Marital Rape: Crime That Needs its Introduction in IPC
Marital Rape is an act of Domestic violence and sexual abuse when a spouse gets involved in sexual intercourse with his wife without her consent. Ancient laws didn’t consider it as an act of crime yet in this era many international countries have provided the woman with a right of consent.
A woman’s consent is the most important feature in marital rape even though physical violence is not present there. Historical laws represented that if a husband sexually assaults her wife it is within his rights as the wife has given her up to her spouse with marriage.
The modern societies though opposed the sexual violence among husband and wife and raised their voices. Since, 20th century many countries started reforming their laws related to marital rape.
Marital Rape in India
Domestic Violence has always been an issue in the society in India. Laws relating to domestic violence has been an issue of debate in India.
Government has always promised to make women safer in this society yet the implementation of those laws relating to women rights and the domestic violence in the society showcases different perspective.
The laws have been created yet not implemented in the best possible ways. Women don’t feel safer at home as per the reports. Statistics suggest that 70% of women face domestic violence by her husband and their in-laws.
Among the domestic violence, marital rape or sexual assault is also one of those crimes. About 99% of cases where women face sexual violence by their husbands are unregistered. This is a worrying statistic.
Sexual Violence or marital rape is one of the heinous crimes. A woman who has built her trust in her husband is being betrayed by her is cruel to them.
Several laws have been made by the government relating to domestic violence and sexual violence yet they remain ineffective. But what’s strange is that Marital rape is still legal in India.
Out of 196 countries. only 36 of them has made an exception by making marital rape as legal including India. The decriminalization of Marital rape undermines the dignity and human rights of woman in a society and a country.
India is a country which has been worshiping female goddesses for a very long time and is one of those countries where women are not safe as per the reports.
According to Section 375 of the Indian Penal Code, rape has been defined as all forms of sexual assault including non-consensual forms of sex. however, Marital sex has been non-criminalized under exception 2 of section 375.
As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. Marriage between a man and a woman in India implies that both have consented to sexual intercourse and it cannot be otherwise.
Stand of Union Government & Supreme Court on Marital Rape
In the recent past, bold steps and verdicts have been made by both making it look like India is moving forward towards a more liberal and open mindset of a changing society where everyone’s rights are being protected.
Yet the exception of marital rape in the Section 375 of Indian Penal Code is a question which makes it look like the government and judicial system are confused about it.
Union Government has been the most stubborn of all in decriminalizing Marital Rape because they believe, it will affect the marriage institution of India. According to the Union government, India should not blindly criminalize it because western countries have already done it because they believe that Indians aren’t ready for it yet.
They think that it will then be used as a weapon by woman against their spouse. Before criminalizing Marital rape we should lookout for common problems such as poverty, literacy, women empowerment etc.
Many a times, petitions have also been filed in the apex as well as supreme court for criminalizing Marital rape but their voices were lowered.
One of the cases namely, Arnesh Kumar vs State of Bihar, the apex court dismissed the petition by saying that the law shan’t change for just one woman. The apex court believed that criminalising marital rape will be the collapse of the social and family systems amidst the already existing biased laws.
There have been many more petitions for criminalizing it yet the government and Court have taken the sides of husbands and shielding them by not taking any actions against them.
In 2019. former Chief Justice of India Dipak Misra while attending an inaugural National conference on Transformative Constitutionalism in India said that, he believes there is no need to criminalize Marital rape.
He said that “India shouldn’t make it an offense just because Western countries have done it. In villages it will create absolute anarchy as this country still holds family values, we still respect the family background and many other facets and India is sustaining because of the family platform.”
Such remarks were made by him on a question by a student of LLB. Dipak Misra has delivered several landmark judgments including decriminalising Homosexuality.
Government believing that India isn’t ready for it makes us believe that maybe the fact that most of the Indian women face such cruelty will stand for such violence and the family platform of India may fail. But, if it is really true, then do we really need such a platform where women doesn’t have a right to stop the violence or punish those who make them suffer.
Supreme Court though believes in criminalizing it as explained by them in the case Independent thought vs Union of India. Supreme Court said that if divorce hasn’t let down the family platform, criminalizing marital rape will not certainly not end it.
Gujarat High Court in Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April, 2018 ruled that non-consensual sex is what has led down the family platform because the trust and confidence of woman in her husband has been betrayed.
Debates on Marital Rape
In 2018, Scoopwhoop unscripted asked for the opinions of the people about Marital rape and the comments made by the people in that video suggest that the term should be criminalized.
The video shows how they believe that marriage is just a license for sex any minute and day of the year and that with their marriage they have bought them for sex and their household works rather than living in a mutual relationship.
The opinions of the people in the above video is not just of one city, rather it is the story of the nation. A nation where the Chief Justice of India believes in shielding men even after rape is atrocious.
In a recent case of Vinay Pratap Singh vs State of UP where Vinay was alleged by her wife of marital rape, the remarks of CJI Bobde left the nation concerned.
CJI Bobde asked, “If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape?”
Does this mean that women have unequal rights as men? The thinking of the society needs to be changed not because they are wrong but it is a spreading virus which will destroy the lives of woman.
The society thinks of woman as their property as they wish. Before marriage, a girl is his father’s property while it belongs to her husband after marriage who can use her as he wish. Even when the personhood of a woman is molested, it is considered as a damage to her family’s honor.
She is questioned even though she is a victim and face further molestation in public because the society has always made efforts to make men superior while silencing the women.
A country where we pray to goddess laxmi for wealth, Goddess Saraswati for wisdom, Goddess Parvati for love and harmony, such instances with the woman are injustified.
Even the judiciary system has not allowed the justice to women. They can protect woman for being physically abused in a bedroom, sexually molested by her husband but has provided an exception of rape.
Does our legal system believe in raping wives? Is this their way of stopping sexual assaults in the country outside the bedroom? Do they believe in supremacy of men over woman?
If so, then the condition of our judicial system is much more worrisome than it looks.