Open Access Research Article
HUMAN RIGHTS OF A MARRIED WOMAN IN THE CASE OF MARITAL RAPE IN INDIA BY: SAKSHI LALWANI, DEVANSHI AGARWAL
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Article Details
“HUMAN RIGHTS OF A MARRIED WOMAN IN THE CASE OF MARITAL RAPE IN
INDIA”
AUTHORED BY:
SAKSHI LALWANI, DEVANSHI AGARWAL
COLLEGE: NMIMS,
Kirit P. Mehta School of Law
ABSTRACT
This
comprehensive study offers an in-depth exploration of marital rape,
encompassing its legal foundations and the multifaceted aspects of both
perpetration and victimization. Despite the recognition of rape within criminal
law in India, the critical issue of marital rape remains unrecognized as a
criminal offense. Instead, it has often been treated as an exception or
defended as non-criminal conduct. Over the past few decades, there has been a
growing advocacy movement seeking recognition for marital rape as a crime, yet
progress beyond heightened awareness has been limited. The study focuses on the
fundamental human rights implications surrounding marital rape, a pressing
societal concern that profoundly impacts all married women. The researchers
specifically delve into the complex legal jurisprudence concerning the
criminalization of marital rape, aiming to unravel its implications and address
this significant social challenge.
INTRODUCTION
Sati Pratha,
child marriage, forced
marriage, the Devdasi
system, the Purdah
system, and other
social evils have all existed in India since the beginning of time.
While many of these social evils have
faded away over time, some are still very much in place and continue to cause problems for India. Marital rape is one of
these societal evils; it has been practiced in India from ancient times
and is still common there
now. That is one such severe societal
ailment that has persisted throughout India's history
and is now a common occurrence there. The threat of marital rape is likewise met with a degree of indifference by
Indian culture and the Indian legislation. On the other hand, as is clear from its numerous historic
rulings, the Indian court is not
so much apathetic towards the atrocity of marital rape as it is supportive of
its eradication from the nation. In
India, there is no legal prohibition on marital rape, unlike in most other countries around the world, where it is
considered a crime.3. There are no laws in India that effectively address
the problem of marital rape.
All that is
involved in marital rape is rape. Apart from the fact that the husband is the
only person who can commit marital
rape, there aren't many differences between the two. Marital rape occurs when a husband
engages in non-consensual sexual activity with his spouse.
Marital rape also occurs
when a wife engages in non-consensual sexual activity with her husband. Therefore, although marital rape is a
gender-neutral offence, the husband is often the one who commits the crime rather than the wife. While it is not
unusual for a wife to rape her husband, there
are extremely few documented cases of this happening worldwide. Undoubtedly,
having sexual relations throughout a
marriage is essential, but rape during a marriage is wholly opposed
to the idea of marriage.
RESEARCH
OBJECTIVES
1.
To examine existing laws and policies pertaining to
marital rape in India, legal loopholes, and the effectiveness of legal
protections for married women against rape by their spouses
2.
To assess the need for legal and policy reforms
concerning marital rape, evaluating the gaps in existing laws, the
implementation challenges, and potential solutions for enhancing legal
protections and support mechanisms for victims
3.
To investigate the physical and mental health
consequences of marital rape on women, analysing the long-term effects on their
well-being, including trauma, reproductive health issues, and implications for
their overall quality of life.
RESEARCH METHODOLOGY AND DESIGN
1.
Secondary
Research:
Secondary
Research was conducted by the researchers to understand the legal background of
the stance of Marital Rape in India by examining case laws, statutes, and
scholarly discussions.
2.
Ethical
Analysis:
Ethical
analysis was conducted by reviewing philosophical and ethical principles
underpinning the denial of criminalisation of Marital rape. This involves an
in- depth exploration of legal and ethical theories supporting or challenging
the state's stance.
3.
Historical
and Cultural Exploration:
Investigated
the historical and cultural factors influencing the movement in India. This
includes examining legal traditions, cultural norms, and historical events that
have shaped policies related to rape.
