Author: Pritam Ghosh
Calcutta University
INTRODUCTION
India will be celebrating it’s 75th Independence Day on 15th of August 2022, yet till now India is backed with various social issues which are very less talked about. One of the most serious issue, which has no recognition of law till now, is marital rape. Many women although born in this independent land of India, has no rights to say ‘NO’ to her husband for sexual intercourse after her marriage. Many men just consider women as property of them, and just to satisfy their lust at nights. What is more disappointing, Indian law does not recognize it as crime. There is no provision under any law, which covers this serious issue.
What is marital rape, and how it is different from other rape?
In simple words, when a husband forces his wife for having sexual intercourse against her will and against her consent, it is termed as Marital rape. India from past, have identified
itself to be a patriarchal society, and so the concept of merging women’s identity with her husband is practiced. This makes wife to stay under the control of her husband and obeying his words, thus accelerating the social evil “marital rape”.
Rape and marital rape is not very much different from one another. Under section 375 of Indian Penal code 1860 the term rape has been well discussed. Generally, main element of committing a rape is forceful sex against her “WILL” or against her “CONSENT”. Now although both the term may look alike, but there is a difference between both. ‘Against her will’ means against her own desire and ‘against her consent’ means against her permission.
Thus, we can clearly say that rape is the genus, and marital rape is just the specie. There is no difference between the element of rape and marital rape, just that marital rape is committed by husband against her own wife. Although being similar in nature, yet marital rape is not punishable under penal code. The fact that wife’s consent for sex with husband is needed, is made immaterial by the cruel patriarchal Indian society.
“Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces.” - F. H. Batacan
Legality of Marital Rape in India.
Rape in ordinary sense, is recognized and punishable under section 375 of Indian Penal code. India has
strict laws for crime of rape. Yet it denies accepting marital rape as a form of rape in expressed manner. Under section 375 of IPC, by adding an exception clause with it, law- makers have wiped off its hand from recognizing marital rape.
Exception clause under section 375 IPC reads- ‘Sexual intercourse by a man with his own wife not being under fifteen years of age, is not rape’ Thus Indian Judiciary have nothing left much to do with the cases of marital rape. Law recognize domestic abuse and cruelty but marital rape failed to pave it’s path to penal code. There has always been a mixed opinion regarding the urge of making marital rape, a crime.
While delivering judgement in famous case RIT Foundation V. UOI and other connected matters, Justice Rajiv Shakdher gave split verdict, and came in support of making marital rape a crime. He opine with striking down the exception clause in section 375 of IPC. He held that forceful sexual intercourse by husband with his own wife, should fall within the folds of section 375 of IPC only as ‘absent of consent’ should be given importance in rape, and not the relationship status between rapist and the victim. He further added “Forced sex by husband on wife should labelled rape” He justified it by adding, not always giving consent for sex to husband is also a girls Right to Life and Liberty.
However in same case, RIT Foundation V. UOI and other connected matters, Justice C Hari Shankar differs with the opinion of Justice Shakdher, about criminalizing marital rape. He stated striking down the exception, under section 375 IPC will result in creation of new offence. In another significant judgement, Hrishikesh Sahoo and State of Karnataka (Writ petition No- 48367 OF 2018) Karnataka High Court ruled, Marital rape, as an exception of rape, is regressive in nature and it violates article 14. It stated that, Husband cannot be ruler of women’s body and mind.
How it is affecting women and Indian society?
As marital rape is not criminalized, it is spreading a lot of social disparity in the society. It does not let women fell free or independent. It is very depressing for a wife, who is being tortured in name of marriage union. According to 2015-2016, National family Health Survey, it is reported that 83 percent of married women in India have accused there husband of sexual violence. In 2017, The Better India reported India as being among 36 countries, where marital rape is not a criminal offence.
This kind of non-recognition to a serious crime, is becoming a hindrance in way of making India into better country. As there is no punishment for marital rape, number of this offence is increasing day by day and women have to constantly bear with this.
It is even destroying the sacred institution of marriage. It is because of all these things which are making marriage more a contract than a solemn pledge. Marital rape is also becoming a prevalent factor for increasing divorce rate in India.
Possible Remedies
Although, marital rape is not recognized by law, it should be noted that assault and cruelty towards wife is strictly prohibited by Indian law. Women are well protected by law against any kind of harassment by her husband or in-laws. She should take the defence under the above stated grounds.
She should never tolerate such forceful sex from her husband and should never keep that to herself and should atleast file a police complain. Under no circumstances, women should think after marriage, she becomes mere property of husband.
Conclusion
Indian judiciary is doing commendable job these days, by bring revolution in society. It is coming up with so many good precedent overriding the past followed laws. There are many cases pending in court regarding marital rape, and courts are also trying to come up with some good judgement regarding marital rape.
Indian legislature should also look into this matter. They should bring an amendment regarding marital rape, or should provide a ground for protection of women who are becoming regular victim of marital rape.
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