Skip to main content

Marital Rape in India: A Nightmare Amidst in Wedlock Roses

 


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.

Comments

Post a Comment

Share your views

Popular posts from this blog

Registration of LLP and Laws

  Name – Shweta Pandit College - National Law School Of India University, Bangalore. Introduction- LLP(Limited Liability Partnership) is a limited liability company, you will find the characteristics of both a corporation and a partnership in this form of a company. LLP came into effect in 2008 when the Limited Liability Partnership Act was passed in India..  LLP- Limited Liability Partnership, is a partnership where partners have limited liability and are responsible only for the loss/damage created by themselves and not by any of their partner or partners. Partners in LLP have a fair share of say in the workings of the business.  Registration of LLP- It is a long process to register a LLP, the few steps involved in the process are discussed as follows: First step is to get the DSC, which is a Digital Signature Certificate from the government agencies such as E-Mudra, NSDL, IDRBT Certifying Authority, National Informatics Center, CDAC and each agency has its own costs of providing ser
15 comments
Read more

Attestation , Revocation, Alteration and Revival of Wills

  Author: Amit Sheoran, Symbiosis Law School, Nagpur People were worried about their lives after the corona pandemic. Because in Corona, no one was aware that anything could happen at any time. That is why they start thinking that if they die, then what will happen with their property and, as a result, they start making plans. A question arises in our mind after hearing the word will. What is will? It is defined under 2(h) of the Indian Succession Act, 1925. A will is a testamentary document by which a person bequeaths his property in the name of any other person. It will be effective after the death of the testator. The property will devolve on the person in whose favour it is bequeathed after the death of the testator. A will can be changed, revoked, or altered at any point of time after it is made. A will can be written more than once.All wills are revocable at any time during the life of the person and are confidential documents. A will can be attested, revoked, altered, and also r
11 comments
Read more

Indian Depository Receipts: Requisites and Benefits

  Yash Miniyar Maharashtra National Law University, Aurangabad A. INTRODUCTION Depository Receipts are a form of transferable instruments, which aid in the flow of general trade in a stock exchange at a given time. They are classified as financial securities in the form of equity that are issued by listed companies. The depository receipt is a form of certificate which denotes the valid holding of the security or shares of a given company. One of the most recognised and busiest forms of depository receipts in the world is the American Depository Receipts, which allows in trading of shares or securities of foreign companies. These receipts act as a form of investment for potential investors in order to diversify their assets and hold shares of their desired companies. This not only allows the economic diversification but also the geographic diversification. These depositories act as mediums to curb the hindrances or the obstacles which prevented people from making foreign investments,
Post a Comment
Read more