THE MARITAL RAPE EXCEPTION
One common argument used to maintain the non-criminalization of marital rape against women
above the age of 15 is that entering into a marriage
implies implicit agreement. Implicit consent has its roots in the legal framework left
over from the British occupation of India. In order to comprehend the genesis
of the argument, a historical, retroactive viewpoint is necessary. In his seminal
dissertation, English jurist and
judge Sir Matthew Hale said in 1736:
"The wife has given
herself up to her husband
in this way by their
mutual matrimonial consent
and contract, which she cannot
retract, so the husband cannot be guilty
of a rape committed by himself upon his lawful wife.”
With this in mind, it is clear that
the wife is seen as her husband's property. The common law notion of coverture was justified in 1753
by English jurist Sir William Blackstone, which is another historical reason why marital rape is not recognised as
a crime.38 In doing so, Sir William Blackstone said that:
“Upon marriage, a husband and wife
become one legal person. This means that the woman's legal existence is suspended or at least combined[1] with
her husband's during
the marriage, and she
performs all of her tasks under his protection, cover, and wing. This period of
time during which she is
married is known as her coverture.”
Therefore, it may be said that the
decision in India to keep rape inside marriage legal was influenced by these historical precedents. Thus, if marital
rape is not made illegal,
the husband is protected from prosecution and cannot
be held accountable for raping his wife in India. Therefore, the marital rape exemption incorporates immunity for
marital rape, a common law notion.
It is crucial to note that several
jurisdictions have removed the immunity for marital rape, as was shown in Independent Thought v. Union
of India[2]. In addition, the House of Lords
noted in England and Wales
in 1991 that since Hale articulated his conception of marriage, opinions towards wives have evolved (as
demonstrated in the opening paragraph of this section).[3] The
idea that a woman is only a "subservient chattel of the
husband" has been superseded by the modern
perspective, which holds that marriage should be viewed as an equal
partnership. In this instance,
it was also observed that the European
Commission of Human Rights declared
in its Report on C.R.
against the United Kingdom that the fact that a rape has occurred does not alter,
notwithstanding the nature of the relationship between
the perpetrator and the victim.
On the other hand, it is evident
that the Indian
legal system upholds
the belief that implicit consent
after the dissolution of a marriage in order to defend the continuation
of the marital rape exemption. This
implies that a woman forfeits her autonomy over her body the moment she marries, with the understanding being that
she should be at the man's disposal for his need for "closeness."
2.
Cultural Relativism
The argument in favour of keeping
marital rape legal in India is that there are significant cultural differences between India and the
rest of the world, and as a result, the concept of marital rape is not applicable there. This is because the rest
of the world and India have very different
views on marriage. This is supported by the claim that marriage is a sacrament,
as well as by morals, social norms,
and religious beliefs. These factors, along with India's low level of education, illiteracy, and
growing percentage of poverty, create an environment that makes it inappropriate to criminalise
marital rape. The argument's proponents contend that making marital rape illegal violates the sacrament of marriage's
intimate nature. The general consensus is that family
issues can be resolved inside
the family and that criminalising marital rape will
have an impact on the family system as a whole. It should be noted that public statements made by ministers
are one source of these arguments. When "high-ranking" individuals who have the power to affect
Indian society and the legal system express their opinions in public, the Indian populace is free to accept and
share these viewpoints without challenging them or developing their own opinions.
Overall, it is clear that those who
support keeping marital rape legalised believe that it should be viewed through
the lens of cultural relativism.[4] This
viewpoint implies that culture shouldn't be evaluated based on the standards of other nations
concerning what is "considered" normal or
abnormal, right or wrong. Rather,
the goal is to view the nation
under examination from "its own cultural context." This means that one should
view India's perspective on marriage and its connection to marital rape from an Indian perspective rather than one based on what the outside world
believes marriage "should"
be.
