ON WHAT GROUNDS MARITAL RAPE SHOULD BE CRIMINALIZED BY - HARDIK GUPTA, ROOJHAL JAIN & SHEETAL BHADORIA
ON WHAT GROUNDS MARITAL RAPE SHOULD BE CRIMINALIZED
AUTHORED BY
- HARDIK GUPTA,
ROOJHAL
JAIN & SHEETAL BHADORIA
MARITAL RAPE
Abstract
This paper presents a comparative
analysis of the legal framework surrounding marital rape in India. Marriage is
a connection between two families; it establishes the rights and obligations
between them, but in the case of Marital rape is a heinous and widespread type
of domestic abuse. Rape is committed by the person to whom the victim is
married, and the victim suffered emotional, physical, and psychological trauma.
Societal stigma has viewed marriage as a contract, and if there is forceful
sexual intercourse between couples, it doesn't mean it is violent sexual
intercourse; they define that the wife has to fulfill the husband's desires.
From a legal point of view, marital rape is a broad issue and has been a
complex journey. In India, marital rape is not considered a criminal offense.
It is because the wife gives implied consent while entering a married relationship.
Marital rape is not only a concern related to women's rights, but it also
violates several constitutional provisions simultaneously, and India is the 7th
largest country in the world. Due to the complexities of marital rape,
heterogeneous strategies must consider its fundamental causes and
repercussions. Some factors include comprehensive education and awareness
campaigns. This paper contributes to a broader understanding of how cultural,
legal, and social contexts shape the response to an issue that intersects with
gender dynamics, human rights, and justice. The comparative analysis highlights
the ongoing efforts to bridge gaps in legislation and advocacy, ultimately
striving for a world where marital relationships are built on consent, respect,
and equality.
Key words: India, Marital Rape, Violence
against women, Legal Background, forceful sex
INTRODUCTION
“Her friends used to tell her, it
wasn’t rape if the man was her husband. She didn’t say anything, but inside, she seethed. She
wanted to take a knife to their faces.” – F.H Batacan
Section 375 of the Indian Penal Code
{IPC}, defines rape; it defines that rape is an unlawful activity that says
that when there is forceful sexual intercourse with a woman without her consent,
it falls under the definition of Rape - Section 375 of the Indian Penal Code.
Marital rape, the non-consensual
sexual act perpetrated by one spouse against the other within the confines of
marriage, is a mental torture where the woman is unable to give her consent,
and it’s a distressing violation of personal bodily autonomy and human rights
as well. In many cases, it has been witnessed that the idea of a husband
forcing himself on his wife was considered a private matter inside the confines
of marriage and was not recognized as illegal or a violation of the wife's
rights. This intricate issue has attracted considerable attention worldwide,
prompting discussions and legal reforms to address the complex interplay
between marital relations, gender dynamics, and legal frameworks. Regarding the
situation in India, marital rape has always been in the limelight. Section 375
of the IPC protects women and intends to punish those who violate them, and
marital rape is in direct conflict with Section 375. So basically, this whole
paper would be guiding the readers through those grounds that highlight the
fact that we should criminalize Marital rape, as unmarried woman and married
woman, both have the same rights, and marital rape is the one of the most
heinous violations of a woman's integrity. It’s a crime against humanity as a
whole.
LITERATURE
& REVIEW
1.
Marital Rape:
A Comprehensive Analysis: Shivani Singh
Based on the summary of
this article:
This article brings out
the fact that marriage is not a license to rape one’s spouse; a woman is no
one’s property, regardless of whether she is married or unmarried. In our
society, women are taught that adjustments are necessary in marriage. Even when
things are tough, women should adjust and not fight or go against their
husbands. Even the times have changed. Even now, many women are adjusting to
their marriages. Some consider marriage as a responsibility, just because there
exists a mutual relation between the families or because they have a child, and
some, due to helplessness, having nowhere to go, and also because the wife’s families
refuse to accept them as their own’s after marriage. Converting the survey,
Crime Victim Research and Treatment Centre published the report that 31% of Indian
women who were raped, develop PTSD, and 1.3 million females have rape-induced
PTSD. It was put forward through the crucial researches, and found that their
children had witnessed marital rape at least once. We have progressed in many
arenas, but spousal rape is not yet considered a crime in India.
2.
Criminalization of Marital Rape Law in India is still a Taboo - Deeptilata Nayak
This article covers all
reviews and legal perspectives of Marital Rape in India and the United States.
It states that three kinds of marital Rape are identified as per the legal
scholars. Generally, it prevents society's violation of abuse (women frequently
face abuse in their relationship and abuse during sexual violence or rape by a
violent husband, forcing the wife to have sex against his will). Rape only by
force (Generally assaults occur after the woman has refused sexual intercourse)
Obsessive Rape (The woman being subjected to sadistic or obsessive rape, which
involves physical violence and torture). In India, in the year 2005, according
to the survey, more than 6500 women were murdered by their husbands or by their
husbands' families, and 2/3rd of the married women between 15 and 50 years old,
were beaten up and forced into sexual intercourse. In the United States,
marital rape became much more criminalized in 2006.
3.
