Marital Rape: An Unaddressed Stigma (BY-Sushmita Bharti)
Marital
Rape: An Unaddressed Stigma
Authored By- Sushmita Bharti
B.A.LLB
Sai Nath University
Abstract
As
per data published by the National Family Health Survey 2015-2016 which
receives technical guidance from the Ministry of Health and Family Welfare,
Government of India, 83% of married women between the ages of 15 to 49 have
suffered sexual abuse by their husbands. The hard truth that emerges from this
figure is that a large number of crimes against women in India takes place in
their respective homes. The issue of marital rape in India is one example of
violence against women where the victim suffers both physically and
psychologically at the hands of somebody close to them. But unfortunately,
marital rape is not recognised as a crime under the Indian law.
Introduction
Nowadays,
we all get antiquated by what we watch in movies or on television. Movies are
the part of our life. We learn dance, how to romance and how to impress our
love interest through movies. Always shown in a bad taste was the hero of the
movies pursuit a girl irregardless her turning down the advances of the male
protagonist. This message has misguided a lot of youth and especially those who
have the eligibility of being called as one side lovers. This mindset and
perception carry over even when a boy becomes a husband and opinions and
aspiration of his wife in bed is also of no or little significance.
But
this misguidance was tarnished by Amitabh Bacchan in the year 2016 when he
showed us the meaning of No in the movie ‘Pink’. In the movie, stated that when
a woman says No, she means so and one should stop the time.
In
old days there was nothing known as martial rapes, people were not aware of it.
The
mindset thata husband can’t be charged with the rape of his wife was described
by Sir Matthew Hale (1609-1676) in history of the pleas of the crown, published
after his death in 1736, where he wrote that “The husband can’t be guilty of a
rape committed by himself upon his lawful wife, for by their mutual consent and
contract the wife hath given up herself during this kind unto her husband,
which she cannot retract.”
Rape
Rape,
unlawful sexual activity, it happened without consent. It is a form of sexual
violence and serious crime that carries the same maximum sentence as murder.
In
England and Wales, the legal definition of rape is when someone intentionally
penetrates the vagina, anus or mouth of another person with their penis,
without the other person’s consent.
The
voices of survivors advocates, law enforcement personnel and many others that
FBI director Robert Mueller was able to make this important change within the
FBI’s uniform crime report summary reporting system as “the carnal knowledge of
a female, forcibly and against her will.” That definition, unchanged since
1927, was outdated and narrow. It only included forcible male penile
penetration of a female vagina. The new definition is “The penetration, no
matter how slight, of the vagina or anus with any body part or object, or oral
penetration by a sex organ of another person, without the consent of the
victim.” For the first time ever, the new definition includes any gender of victim
and perpetror, not just women being raped by men.`
Effects
of Rape
I.
3
times more likely to suffer from depression
II.
6
times more likely to suffer from post traumatic stress disorder
III.
13
times more likely to abuse alcohol
IV.
26
times more likely to abuse drugs
V.
4
times more likely to contemplate suicide
Marital
Rape
Marital
Rape is a very complex. The term marital when pre-fixed with “rape” serves to
sanctify the crime and does not evoke the kind of saction legal as well as
social. Under Indian laws husband have been granted exemption from criminal
liability from charges of raping one’s wife who is above eighteen years of age.
Rape whether within or outside the institution of marriage is the worst
violation of any woman’s human right that defines her body as well as her soul.
The idea of rape in marriage is dished out by the typical Indian cinema could
also be a myth and is opposing to women’s perceptions of reality. Though
marital rape is that the commonest and discrepant sort of masochism in Indian
society. It’s hidden behind the ideological barrier of marriage. Social
practices and legal codes in India mutually enforce the denial of women’s
sexual agency and bodily integrity, which lie at the guts of women’s human
rights.
The
law doesn’t treat marital rape as a criminal offense. The system must be forced
to simply accept rape within marriage as a criminal offense. The difficulty of
penalty remains lost during a cloud of legal uncertainty. Further, women
themselves must break away from societal shackles and fight for justice.
Types of
Marital Rape
Marital
rape is often classified into three types:
I.
Battering
Rape: This takes in both bodily and sexual violence. Most marital rape victims
experience this category of rape.
II.
Force
only rape: Husbands exercise the minimum amount of force needed to coerce his
wife.
III.
Compulsive
or obsessive rape: Torture and or vicious sexual acts occur and are mostly
physically violent.
Physical
and psychological effects of marital rape
I.
The
physical effects of marital rape nay include injuries to non-public organs,
laceration, soreness, brusing, torn muscles, fatigue, and vomiting.
II.
Women
who are battered and raped by their husbands may suffer other physical
consequences including broken bones, black eyes, bloody noses, and knife wounds
that occur during the sexual violence.
III.
Specific
gynaecological consequences of marital rape include miscarriages, still births,
bladder infections, infertility, and the potential contraction of sexuality
transmitted diseases including HIV.
IV.
Women
who are raped by their partners are likely to suffer severe psychological
consequences also.
V.
Psychological
effects are likely to be long lasting. Ex- trusting relationships, disordered
eating, depression, sleep problems and increased negative feeling
Constitutional
Safeguard Against Marital Rape
Not
only is the Indian constitution a safeguard against all the wrongs for the
Indian citizens, but it also clearly demarcates what’s right from what’s wrong.
Along with rights, it also crowns upon its citizens the responsibility that go
hand in hand with it. Each citizen has a responsibility towards the state and
its fellow citizens.
Under
article 14,15,19 and 21 of the constitution of India us to ensure equality of
women and freedom from all forms of discrimination.