The
Supreme Court has rejected the notion that criminalising marital
rape destroys the institution
of marriage because it is a cultural value that should be viewed as a
sacrament. The Supreme Court held in
Independent Thought v. Union of India[5] that as marriage is inherently personal, the institution of marriage
cannot be destroyed by making marital rape a crime. Furthermore, the Supreme Court made clear that, just as there is
a belief that neither divorce nor
formal separation undermines the institution of marriage, there is also a
chance that the idea of marital rape
does the same. Furthermore, in Nimeshbhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court[6] noted that the institution of
marriage is destroyed by the occurrence
of marital rape, explaining that non-consensual sexual activity in a marriage damages confidence and trust. Thus, it can be concluded that the courts
in these two case studies
do not hold the opinion that making marital rape illegal will undermine
the institution of marriage.
3.
Not
common in India
Proponents of keeping marital
rape non-criminalized argue that since it is uncommon in India, there
is no need to enact laws against it.
Four
more points of view can be used to clarify
the claim that marital rape is rare in India. First off, according to a 2011 study conducted
by the International Centre for Research on Women, one in five Indian men who participated in the poll acknowledged
pressuring their spouse to engage in sexual activity. It's interesting to note that 57% of the Indian
males asked in the same
study indicated that men require sex more than women do. Furthermore,
according to 58% of the Indian
males surveyed, guys do not talk about
sex. Consequently, it may be concluded from this
that men's perspectives on sex naturally dominate. Second, according to a 2014
poll conducted by the International
Centre for Research on Women, approximately 33% of Indian males asked admitted to having exposed their wives to abuse of any kind, with 16% of those respondents saying this included
sexual violence. Thirdly, in 2014, the Committee on the Elimination of Discrimination Against Women (CEDAW)
presented its Concluding observations of India.[7] The CEDAW Committee expressed
concern about violent crimes against
women, particularly rape cases, which have increased by 902.1 percent since
1971, according to the National Crime
Records Bureau, and the continued impunity for these acts. The CEDAW Committee expressed particular
concerns on the continuation of the exception
for marital rape.
Fourth, according to 83% of Indian women
surveyed in the 2015–16 Ministry
of Health and Family Welfare's National Family Health Survey (NFHS–4),
their present husbands have sexually
abused them. Six percent of the Indian women surveyed reported that they
had experienced physical
coercion to engage
in sexual activity
against their will from their husbands.
This was the most common form of sexual violence. In addition, 4% of the Indian women surveyed claimed
that their husband
coerced them into having sex without their consent by using threats or other means.
Furthermore, three percent of the Indian women surveyed claimed that their husbands had coerced them into engaging in
further sexual actions against their
will. Given these viewpoints, it is therefore reasonable to wonder how those
who want keeping marital
rape legal could
possibly claim that such crimes
are uncommon in India.
4.
Misuse of the Law
Advocates for the continuation of the law's non-criminalization of marital rape contend that its repeal
would allow a woman to take advantage of the situation and use it as an excuse to accuse her husband of rape in order to settle unrelated disputes. The claim
that women abuse the legal
system has been applied against
a number of legislation designed
to shield Indian
women from domestic abuse, including Section 498A
of the IPC and the PWDVA, which makes it illegal for a husband
or his family to intentionally inflict mental or bodily harm on their spouse. In the
Arnesh
Kumar v. State of Bihar case, for instance, the Supreme Court ruled that,
rather than being a shield, Section
498A IPC is instead employed
as a weapon by angry spouses. Nonetheless, a trend is apparent, namely
that the advocates of this line of reasoning have been unable to verify their statements with empirical evidence
on a consistent basis.
The claim that laws enacted to
protect women are abused by them wanes when statistics are presented, such as the fact that just 14% of cases under Section 498A IPC in 2012 resulted in convictions.[8] It
is noteworthy to emphasise that poor conviction rates are frequently associated with improperly carried out investigations, with testimonies being withheld, and with improperly gathered evidence. The idea
that women exploit the legal system ignores the fact that stigma, accessibility issues, and a lack of resources make
it difficult for women to even obtain
justice under the law. In addition to being drawn out and challenging, the
legal process for a woman to
initiate a complaint against her husband is also embarrassing and frequently involves seeking remedies that are hard to
obtain. When a woman files a police report, she frequently encounters insensitive and invasive situations, and
court rulings demonstrate the animosity against
a woman who files a claim against
her spouse. A woman is frequently asked
to drop her complaint after filing a case with the police. It might also
be said that there is probably a distinction
between calling the police and reporting to them what your husband exposes you to at home as a woman vs
taking part in a study. A woman may be brave enough to share her story in a study, where she may encounter
resistance from others who would otherwise
tell her what to believe and feel. However, as one example shows, a woman's trustworthiness appears to be called into question when she files a police
complaint against her spouse.
