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Criminalization Of Marital Rape

Introduction

According to the dictionary, rape is defined as “a crime in which sexual intercourse is committed without consent, through force, threats, or fearful intimidation”. If having non-consensual sexual intercourse with an unmarried woman is considered to be rape then why do the rules change when it is a married woman? Consent is important irrespective of the individual’s marital status. A rape is a rape and the rapist should be punished no matter who it is, be it the victim’s husband, a stranger, member of her family, etc. Marital rape is one amongst the different types of rape. It literally means, “spousal-rape” or “partner-rape” between a couple where one partner does not consent to the act.

Marital rape is still not recognized as a criminal offence in India and the law still remains uncertain regarding the same. This is mainly because the idea of “consent” stays null and void when the rapist and the victim are married, thus the society feels with marriage comes the concept of consent automatically. The general conception is that the husband can encroach on the dignity and self-esteem of his wife and nobody can question him since they are married in the eyes of the law.

According to Section 375 in the Indian Penal Code, sexual intercourse by a man with his own wife (the wife not being under 16 years of age), is not rape. This law is truly disheartening and denies a woman’s bodily rights, privacy and sexual agency. This exception present in Section 375 encourages husbands to take advantage of their wife’s body since they won’t be held liable in the eyes of Indian law. It is not fair for a horrendous act like rape to be hidden behind the covers of just the marital status of the individuals.

There are about thirty-six countries who have not criminalised marital rape and India is one of them. This shows India’s inclination towards a misogynistic and patriarchal system of life that has been embedded in Indian society for multiple generations now. One of the major reasons behind the non-criminalization of marital rape in India is because of the stereotype that a woman’s only job is to provide and ensure progenies with or without consent so that the family line continues. Women were treated like slaves like in the case of Sati which was prevalent in society for a long time. Its high time that society realises that marital rape is destructive not only for the woman’s dignity but also to the institution of marriage. In the case of Bodhisattwa Gautam v. Subhra Chakraborty, Justice Ahmad said that “marital rape is a cruel act, in turn, destroys the entire psychology of a woman and pushes her into deep emotional crisis”.

Marital Rape Laws In India

Under Section 375 of the IPC, there is an exception when it comes to marital rape. The punishments awarded to husbands under the marital rape laws are as follows:

  1. When the victim (wife) is a minor (12-15 years of age), the husband can be imprisoned for up to 2 years. There can also be a fine in these cases or both imprisonment and fine.
  2. When the victim is below the age of 12, the husband can be imprisoned for up to 7 years or sometimes can also be given a life sentence with a huge amount of fine as well.
  3. When the husband and wife are separated in the eyes of law, there can be imprisonment of up to 2 years and also a fine.
  4. When the wife is above the age of 15, it is not crime and thus there won’t be any punishment.

From the above, we see that the court does not award same punishments for all kinds of rape which is unfair and biased as there are certain exceptions and conditions which the victim has to satisfy like age, marital status, judicial separation, etc,. When every rape leaves a major impact on psychological, physical and mental health of the victim, it is dishonourable for the victim to lose her legal protection and basic human rights when she is sexually assaulted by her husband.

Article 14 And Article 21 Of the Indian Constitution

The decriminalization of marital rape in India also disregards and goes against two very important laws.

Article 14: Article 14 of Indian Constitution talks about the Right to Equality before the law. This states that there should be an equal protection for everyone in India. So, when a woman is denied her bodily rights and goes to court for the same, she does not achieve her deserved justice just because of her marital status. The exception with regard to marital rape in Section 375 of the IPC, violates Article 14 of the Indian Constitution. It is only right for a married woman to get the same equal rights a single, unmarried woman gets. In fact, it is more painful for a married woman as she has to live with her rapist in the same house her whole life. There should be no biasness when it comes to rape and marital rape as they are both similar and there is no difference. Henceforth, marital rape not being recognized and criminalised by the law is a clear violation of Article 14 of the Indian Constitution.

Article 21: Article 21 of the Indian Constitution states that “No person shall be deprived of his/her life or personal liberty except according to a procedure established by the law”. There are other laws that come under the same Article, some of them being, right to health, right to safe environment, right to sexual privacy, etc. When we talk about the right to a dignified life which is a part of Article 21, marital rape violates that law because when a man rapes a woman, she faces a serious blow to her self-esteem as well as her dignity. It acts as a root cause of multiple psychological problems. Since marital rape challenges the wife’s dignity, it is a defiance of the right to dignity. The next law that comes under Article 21 is the right to sexual privacy. Every person in the country is entitled to have his/her own sexual autonomy. Consent plays a major role when we talk about sexual privacy. Even if it is in the case of a married woman, she should have the freedom and basic human right to only engage in sexual activity if she consents to it. She cannot be forced against her will even if it is her own husband.