Article
14 Equal Protection: Article 14 of the Indian constitution guarantees every
citizen equality before the law. Two valid essentials:
·
It
must have rational nexus with the object it seeks to achieve,
·
The
criteria for classification must be based on intelligible differentia.
The
object of section 375 is the protection of every woman against violation of
their bodily integrity, dignity and privacy.
Though
married women can approach the court under section 376 of IPC in case of rape
by a stranger, they have no legal recourse in the case of rape by husband.
Article
21 Right to life and personal liberty: Article 21 guarantees every individual
the right to life and personal liberty. It has been profoundly interpreted by
the judiciary from time to time making it more comprehensive and inclusive,
including a cluster of other essential rights such as the right to bodily
self-determination, right to sexual privacy and right to health, among many
things, which are all grossly violated by the exception provided in section375.
Right To
Dignity
The
Supreme Court has labelled the offence of rape as an act of “deathless shame
and the gravest crime against.”
In
the case of a married women, does not visualize rape as a crime against women’s
dignity but as a crime against women’s her husband’s dignity. This is because a
stranger can be punished for violating a ‘married woman’s dignity’. But when
the same woman is subjected to rape by her husband, it will not amount to the
violation of her right to live with human dignity.
Right To
Sexual Privacy
The
right to make a reproductive choice is personal liberty guaranteed under
article 21 of the Indian constitution. That a woman should not be treated as a
commodity having no bodily autonomy or no right of her own to deny sexual
intercourse with her husband.
Right
to good health
Health
is another compelling reason to advocate for the removal of the marital rape
exemption clause.
Majority
of nations in the world have criminalized all forms of rape but, India along
with 35 other nations such as Pakistan, Afghanistan, Iran, Saudi Arabia, Yemen
etc. continues to provide marital rape exemption. The reason is that India has many gender
specific laws that favour women and there is a threat of such laws being
misused by disgruntled wives against their husband.The exceptions of marital
rape provided in section375 is a reflection of prejudice andcenturies of
discrimination, subjugation and objectification faced by women at the hands of
the patriarchal society.
Status Of
Safeguard For Women In Indian Society
We
live in a world where goddesses are worshipped and women get tamed, peddle,
abused, raped and kidnapped every single day.
The
Protection of Women against Domestic Violence act, 2005, aims to “provide for
more effective protection of the rights of women, guaranteed under the
constitution, who are victims of violence of any kind occurring within the
family.”
Rights
an Indian woman holds in India:
I.
Women
have a right to zero FIR: an FIR that can be filed at any police station
categorical of the location where the phenomena occurred or a specific
jurisdiction it comes under, the Zero FIR can later be moved to the police
station in whose jurisdiction the case falls under.
II.
Right
against being stalked: section 354D of the Indian Penal Code makes way for
legal action to be taken against an offender if he/she follows a woman,
irregardless a clear gesture of apathy; or monitor the use by a woman of the
internet, email or any other form of electronic communication.
III.
Right
to register virtual complaints: the law gives women the provision for filing
virtual grievance via e-mail, or writing her grievance and sending it to police
station from a registered postal address.
IV.
Right
not to be arrested at night: unless there is an extravagant case on the orders
of a first class magistrate, a woman cannot be arrested after sunset and before
sunrise.
V.
Right
to get free legal aid: under the legal services authorities act, female rape
victims have the right to get free legal aid or help from the legal services
authority who has to arrange a lawyer for her.
VI.
Right
against domestic violence: section 498 of the Indian Constitution looks to
safeguard a wife, female live in partner or a woman living in a family like a
mother or a sister from domestic violence by the hands of a husband, male live
in partner.
VII.
Right
against workplace harassment: the Sexual Harassment of women at Workplace act
gives a female the right to file a grievance against any kind of sexual
harassment at her place of work.
VIII.
Right
to dignity and decency: in an incident that the accused is a woman, any medical
examination process on her must be performed by or in the visitation of another
women.
IX.
Right
to equal pay: according to the provision listed under the Equal Remuneration
Act, one cannot be discriminated on the basis of sex when it comes to salary,
pay or wages.
After
the Independence, the educational rights of women were promoted and they were
made aware of the value of education. The ratio of women pursuing higher
studies and taking education improved gradually since then. The government give
various benefits to women such as loan facilities, scholarship, etc. who wished
to go out to pursue higher education.
Segregate
schools and colleges have been established for women alone. Segregate
universities have
been
also which are among the decent universities today and admits the girls
obtaining merit ranks.
·
The
Constitution ensure that no discrimination shall be made against any person on
the basis of class, caste, sex, creed, race and place of birth [Article 15(1)]
·
Article
243D(3) One-third reservation of women in the panchayats
·
Article
243D(4) One-third reservation for women in the presidential posts of the
panchayats
·
Article
243(T)3 One-third reservation in Municipalities
·
One-third
reservation for women in the presidential posts of Town Municipalities
·
Article
42 maternity benefits to women
·
Article
16 providing employment opportunities
Conclusion
It is concluded that changing the law on sexual
offenses may be a knotty and sentient task, and more so, during a country like
India, where there’s a synchronous visitation of a varied. There’s a
requirement for substantial changes within the law on sexual offenses. Women’s
status in Indian society has primordially change since Independence. Government
after realising the situations of women and their worse position in the society
took giant goal to bring about a change and improve the social, economic and
political conditions of women. In India, still a gradual change has been
experienced by the women over these years.
" The day will come when man will recognize woman
as his peer, not only at the fireside, but in councils of the nation. Then, and
not until then, will there be the perfect comradeship, the ideal union between
the sexes that shall result in the highest development of the race."
Rape is rape. Be it date rape, stranger rape or
marital rape.