Marital Rape: A crime unrecognised in India
A perplexing legal conundrum lying unresolved despite having a clear, moral answer
The criminalization of marital rape is still a distant dream in India. Section 375 of the Indian Penal Code defines the offence of rape with six descriptions. Ace of the anomalies is that a man doesn’t commit a crime if he attempts to have unwilling sexual intercourse with his wife (over 15years old). This provision of the State makes it legal for men to rape their wives. The exclusion is ambiguous and needs to be fixed. However, it was read down in the case of Independent Thought v. Union of India as “Sexual intercourse or sexual acts by a man with his wife, the wife not being 18 years, is not rape”.
The inability of the law and its institutions to deal with marital rape exposes the boundaries of the Indian legal and justice system, making it seem adversarial. Till date, the petition filed by RIT Foundation seeking to close this loophole is getting shelved. The issue of marital rape keeps burgeoning is due to the inability of the Constitution of India to keep up with modern thoughts and principles.
It is a crying shame that even when India is looking forward to its 73rd year of independence, there is a ubiquitous influence of patriarchy all over the nation. The concept of the male-dominated society in India is therefore an epitome of discriminatory (behavioral) bias.
Cultural Paradox
Males, being the predominant gender in the political class of this country, have internalized this belief of viewing their wives as their property. An act against own property isn’t considered a crime, therefore, it is presumed that no crime is committed if men try to forcefully have intercourse with their wife. Surprisingly, some men take their wives for granted since they are under their possession and ownership. Laws made to predominantly serve the aspirations of the dominant class, at the expense of the marginalized and weak. The Indian system has continued to shield men who assault their wives by presenting their institutions as the epitome of “neutrality”.
In ancient times, women were worshipped as goddesses, but one merely needs to look around and see how ironic and misleading this pedestal is. Marriage is supposed to be more than merely a physical act, an act of sharing. Marriage is one of the main institutions of human culture. Since the beginning of civilization, women were seen as chattel transferred by the father to the husband in a marriage. The satisfaction of the husband’s sexual demands was considered as one of the marital duties of women, which in turn gave rise to the marital rape exemption. Until today rape within marriages is motivated by the desire of asserting power and establishing dominance over women.
JUSTICE — AN ABSTRACT?
Indian system and institutions claim that men will suffer if marital rape is outlawed. They argue that if marital rape is criminalized, a majority of marriages will fall apart at once given the legal recourse and protection to women, they will seek advantage to falsely blame men. This begs the question: Who exactly is the system trying to protect? The husbands raping women or wives being raped?
The concept of ‘unwanted intercourse’ refers to all forms of penetration, perpetrated against the wife will or without her consent. Since men believed to have acquired an unquestionable right to intercourse with their wives it became a duty to submit to their wants. This right can’t be retracted as both of them are in mutual matrimonial consent. However, many countries, including the US have provided relief to the women who are raped or sexually abused by their husbands. Though Indian law recognizes domestic violence against women as an offence, although it is mainly confined to torture or physical harm rather than the sexual abuse of the women.
Marital rape can be classified into 3 main categories:
- Rape involving a degree of violence,
- Rape involving force only, and
- Obsessive rape or ‘pornographic rape’ in which the victim is forced to do acts which humiliate her.
Marital rape is as serious as any other form of sexual violence. Many effects may accompany marital rape: physical effects, gynaecological effects, short- and long-term psychological effects. Women may have injuries in their vaginal-anal areas, lacerations, soreness, bruising, torn muscles, and fatigue. The ones who are raped and battered frequently suffer from cracked bones, black eyes, bloody noses, and knife wounds. Police officers, doctors, counsellors, and advocates — people who get in contact with marital rape survivors should also play a part in addressing this problem of sexual violence by providing resourceful facts and information to the concerned authority.
By putting so much value on marriages and family, the Indian diaspora fails to realize that the heinous act of ‘marital rape’ dents further damage to the institution of marriage.
The argument — that women will falsely accuse their husbands- has been used many times for various domestic violence laws enacted to protect women in India. If some women attempt to misuse the law, it’s what the judiciary is there for — to weed out false accusations and provide a penalty. Courts have attempted to gauge the reality of the situation because of low conviction rates in India. It happens due to poor investigations and lack of proper proof, and not because women are out to get men.
Is it that women lose their right to privacy upon marriage?
Legal Service India says that criminalizing marital rape could “destabilize” marriages and make men vulnerable to harassment of their wives. The government agrees with the men’s rights group that husbands will be falsely accused of rape just to settle personal vendettas. The government also believes that Indians shouldn’t blindly follow western countries that have criminalized marital rape. While India’s parliament passed, some of its recommendations, such as criminalizing stalking and acid attacks, it does not agree with the panel’s proposal to outlaw marital rape.
Through various judgements of the Supreme Court, it is now clear that right to life under Article 21 of the Constitution includes right to privacy, sanctity of female and to make choices relating to sexual activity. ‘Right to Privacy’ is one of the fundamental rights granted to every individual in India. Forced sexual intercourse violates the fundamental right.
Judicial Conundrum
As we are moving towards development, the lawmakers should apply modernistic jurisprudence approach rather than the old one. Women across the country, believe that it is necessary to preserve and keep the right to equality and right to life and personal liberty on a high pedestal rather than, the institution of marriage.