The claim that poverty, illiteracy,
and a lack of education allow women to abuse the legal system is in conflict with the punishment of marital rape. The main point of this is that women are not necessarily equipped to abuse the law if they are not well-educated or do not have access
to all the resources necessary to use it against them. Given the
numerous obstacles a woman must
overcome in order to file a police complaint against her husband, it is very
uncommon for a married woman to be able to influence the Indian judicial system in her favour.
A.
The Indian Penal Code, The Hindu
Marriage Act and the Protection of Women from Domestic Violence Act
Supporters of keeping marital
rape non-criminalized contend
that other national
legal frameworks address the
legal hazard brought about by the marital rape exception. These include, for instance, the Hindu Marriage
Act (HMA), the PWDVA, and Sections 376B and 498A
of the IPC. If a husband subjects his wife to rape when they are in a legal
separation, it is punishable under
Section 376B IPC; if a husband or one of his relatives subjects the wife to cruelty, it is punishable under Section
498A IPC. Section 13 HMA states that "cruelty" is a legitimate justification for divorce.[9] The
PWDVA's definition of domestic violence
acknowledges that sexual abuse falls under its purview. The PWDVA
provides victims of sexual domestic
violence with civil remedies, including
protection orders and monetary compensation.
To
refute the logic presented here, the PWDVA only covers
civil remedies, however
it protects women who have experienced sexual abuse
in their marriages. It is pertinent to note that Section 122 of the Indian Evidence Act (IEA) stipulates that
information concerning one spouse may only be shared with the other during a marriage if one of them is accused of a crime against the other. Given that the PWDVA only provides civil remedies for married women who are sexually abused by their husbands, disclosing the spouse's information can be crucial
to the exposed women's ability to obtain the right remedies. However, this "possible" chance
is denied because Section 122 of the IEA forbids
doing so. Although the PWDVA and the HMA give
vulnerable married women the opportunity to leave a violent and
hazardous situation, none of the
laws have any provisions to stop men from engaging in these violent behaviours.
When a marriage is dissolved due to
cruelty, the man has the chance to marry another woman and subject
her to the same violent
deeds, sending her to the same destiny
as the lady who managed to flee. This suggests that a
man's ability to subject his new bride to marital rape in his subsequent marriage is
unrestricted.
B. The Indian Penal Code and the Protection of Human Rights Act
It's interesting to note that,
technically speaking, there is no need to consider the full range of Indian national laws because, with regard to the marital
rape exception, which keeps a husband accountable for "less" serious
crimes against his wife, it is already
contradictory and inconsistent in the IPC. According to the IPC, a husband
may be held accountable for offences like sexual harassment and the penalties
associated with it, assault or use of force against a woman with the intent to undress, stalking, voyeurism, assault of
a woman with the intent to violate
her modesty, punishment for intentionally causing grievous harm, and
intentionally causing harm with dangerous
weapons or means. Claiming that marital rape cannot be recognised as a crime in India
is illogical since
all these highlighted crimes are deemed
criminal both inside and
outside of marriage relationships. Moreover, it is inconsistent with the PHRA to keep the marital rape exemption in the
IPC. According to the PHRA, the Constitution
protects human rights such as the right to equality, liberty, and life.
The Supreme Court ruled in
Independent Thought v. Union of India[10] that a husband who forces his
child-wife to have sex against her
will or without her consent violates her human right to liberty or her dignity under the PHRA, which is protected by the Constitution. It is important
to emphasize, nevertheless, that the PHRA seeks to
protect everyone, not just child house wives. It follows that it seems sensible to claim that the legislation likewise intends to safeguard married
women who are considered
"adults." A similar argument can be made with the PWDVA.[11] It is incompatible with the rights that are safeguarded by this
national legal document to maintain the
marital rape exemption, even if it is evident that it causes bodily and
emotional harm to women.
