Open Access Research Article
EVIL LURKS IN THE SHADOWS: MARITAL RAPE
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Article Details
EVIL LURKS IN THE SHADOWS: MARITAL
RAPE
AUTHORED BY - PRATYUSHA GHOSH
JINDAL GLOBAL LAW SCHOOL
Abstract
Humans as beings are extremely sociocentric.
We are wired to act a certain way, have certain social values inculcated into
us as a part of a norm and marriage is one of them. Marriage is essentially a
social phenomenon which is a union of two people which is legally recognised
and identifies them as partners or as a wedded couple. With weddings comes the
social evil which is embedded in it called marital rape. Sadly, sexual
atrocities towards women remain deeply entrenched all around the globe. Marital
rape was seen as an oxymoron in the legal books until dramatically late in the
history of legal reforms. To understand marital rape, we must clarify the
definitudes of rape. Rape as specified in the legal books is the unlawful and
non-consensual sexual assault or penetration carried out by a person towards
another. Marital rape in its constituents is sexual assault or rape towards one
spouse by the other spouse.
Introduction
Marital rape has been criminalized in 150
countries, India is among the only 32 countries where marital rape is
decriminalized. The issue of the exception for marital rape in India has
repeatedly been raised, but nothing tangible has been done to address this
injustice. The current BJP-led administration rejected to make marital rape a
crime on the grounds that doing so would undermine the institution of marriage,
as has been brought up more than thrice in the past ten years alone. 11 This
government's justification is irrational and brutal. The exception made for
marital rape violates both Articles 21 and 14, which guarantee equality before
the law and aim to protect married women against marital rape, respectively.
Married women are not given protection under the Constitution in circumstances
of marital rape.
Rape is seen as a heinous crime but marital
rape falls under a grey area until very recently. Instances of marital rape are
significantly associated with higher rates of non-sexual violence and marital
discontent, as well as worse perceptions of marital quality. Marital rape
victims frequently use verbal retaliation as a kind of defence. However, the
majority of spouses who are raped are either unable or scared to fight off
their husbands' advances in sexuality. Victims of marital rape are often left
scarred and suffer from deep rooted psychological problems like Depression,
Anxiety and PTSD which stands for Post Traumatic Stress Disorder.
As per section 375 of the IPC, rape occurs when a man has sex with a
woman against her will. Contrastingly, Section 375 does not classify engaging
in sexual activity with a wife without her consent as rape. According to the
law, a husband cannot be charged with raping an adult wife. Four petitions
questioning the constitutionality of the "marital rape exception"
have been registered with the Delhi High Court. Since the punishment is less
severe, marital rape is only taken into consideration if the victim is under
the age of 15. The spouse has no legal protection after the age of 15, which is
against international human rights standards. Only minors under the age of 15
are shielded from sexual assault by a comparable law that increases the legal
age of consent for marriage to 18.
In accordance with the Indian Penal Code, the offence is punishable by
up to two years in prison, a fine, or both if the wife is between the ages of
12 and 15; if the woman is less than 12, the offence is punishable by up to ten
years in prison and fines. Rape of a legally separated spouse can carry a
sentence of up to two years in prison and a fine, but not rape of a wife over the
age of 15.
The Protection of Women from Domestic Violence Act, passed by Congress
in 2005, recognizes marital rape as a form of domestic violence. A woman can
sue her husband for marital rape under this law through legal division. Marital
rape is irrational because it damages a woman’s affection and trust, leaving
her feeling insecure and afraid. In the sacred place of marriage, he must give
up his human rights. On the other hand, laws protecting the rights of victims
of marital rape are inadequate and ineffective, and the methods employed are
unacceptable.
The Justice Verma Committee's report was ignored by the Central
Government, who recently brought the case back before the Delhi High Court. The
Delhi High Court's two-judge panel that was charged with making the decision
was divided over whether to make marital rape a crime or to maintain the
exception. The head of the two-judge bench, Justice Rajiv Shakdher, said that
the exception for marital rape in Section 375 of the IPC was unconstitutional.
Justice Hari Shankar, however, was of the opinion that the exception should
stay because a modification in the legislation must be made by the legislature.
Literature Review
“MARITAL RAPE, CONSENT AND HUMAN RIGHTS: COMMENT ON
‘CRIMINALIZING SEXUAL VIOLENCE AGAINST WOMEN IN INTIMATE RELATIONSHIPS”
This text explicitly talks for criminalizing marital rape. It is a
pathbreaking piece on institutionalised marriage, rape, human rights and where
they intersect. A state that fails to recognize marital rape is essentially
committing an international human rights violation. A very important
observation, made in the beginning of the text, is how the lack of assertive
consent is not considered in a “marriage”. A woman has to give in to her
husband’s demand of physical intimacy because of certain social and
psychological factors but the scariest part is that in most cases it is a norm
to give in to the husband’s demands. While being pro criminalization of marital
rape the text talks about how it will potentially affect the social construct.
