husband which her consent is given because she believes that he's another man to whom she is or believes herself to be lawfully 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 know the character and consequences of that to which she gives consent.
  6. With or without her consent, when she is under eighteen years aged.
  7. When she is unable to speak consent.
Exception 2 of section 375 of the IPC ('exception clause') doesn't state any reason for the exclusion of sexual activity or sexual acts between a person and his wife from the purview of rape. Because the section's main focus is on consent, it's probable that an irrefutable presumption of consent operates when the victim and hence the perpetrator have a marital relationship.

However, considering the sanctity that married relationships have gained in our society, it's also possible that there was a legislative decision to exclude the operation of this provision from marital couples. This is generally the case since the IPC contains parts that exempt spouses from its application. [[Sections 136, 212, and 216 of the Indian Penal Code, 1860.]] While the law does not prohibit marital rape, it does criminalize a certain type of marital rape, i.e.- non-consensual sexual activity when the wife and husband reside separately on account of order or otherwise.

Section 376B of the IPC states: "section 376B:
sexual activity by husband upon his wife during separation: Whoever has sexual issues together with his own wife, who resides separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be but two years but which can touch seven years, and shall even be susceptible to fine.

Explanation: During this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375".This states that permission is implied under section 375 of the IPC, which isn't the case here because the husband and wife don't appear to be living together.

The presence of the wife boosts the possibility that she has given her approval to the husband's sexuality. This is open to interpretation, and a study of the legislative debates and reports of the Law Commission of India ('Law Commission') on the subject of marital rape can help us comprehend the reasons for the exemption clause in India.

Effects Of Marital Rape

Marital rape has a significant impact on a female; it has long been assumed that if a girl is raped by her boyfriend, she will be less traumatized, but this is a lie. Due to the simple irrefutable fact that the rapist is none other than her spouse, with whom she had anticipated to enjoy a lifetime of bliss, research demonstrates that marital rape has more severe and long-lasting implications for women.

The results of marital rape can be divided into two categories:
  1. Physical effects:
    These include injuries to personal organs, bruises, torn muscles, lacerations, exhaustion, and fractures, among other things. During sexual assault, women who are subjected to physical violence, such as rape, face additional issues such as blacked eyes, broken bones, and wounds inflicted by any type of weapon.

    Due to marital rape, women also face gynaecological issues such as miscarriages, infections, infertility, and the risk of developing other sexually transmitted diseases such as:
    HIV.1.Psychological repercussions:
    A girl's pain can't be described in words when her own husband rapes her repeatedly. The psychological impacts are far worse than the physical symptoms; for example, shock, dread, post-traumatic stress, suicidal impulses, and so on are some of the short-term psychological effects. Eating disorders, depression, and sexual dysfunction are just a few of the long-term consequences.

    Marital rape could be considered a kind of violence in and of itself. Physical abuse, emotional abuse, mental abuse, social abuse, financial abuse, spiritual abuse, and the use of masculine privilege are all examples of harsh and brutal domination. Wives who have been subjected to such abuse may question their own worth or sanity, and have low self-esteem.
  2. Women have traditionally been viewed as the property of their husbands:
    but it is not required to exchange wedding rings for ownership of a lady to be assumed - as anyone who has been raped by boyfriends, fiances, or live-in partners will attest.

India's Marital Rape Laws

Marital rape is defined as any undesired intercourse or penetration gained by force, threat of force, or when the wife is unable to consent, as previously stated.
In India, both real and de jure marital rape exist. Domestic abuse has risen to the top of the list of crimes against women. The National Crime Records Bureau (NCRB) reported nearly 118,000 cases of violence against women in 2013, accounting for a third of all crimes against women, considerably ahead of molestation (70,739) and rape (70,739). (33,707).

Before the adoption of the Abuse Act of 2005, there were only 50,703 registered occurrences of domestic violence in 2003. Sexual violence, which includes rape, is included in the larger category of violence, however rape by husbands within marriages is a murky subject in India, and exact figures are difficult to come by. Sexual crimes against women in India have become a very sensitive topic.

Following the Delhi Gang Rape Case, the Indian government attempted to draught and execute stringent legislation aimed at ensuring the safety of women. Even though it has been classified as a criminal violation, marital rape is yet to be recognized as such. "Equality before the law," says Article 14 of the Indian Constitution. It prohibits the state from discriminating against citizens on any basis, but it discriminates against women when it comes to defining marital rape as a crime.

A married girl under the age of 15 has the right to accuse her husband of marital rape if he forces her to share her gender with him without her consent or will, with the exception of Section 375 of the Indian law code. The question arises as to why this right is restricted after she reaches the age of 15. Being married to a woman for a long time does not provide the male the ability or power to dominate her and satisfy his sexual demands. The article does not provide a reasonable classification for this gender prejudice.

Furthermore, this provision under section 375 of the Indian code is contradictory in and of itself, because the Hindu Marriage Act of 1955, Section 5 (c) (iii), states that a girl must be 18 years old to marry. As a result, the laws in India are in conflict with one other.

"Protection of life and individual liberty," says Article 21 of the Indian Constitution. The article includes the right to measure with personal liberty and dignity, but if a woman is forced to have sexual relations with her husband, the validity of her right to exercise her personal liberty is called into question, and her dignity is harmed. The exception to Section 375 of the Indian legal code infringes on this privilege, which is guaranteed to all or any female.

According to Article 51A (e) of the Indian Constitution, it is the fundamental responsibility of every Indian citizen to abstain from behaviors that are insulting to the dignity of girls.
Although the Indian judiciary's delay in recognizing marital rape as a criminal act may be a mistake, there is an urgent need to outlaw marital rape in India. It infringes on the fundamental rights of girls provided by the Indian Constitution.