C. The Constitution
Married women are unable to exercise
their constitutionally guaranteed human rights because of the exception for marital rape. More precisely, it pertains
to a violation of, among other things: Article
21, which protects
the right to life and personal liberty;
Article 15, which
forbids discrimination based solely on sex; and Article 14, which is an
equal protection provision that ensures equality before and of the law.
Since the
IPC 1860 was established, rape laws have changed; this thesis clarified three
of those changes. All three of them have in common that their establishment has
been impacted by three rulings rendered by Indian courts. Namely the cases:
1. Tukharam vs State of
Maharashtra
After
the Indian Supreme Court's ruling in the Thukaram v. State of Maharashtra (Mathura case), social protests were held,
and the Criminal Law (Amendment) Act 1983 (Amendment Act 1983) was passed as a result of the social pressure
for modifications to the
country's rape laws.[12]
The Amendment Act of 1983 served as the tipping
point for the amendment of Sections 375 and 376 IPC, the latter of which specifies
the penalty for rape. Thus, the waves of change
in rape legislation began with this Amendment.
A
modification brought about by the Amendment Act of 1983 is that rape and sexual relations committed by officials while
they are on duty are now deemed to be severe
forms of rape and a minimum penalty was instituted.[13]
Because the prosecution's and victim's evidence
was rejected in the Matura
case, Section 114A of the Indian Evidence
Act, 1872 (IEA) was established, shifting the burden of proof to the
accused. A law pertaining to marital
rape that was included in the Amendment Act of 1983 states that it is unlawful for a man to coerce his
spouse into engaging in sexual activity when the couple lives apart as a result of tradition or court order. In
this context, it should be noted that forced sexual
relations—also known as marital rape—that
do not result from a court order separating the parties are
not considered crimes. Thus, even though India
decided not to recognise marital
rape as a criminal offence,
the Amendment Act of 1983 allowed
for a wave of expansion and enhanced protection for women who had been raped.
2. State Through Reference vs Ram Singh &
Ors.
The
Delhi gangrape case, State Through Reference vs. Ram Singh & Ors., sparked
a public outcry that eventually prompted changes to Indian rape laws,
culminating in the Criminal Law (Amendment) Act 2013 (Amendment Act 2013).
The
atrocity against the girl in the case sparked nationwide demonstrations and the formation of the Verma Committee (Verma
Committee) in honour of the late J.S. Verma,
the former chief justice of India. The Verma Committee was tasked with proposing amendments and improvements to
the legislation pertaining to rape and sexual
violence. Eliminating the exception for marital rape was one of the Verma Committee's recommendations. The recommendation is based on the idea that a spouse should not be immune from rape because of
his marital status; hence, the victim's relationship with the
offender is irrelevant.
The
2013 Amendment Act brought about a number of modifications to Indian rape legislation. The definition of rape under Section 375 IPC has been expanded
to include any type of penetration into a woman's
or girl's bodily parts. Rape used to only refer to a man's penis being penetrated through
the vagina. The inability of the woman to provide her consent is also a reason for rape, according to the seventh
addendum. It can be said that despite
the Amendment Act 2013 bringing
about modifications to the IPC, the
Verma Committee's suggestion to eliminate the marital rape provision was not followed. Therefore, unless there is a
formal separation or the woman is under 15, a
male cannot be penalised
for rape committed within the marriage.
3. Independent Thought vs Union
of India
The Criminal
Law (Amendment) Act 2018[14] is the most recent wave of changes
to the Indian rape laws. The Supreme Court's 2017 ruling in
Independent Thought v. Union of India[15] was a key
element in this shift.