The first point raised was how women's subordination and marital rape are
related. Marital rape occurs inside intricate webs of coercion that are
challenging to comprehend, let alone disentangle. In other words, it is utterly
unclear what causes what. This text focuses on affirmative consent and how an
affirmative consent norm might go a long way toward legitimising all of that
coercion, and if so, it might make the situation worse by making it even more
outside the scope of the law. If we define "rape" as "sex
without affirmative consent," we may end up with a world where there is
much less rape, but only because we have defined "legal sex" to
include a meaningless coerced ritual in which a potential victim mouths a
meaningless utterance, making the sex legal. Alternatively, this definition may
trivialise the issue. An important solution to this is to define rape as
“coerced sex” rather than either non-consensual sex as coerced translates to
consent but forced. Even if such a change in definition would have its own
issues but it could be a major breakthrough in how we view rape and what makes
it both hurtful and gendered. In a world where marital rape is condemned as a
crime but everything else stays the same, it's possible that mandated rituals
will make married sex consensual. But for that consent to have any real value,
it must not just be "affirmative," but also voluntary. And in order
for marital sex to not be forced, the circumstances that force women into
marriages that are not in their best interests must also alter.
This article is a very critical rebuttal to the criminalization of
marital rape in the Indian legal scenario. It opens with the following quote
“Adequate Legal Recourse Against Marital Rape Already Exists”. Many supporters
of keeping the marital rape exception claim that the Protection of Women from
Domestic Violence Act of 2005, Section 498A of the Indian Penal Code, and the
Hindu Marriage Act have filled the void left by the exclusion. Sexual abuse is
included in the definition of domestic violence under the Domestic Violence
Act, which also offers civil remedies like monetary damages, judicial
separation, and protective orders. 47 The Penal Code's Section 498A imposes
criminal penalties on a spouse or any of his family members who cruelly treat a
lady. 48 Furthermore, "cruelty" may be grounds for divorce under
Section 13 of the Hindu Marriage Act. 49
The Domestic Violence Act's immediate drawback is that it only offers
civil remedies and does not categorise marital rape as a criminal violation.
The argument that the concept of marital rape cannot function in India due to
the vast cultural contrasts between the dominant culture in India and the
concept of marriage in the West is at the forefront of the movement against criminalization.
The argument's proponents agree that criminalising marital rape violates the
sacrament of marriage's propriety. Defenders of the marital rape exception
purport that repealing the exception will allow wives to misuse the law and
bring rape charges against their husbands to settle scores in unrelated
quarrels. The argument that illiteracy, poverty and lack of education in India
make the concept of marital rape unworkable in the country directly contradicts
the argument that criminalization of marital rape would lead to misuse.
Analysis
Marital Rape in itself is extremely heinous
and numerous advancements have been made in the same. To put things to
perspective, 31.2% of women have faced marital rape or violence by their
spouse. It is high time laws and reforms are brought into the picture to avoid
this from happening. Historically, there have always been certain defences for
Marital Rape.
Politicians and judges have long argued that
marital rape is not legal and cannot occur as a matter of public policy. The
belief in British common law that the wife's acceptance to the marriage's terms
for all time constitutes the husband's "right to sex". The common law
that the husband's "right to sex" is established by the wife's
unwavering acceptance of the parameters of the marriage for all time. Marital
rape is still not criminalized in India which adds to the issues faced by the
spouse. Another alternative lens to marital rape is the issues faced by men who
are victims of marital rape. They are often considered a minority and not taken
into consideration but they comprise of a considerable section of the society.
One of the most popular defences to criminalization of marital rape is the
filing of false reports by wives against their husbands under the pretext of
rape because of other reasons. One of the most practical ways to tackle this
evil is by the widespread education and dissemination of information regarding
women's equality in social, political and economic institutions as well as
women's bodily autonomy before and after marriage.
Conclusion
Marital Rape has affected a lot of women in India. Though, hard to
eradicate completely, certain steps can be made to reduce it to a great extent.
Helpline numbers, counselling services and screening of women during visits
will go a long way. Education and propagation of the effects of Marital rape
and the punishment met out to offenders might help too. Marital rape has been
criminalized in 150 countries, India is among the only 32 countries where
marital rape is decriminalized. It is high time India identifies the fallacies
and makes an active effort in safeguarding women and their rights after
marriage.
Bibliography
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(2015): 197–201. https://www.jstor.org/stable/27003138.
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Patel, The Gap in Marital Rape Law in India: Advocating for
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Gangoli,
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Article Information
EVIL LURKS IN THE SHADOWS: MARITAL RAPE
Authors: PRATYUSHA GHOSH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/29
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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