The Model For Criminalisation Of Marital Rape

We've concentrated on the need to criminalize marital rape and explained why it's necessary to do so. In this section, we suggest a Criminalization model. We examine it in light of the existing rape portion of the IPC, Section 375. The major goal of this part is to provide a draught legislation that takes into account the difficulties of consent, burden of proof, and evidence.

The J.S. Verma Report is a seminal document that revived the debate about marital rape in recent years. To properly prosecute marital rape, the committee proposed a four-pronged approach. It requested that the exemption clause be removed, that it be expressly stated that it is not a defense, that there be no presumption of agreement, and that the sentence be the same.

In contrast, the 42nd Law Commission Report recommended that marital rape be classified as a separate crime, not called "marriage rape," and be punished differently. In this section, we'll look at the model that we think works best. However, we'll also include our thoughts on the law of proof, because proving marital rape is a huge challenge.

Should We Presume Consent In Cases Of Marital Rape?

The mere fact that a wedding is taking place does not imply consent. In practice, though, the judiciary will undoubtedly check out some level of force to address consent questions. While criminalizing marital rape, there are three ways to handle consent.

The first would be to assume consent and place the burden of proof on the victim to disprove it. The second option is to assume that there is no consent, in which case the accused must prove consent. The third option would be to extend a system designed specifically for cases of marital rape, which could necessitate a reconsideration of existing evidence law standards.

The best option would be to treat permission in the same way we would in other situations. Presuming the existence of consent throughout a marriage is exceedingly tough because rebutting it is nearly impossible given the nature of spousal rape and abuse that occurs within the private limits. When the wife testifies in court that she was raped, there will be a presumption of lack of consent, which will be utilized against the accused. Both of these will be ineffective in evaluating the existence of 'consent' in cases of marital rape in practice.

According to law at the present , there needn't be force wont to indicate lack of consent. Consent is understood on the basis of circumstantial evidence. Producing evidence in a case of marital rape is exceedingly difficult due to the nature of the crime. This is exacerbated by social perceptions of women bringing rape charges as a means of harassing, injuring, or seeking vengeance.

In light of this, we believe there are a few considerations that the court should consider while deciding on cases of marital rape. In addition to the current situation, there is established case law that recognizes that a woman's previous sexual acts are not required to demonstrate the presence of consent. However, this is frequently expressed in terms of the woman's previous sexual relationships with other men. In these instances, however, this ratio can still be used, i.e., regardless of whether the lady has had a previous sexual history with the man.

This is especially important in cases of marital rape, because the woman may have had a consensual relationship with her husband prior to the incident or incidents of non-consensual intercourse, i.e. rape. Expert witness, particularly doctor's testimony, will be important because the mental anguish and hence the psychological stress that the victim is experiencing are frequently established by such evidence. As a result, the prosecution will place a greater emphasis on such evidence. Testimony from relatives who can attest to such incidents will also be quite useful.

Conclusion And Suggestions
Despite the fact that marital rape receives little public, intellectual, or criminal attention, it is one of the most horrific crimes committed in the name of a female. Marital rape has escaped the notice of Indian legislators. In India, rape is defined as voluntary intercourse between a female under the age of sixteen, and it isn't rape merely because a female is married and her husband forcibly has intercourse with her.

The idea of a woman being raped by her husband and the fact that she is unable to seek safety in India due to any rule is distressing. The sacredness of marriage is sullied by marital rape. Marital rape is a form of domestic violence that cannot be justified solely on the basis of consent.

Various jurisdictions throughout the world have either criminalized marital rape or are in the process of recognizing it as a crime, shattering the restraints of traditionalism. In a country like Nepal, where the monarchy was recently overthrown, the supreme court of Nepal has ruled that forced intercourse inside marriage constitutes marital rape. India, regrettably, lags far behind.

A wife who has been raped by her husband is expected not only to remain silent about the abuse, but also to learn how to cope with it and continue living with her husband. The worst part is that the woman will have to live with her rapist, who also happens to be her husband, for the rest of her life. Modifications to the respective matrimonial legal guidelines are required.

Although significant changes to the law on sexual offences are needed, such as making them gender-neutral and eliminating inequities, a complete revision of the law on sexual offences is not recommended. In today's world, modern females must be psychologically structured and conscious of such acts.

Women want to be well-informed about their rights. "If you don't like being a doormat, get off the floor," Al-Anon once stated. Women who have been subjected to such mistreatment must have the courage to speak out against it. Rather than ostracizing females who are subjected to such abuse, society as a whole should stand with them and provide them all of their support.

In today's environment, marital rape may be the most obvious, as rape is legally permissible, negating the need for the female's permission. It is past time for India's judicial system to establish legal standards criminalizing marital rape in order to protect women's rights.

References:
  • https://www.researchgate.net/publication/303910426_MARITAL_RAPE_WHETHER_MARRIAGE_IS_A_LICENSE_TO_RAPE
  • https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
  • https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
  • https://en.wikipedia.org/wiki/Marital_rape
  • https://theprint.in/campus-voice/supreme-court-recognises-sexual-right-of-women-
  • https://www.indiatoday.in/opinion-columns/story/marital-rape-marriage-cannot-mean-irrevocable-implied-consent
  • https://www.lawctopus.com/academike/marital-rape-a-crime-undefined/
  • http://nujslawreview.org/wp-content
  • https://www.sciencedirect.com/topics/medicine-and-dentistry/marital-rape
  • https://www.drishtiias.com/pdf/1608640272-marital-rape-in-india.pdf
  • https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2760&context=ilj

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