A
non-governmental organisation called Independent Thought filed a lawsuit in the public interest to defend child wives
against rape in marriage. This is because the
marital rape exception only shields
wives who are raped by their husbands
and are under
the age of fifteen. Two judges in this case, Madan B. Lokur and Deepak Gupta, reasoned that child-wives between
the ages of 15 and 17 should not be covered under the marital rape exception. The exception, according to the
Supreme Court, makes a distinction
between married and single girls, which the court intended to be both arbitrary and discriminatory. In light of
this, the Supreme Court supported its decision
to raise the age restriction for the marital
rape exception from 15 to 18 years
old in this ruling. In this
case, the Supreme Court ruled that making a distinction between an unmarried female and a married girl is
incompatible with the Indian Constitution, particularly Articles
15(3) and 21. It was also mentioned that the right to equal
protection under the law is guaranteed under Article 14 of the Constitution. In addition, the Supreme Court notes that a husband
forcing his child-wife to engage in sexual activity is incompatible with the Constitution and the Protection of Human Rights
Act, 1993 (PHRA)[16],
which both recognise dignity and liberty as guaranteed rights. The Supreme Court also stressed that a woman
has the right to self-determination with regard
to her own body. The Supreme Court went on to note that there are contradictions in the law, as married males can face charges for less serious
sexual offences but not for heinous
rape crimes. Less serious offences for which a male may face legal action include
voyeurism, abuse or use of criminal force against a woman with the purpose
of disrobing; intent
to affront her modesty; and stalking. There are no exclusions for these less serious crimes, regardless of
whether they take place during a marriage or not. Contrary to rape, which is seen as a more serious sexual offence
despite the existence of the marital
rape exception. Section 3 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) also provides
protection for women who are victims of less serious
crimes. Ultimately, when seen from a global
standpoint, the Supreme
Court made it clear that India is bound by laws, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[17].
Thus,
it can be said that Section 376 IPC, for instance, had modifications as a
result of the Amendment
Act 2018. The marital rape exception, however,
has remained unchanged
despite the Supreme
Court's comment that rape is a sexual
offence of a more serious
kind and that the exception
creates a discriminatory distinction between married
and unmarried girl children. This indicates that India has decided to keep the exception
in the law without making any changes. The case of Independent Thought v. Union
of India[18]
is regarded as a seminal ruling, demonstrating the Supreme Court's desire to safeguard
married female children
between the ages of 15 and 17 from marital
rape, as demonstrated in the paragraph
above. One concern
that might arise is if this would force the judicial system
to consider whether
married women of all ages can be shielded from marital rape.
Married
women's human rights in cases of marital rape require a multipronged strategy
that includes social, legal, and cultural reforms. The following are some ideas
and advice to think about:
1. Legal
Reform and Enforcement- Encourage legislative changes that would make marital rape a crime and close legal
gaps that shield spouses from prosecution for rape in many states.
Provide sensitive and unbiased training
to judges, law enforcement officers,
and legal professionals to guarantee the successful implementation of legislation that criminalise marital
rape.
2. Awareness
and Education- Organise extensive education campaigns with the goals of dispelling myths, changing
public perceptions of marital rape, and confronting attitudes that support
or ignore this type of abuse. Incorporate comprehensive sex education
programs that prioritise consent, respect, and limits in intimate relationships in schools and communities.
3. Empowerment
and Advocacy- Educate women on their rights in marriage by informing them of their legal safeguards, available resources for assistance,
and channels for pursuing legal action in the event of marital rape. By supporting and elevating the
voices of survivors via advocacy initiatives, we may encourage
movements and platforms led by survivors
to share their stories and call for change.
4. Intersectional
Approaches- Acknowledge and confront the intersectional character of marital
rape by taking into account
the ways in which experiences of marital rape are influenced
by racial/ethnic background, socioeconomic level,
sexual orientation, and disability. Create
solutions that address
the particular requirements of disadvantaged populations.
5. Engagement of Stakeholders- Work together with local and religious authorities to dispel harmful customs and
beliefs that support marital rape and advance
gender equality and respect in partnerships. Engage governmental and non-governmental organisations in the creation
and execution of policies and
initiatives targeted at successfully preventing and treating marital
rape.
A
comprehensive and coordinated strategy including legislative changes, social
transformation, support services, and empowerment programs is needed to address
marital rape within the context of human rights. These components are meant to
foster a culture of equality, respect, and dignity in married partnerships.