Thus, this act does not comply with the right to sexual privacy. Right to bodily integrity is another part of Article 21. This claims that a woman should decide who she wants to have sexual intercourse with or if she wants to have it at all. Nobody can force her. Therefore, we can say that the concept of marriage cannot create an exception and that rape even if it’s marital rape, breaches and violates the right to bodily integrity. From the above arguments, it is evident that marital rape is unconstitutional and disobeys Article 21 of the Indian Constitution.

Article 14 and Article 21 are two important Articles that give the people of the society their basic human rights and thus any act violating these two should be a crime and the right punishments must be given for the same without any exceptions.

Main Reasons Behind Non-criminalization of Marital Rape In India

General notion that “WITH MARRIAGE COMES CONSENT”

Due to the conventional stereotypes and patriarchy existing in the society, people feel that when two individuals get married, they come into a contract. The contract essentially implies that the legal union in turn means that anything that happens in the due course of the marriage is consensual and that the husband can do whatever he wants with his wife. One main problem which acts as the source behind not getting consent is that most marriages in India are arranged and go against the will of the woman. The parents of the girl fix the marriage and don’t bother about what goes on in the mind of the girl. Thus, when consent is not cared for in such a big concept like marriage, husbands feel their wife do not have any say when it comes to engaging in sexual activity as well and that consent does not matter.

Culture and Traditions

Most women are made to feel that their whole life after marriage should revolve around their husbands. The socio-cultural traditions, norms and values have taught women that it is their responsibility to satisfy their husband’s sexual needs at all times.

Family intervention and pressure

Most families put a lot of pressure once a couple is married. The only expectation they have of them is to grow their family and continue their family line. In Indian families, a woman is not allowed to have her own reproductive autonomy and thus even if she does not want to have kids, she is forced to have them due to pressure from the families. This family pressure encourages the husband to forcefully have sexual intercourse with the wife and get her conceived. Thus in situations like these, the families do not bother about the woman’s well-being or mental state as they are satisfied about their family line continuing even if a rape is what it took to continue the same.

These are some of the reasons why people are against the criminalisation of marital rape. It is said that culture and tradition is what makes up a nation like India. Customs being a key in creating and forming law has encouraged the law-makers to create the exception of marital rape in Section 375.

Why Should Marital Rape Be Criminalised?

There are multiple reasons why a dreadful and gruesome act like marital rape should be criminalised. Anyone who deprives a woman of her basic rights, liberty and dignity should be punished. Some reasons why marital rape should be criminalised are as follows:

Consent – No matter what the age of the woman, the marital status, the clothes she was wearing, etc, none of this should be considered when giving a judgement on rape. Rape is a rape irrespective of all those factors, all rapists should get punished. The fact that the rapist was the victim’s husband should not mean he should get no punishment at all or get a less severe punishment. Thus, consent should play a role even in marriages and it is important for a husband and wife to mutually consent in order to engage in sexual activity.

Unconstitutional in nature- Marital rape defies other laws like the right to equality, right to a dignified existence, right to sexual privacy, etc. When an act goes against some important laws in the Constitution, the act should be criminalised without any kind of deviation or exception in order to not contradict other laws in the constitution and create ambiguity.

Evolution of culture and traditions- The law should constantly change and evolve. If it does not, the society will either stop developing or the people would go against the law.

Most countries like Australia, South Africa, Canada etc have made changes to their laws and abolished the exception of marital rape. Similarly, Section 375 of theIndian Penal Code should be amended soon in order to protect the women of our country. Repealing this law would prevent marital rapes to some extent which would be a good start.

Conclusion

India has moved forward when it comes to laws for women. For example, dowry, adultery, divorce, etc, have been some good improvements made in favour of the female citizens of the country. Similarly, criminalizing marital rape would be a huge victory for India. By doing this, the society would also evolve and the people will move forward from a system filled with patriarchy. The first step towards doing this is erasing the line that differentiates rape from marital rape. If marital rapes are treated as just rapes, the rapists would get the same punishment. In India, putting the conventional customs and traditions on a pedestal has been so normalised that a horrific act such as marital rape is not even considered to be a crime.

Marriage must not be used as an excuse for committing rape. It is time that we as a society start raising our voices for the sake of all the married women and change the cycle for a good future. The societal stigmatization and the misogynistic attitude of people must change. The right way to start is to educate the women of our society, empower and stand up for them. Like Melinda Gates said, “A woman with a voice by definition is a strong woman”. India is a country where goddesses are worshiped. In such a country, not criminalising a heinous act like marital rape is hypocritical and is a miscarriage of justice.

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Sana Myiesha

I am a law student, feminist and a football enthusiast studying in Bangalore, aspiring to become a sports lawyer in the future. I enjoy writing and creating content especially in the field of law. I am extremely passionate about gender equality and women's rights and voice my unfiltered and honest opinions on topics related to that. Being an observer and a fast learner, I am fond of writing content on new topics. I'm a die-hard animal lover with extra liking towards cats. In my free time, I enjoy binge-watching TV shows and eating momos. With good communication and ability to research on various topics, I hope to write blogs and articles that impacts the reader and makes a difference in their thought process

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