Marital Rape:
A Heinous Crime: Times of India
This article was
published on July 18, 2023 and it highlights subject of marital rape affecting
over 30% of married women. The Indian Penal Code (IPC) defines spouse rape as
an act of coerced sexual contact without consent, and it is punishable under
Section 375. Marriage should not give males the right to control or commit
crimes, as rape has many negative effects on mental health and can have serious
medical repercussions. Although it is difficult to prove innocence and there is
a chance that the legislation may be abused, the case against criminalizing
marital rape still stands. Since there are no recognized grounds for divorce in cases of marital
rape, appropriate rules and regulations are essential. The Constitution should design
stronger remedies for such victims and provide justice to set an example for the
future generations; thus this issue needs to be addressed in the right way,
without any further ado.
RESEARCH PROBLEM: -
What are the grounds on which marital
rape should be criminalized in India?
HYPOTHESIS:
The people of India think
it is a women’s duty to take pain because of societal pressure and to keep
families together. Thus, in this
research paper, we will go through the societal views on marital rape,
psychological factors, legal frameworks, gender roles all working together as
factors influencing marital rape.
METHODOLOGY:
·
Data
collection method that has been used in this paper basically is from research
paper, journals, Times of India newspaper.
·
Specifically
has been focused on circumstances that women face in marital rape, why it’s
that much important to criminalize
marital rape.
DATA ANALYSIS:
The Indian Penal Code's
lengthy and complex definition of rape, Section 375, comes down to the idea
that it is a violent, penetrating sexual assault carried out without the
victim's consent. In most countries marital rape considers as crime not only
the domestic violence India is among the country in which marital rape is not
an offence. In India women considered as goddess but statistics data prove this
opposite according to the report from National Crime Records Bureau states that
majority of cases of crimes against women under Indian penal code were
registered under Cruelty by husband or
his relatives. Marital rape violates the rights of a woman under Article 21 of
Indian Constitution right to live with dignity forms a part of the right to
life.Marital rape should be criminalized as per various factors we can say that
CONSENT if there is a relation between unmarried couple or husband and
spouse consent is very important aspect of sexual intercourse and
Criminalization marital rape highlights the idea of consent that must be given
freely. BODILY AUTONOMY every individual have the right to control their body criminalizing marital rape endorse that no one
subjected to sexual act against their will. HEALTH survivors of marital
rape can face serious physical and psychological effects. Making it a crime
encourages victims to get medical and psychological help, which grows their
general well-being and reduces the risks to their long-term health
connected with such trauma. Some reasons for low rates of prosecution marital
rape due to the societal pressure many woman didn’t file the case against
husband and low legal awareness, lengthy process of court settlements sometimes
lack of evidence. Section 375 exception II talks about non-consensual sexual
intercourse by the husband with his wife, if the wife is under the age of 15
years, then only intercourse praise as rape. Mean if the wife is over the age
of 15 year than it would not be rape[1] now Indian law affords husband and wife
separate legal identities, concerned with the protection of woman. it is high
time that the legislature should take cognisance of this legal
infirmity and bring marital rape within the purview of rape laws
by eliminating Section 375 (Exception 2) of IPC.[2]
Thus, by criminalizing marital rape is not only a legal imperative but a vital
step forward creating more equitable society it upholds human rights and
promotes gender equality, Ultimately it sends a powerful message to society
that marital rape would not be tolerated every survivors have the legal right
to raise a legal action.
CONCLUSION
Criminalizing marital rape is to
protect the values for consent, autonomy in our bodies, and respect for human
beings. It reiterates that no one must be exposed to sexual misconduct with no
freely given and ongoing consent, regardless of their marriage status. This
idea is the foundation of individual freedom and mutual respect in close
relationships. Countries that already criminalized marital rape Poland,
Australia, UK and there are 36 Nation that have not made marital rape as a
crime. Thus, to achieve gender equality it is essential to make a marital rape
is a crime also, criminalization provides opportunities to justice as well as
assistance for survivors. It gives victims the confidence to speak up, pursue
legal action, and get the help they need to recover. As a result, those who
survived are no longer required to suffer in silence, which benefits their
overall health and serves the interests of justice. Thus, the people of
India think it is the women’s duty to take pain because of societal pressure
and to keep the family together. The governments alone cannot be faulted for
this horrific legislative and societal oversight as they are simply a
reflection our male dominated cultures, oversights that will continue to occur
for as long as we chose to maintain the status quo. Marital rape has more
consequences than are visible on the surface level which further violates the
sense of safety and freedoms we associate with the such democracies. Rape is
the main concern in the Indian legal system moreover many womans facing MARITAL
RAPE to protect them judiciary must take initiatives married women should
not be assaulted and treated as properly.
At last I would like to say “Rape
is rape it should be penalized and Marital rape is not about sex it is
considers as violence, marrying someone doesn’t mean we consented for sexual
intercourse”
[1] https://www.legalserviceindia.com/legal/article-958-whether-the-exception-ii-of-sec-375-of-ipc-1860-constitutionally-valid-or-not.html#:~:text=And%20this%20exception%20of%20section,it%20would%20not%20be%20rape.
Exception of section 375 of IPC / Accessed on
28.09.2023