CONCLUSION
It is clear that India wants to protect
and advance women's rights by passing national legislation and joining
international human rights treaties (both general and particular). However,
because of the marital rape exception, there is a legal loophole concerning
married women's rights within marriages. The notion that a husband owns a
woman's libido stems from patriarchal social standards, which are the
foundation of the marital rape exception. This is because a woman implicitly
consents to sexual relations with her spouse when they tie the knot.
The Indian state wishes to protect
and keep apart the marriage institution from outside influence, which is why the exception for marital rape has
been kept in place. By reading ministerial remarks, for instance, presents a firm opinion that rape cannot
occur within a marriage and,
even if it did, legislation would be unfeasible because of issues like poverty, illiteracy, and the
possibility of married women abusing the legal system. The Indian legal system requires
hierarchical communication in order to change something as deeply ingrained
as marital rape. This involves
government representatives
taking a stand and legislators being willing to consider alternative viewpoints, such as classifying marital rape as a crime. The married
woman is deprived
of the opportunity to experience the same human rights as the single
woman since marriage is viewed as an
institution that is superior to her human rights. It is artificial to classify women according to their marital
status, and this cannot be used to determine whether or not rape should be considered
a crime. Regardless of a woman's marital status,
rape laws should be in place to define the offense, provide the appropriate punishment, and safeguard her rights.
One
cannot help but wonder why an Indian marriage is so different
from other marriages around the world that it can
be justifiable to declare the marriage to be in a lawless area by giving a man legal immunity when he rapes his
wife. Since neither the IPC, the
HMA, nor the PWDVA allows a raped married woman to file a police complaint accusing her husband of rape,
the logic that a married woman has access to
other laws to seek justice when she is subjected to rape by her husband
can be questioned. Since marital rape
is not considered a crime, the victim of the crime may choose to pursue a civil law remedy or demonstrate that she has
been the victim of another, less serious sexual
crime. Additionally, the lady finds herself at a dead end
because Section 122 IEA forbids her from releasing information as long as her
spouse is not accused of a crime
against her. In addition, since spouses can be prosecuted for less serious sexual offences, keeping the
exemption for marital rape is illogical and conflicting
with the IPC itself. It is likewise unclear how the legislator can continue to argue
that the spousal
rape exception is unroutable in light of its clear conflicts with the UDHR,
ICCPR, PHRA, CEDAW,
Constitution, and ICESCR,
among other illustrative articles. The purpose
of legislation is to protect
people's rights; but, as the conventional patriarchal perception of a married
woman within marriage takes precedence, as a
married woman, you do not have the right to enjoy fundamental human
rights when you are raped
by your husband.
Despite the legislature's
unwillingness to acknowledge it as a crime, marital rape is clearly an issue in India. The case of
Nimeshbhai Bharatbhai Desai v. State of Gujarat provides support for this issue since the High Court noted
that a sizable portion of married women
are burdened by the non-criminalization of marital rape. Thus, the unwillingness to make marital rape a crime
seems to be a political problem rooted in a
patriarchal viewpoint that sees the woman as the husband's subordinate
partner in the marriage. The conservative facets of society
are adamant that the marital
rape exception cannot be eliminated, despite waves of
modifications to the law, examples of violent
rape cases, and the Verma Committee's suggestion to do away
with it.
In conclusion, it can be said that
India must take legal action in order to acknowledge that married women are entitled to the entirety of their human
rights. However, since India, as an example,
has the legal capacity to demand change,
this is not an insurmountable task. As the issue is clearly multifaceted, it is impossible to fully assess
what India needs
to do to address it at this time. However,
eliminating the exception for marital rape and making it a crime would be a significant first step.
REFERENCES
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& M. Gupta, Marital Rape: Current Legal Framework in India and the Need for
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[10]
Supra Note 2.
[11] Supra Note 1
[12] Supra Note 6.
[13] Supra Note 6.
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Article Information
HUMAN RIGHTS OF A MARRIED WOMAN IN THE CASE OF MARITAL RAPE IN INDIA BY: SAKSHI LALWANI, DEVANSHI AGARWAL
Authors: SAKSHI LALWANI, DEVANSHI AGARWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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