MARITAL RAPE: A NON-CRIMINALIZED CRIME IN INDIA

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Abstract

Marital rape means sexual intercourse done by the spouse without the consent of other spouse. It is mostly experienced by women. In India, there are several laws that protects women from sexual assault, rape, domestic violence but not from marital rape. There are so many countries who has criminalised marital rape including U.S.A.,U.K etc. but India  still have not criminalized marital rape.

Despite the expanded acknowledgment of different Penal laws in India, the marital Rape has produced in the beyond a few decades. There is a need for an exceptional law on marital assault in India, which ought to likewise be acknowledged with global standards on this specific issue. Ladies have been given with the option to battle for insurance, yet her own better half, who she wedded with full conviction, attempts to damage and torment her by having a forceful sex without her consent which eventually ruins her wellbeing and prosperity. There is no avocation or pertinence of the thought of all the conjugal exclusion in the current occasions.

India is as of now the seventh biggest country on the planet, and the speed at which the crime percentages are going up is profoundly disturbing and humiliating for a flourishing, multi-social, huge and common nation like India. Marital rape isn’t just the main worry in the field of women privileges right now, however it additionally abuses a few established arrangements simultaneously. Someone properly brought up that a nation’s development and improvement can be surveyed by taking a gender at the position and regard that it provides for its women.

In this paper, the researcher might want to give out the extent of marital rape, an investigation regarding for what reason hasn’t it been legitimized at this point and why it ought to be authorized in India.

INTRODUCTION

The possibility of marital rape has consistently been under a spotlight when it comes to the circumstances of India. The laws in India have widely chipped away at assault, rape and sexual maltreatment however have turned a dead eye to the idea of marital rape. Not that marital rape doesn’t exist in India, or its reality is near irrelevant, yet the cental government obviously asserts that it would break the upsides of family framework and behave like a solid hit against the foundation of marriage. They likewise made a case that the spouses will be hassled assuming this is the case is given a legal position. Marital rape is by and large viewed as the demonstration of starting sex with one’s life partner without the other mate offering agree to do as such. In many forward nations, marital rape has been condemned and hence, it holds similar lawful outcomes and legal situation as assault to some other person.

Everybody on the planet has their own point of view on whether marital rape ought to draw in corrective activities or it ought to simply be treated as a vital part of marriage as an expansive organization. The inquiry encompassing this matter is whether marital rape is obviously monitored by the arrangements of the Indian Constitution and the Indian Penal Code or the said arrangements deny its lawlessness.

The possibility of marital rape produced worldwide consideration and force in the second 50% of the twentieth century. Worldwide bodies began pursuing the possibility of marital rape and consequently, to clean up the dim, stowed away savagery against wedded ladies. Global contracts and laws appeared, in this way, demonstrating marital rape invalid and void, yet a few nations actually follow it as a vital part of the establishment of marriage.

In old India, marital rape had lawful and social sponsorship which upheld it on the ground that a life partner was qualified for the right of having sex with his mate. That is somewhat a man centric case in this specific situation. Marital rape in India firmly relies upon non-existent, some of the time interpretative stanzas in the Indian Constitution or the Indian Penal Code and the differing comprehension of Courts.

Nonetheless, the cental government alone can’t be faulted for a particularly appalling and grisly demonstration against ladies is still set up, it is the exceptionally male centric and male ruled set up of the Indian culture that we live in. The very society enables its men to carry out such violations and pull off it toward the day’s end. Marital rape, in itself, is a piece of abusive behavior at home. It is a method for intense control of another singular’s musings, thoughts, body and psyche. It attacks a singular’s Right to Privacy and Right to carry on with an honorable life.

Status of marital rape in India:-

The meaning of rape is classified in Section 375 of the Indian Penal Code (IPC) incorporates all types of rape including non-consensual intercourse with a woman.

Non-Criminalization of marital rape in India excludes from Exception 2 to Section 375. In any case, Exception 2 to Section 375 excludes the offence of rape in the sexual intercourse by a man with his wife if she is more than 15 years old.

The idea of marital rape in India is the exemplification of what we call an “implied consent”. Marriage between a man and a woman here suggests that both have agreed to sex and it can’t be something else.

Status of marital rape in other countries:-

1.United State of America

Marital rape or spousal rape is criminalised in all the fifty states in the Unites States of America. However, not all the states in the United States of America treat marital rape and rape the same. Some states like Ohio, Michigan, Nevada treat them differently. But anyhow, marital rape is a crime under some section or the other. In no state is it legal in accordance with the existing laws.

For instance, in Maryland, two individuals who have separated paths by way of judicial separation or divorce are totally strangers to one another. Any coerced sexual act between the two will be considered no different than rape. This part of the US law is quite similar to that of India. The same law applies to the Indian legal scenario. However, the twist takes place when two spouses are residing together, if one of them coerces, threatens or uses force on the other, without the consent of the other spouse, then a valid prosecution can take place.

In Mississippi, a similar situation exists. A prosecution can come into existence only if the rapist and the victim are married and living together at the time of the incident and the rapist performs penetration against the victim’s will.  However, this law would exclude a situation where the victim is incapable of controlling their conduct, under drugs or narcotic influence or any other substance the victim is subjected to which numbs down their sense and presence of mind.

In Nevada, marriage can only be a defence in a situation where there was no threat or force. In a scenario where the victim was subjected to any kind of force or threat, then the defence of marriage is to no avail.

However, in Oklahoma, a person cannot charge their spouse for rape if they were compelled to submit under the influence of narcotics and drugs.

Laws in the USA vary according to the state. In some places marital rape is considered null and void by law in all its forms, in other states the laws have missed out the influence of drugs and narcotics and some other aspects which have not yet come to light.

2. United Kingdom

In the United Kingdom, all kinds of sexual offences are dealt with under the Sexual Offences Act, 2003. In the UK too, marital rape is expressly considered a crime. Section 1 of the same talks about rape. A person is said to have committed the crime of rape if the accused penetrates his penis into the vagina, anus or mouth of the person without their consent and on purpose. It doesn’t matter whether the victim resides with the accused or not, knows the accused or not, or is or was married to the accused or not. What matters is the element of consent. If the victim hasn’t consented to the penetration, then it will be considered as rape. 

A landmark case in this regard is R v R . In this case, the House of Lords held that it is possible under the English Criminal Law the commit rape on his own wife. The defendant, that is the husband, claimed that he can commit rape on his wife since the wife gave him irrevocable consent by the contract of marriage. Thus, as a reaction to this, both the House of Lords and the Court of Appeal held that there is no exception of marital rape under the English law.

ANALYSIS                     

As one can deduce from the words given above, there are several sections in the Indian Penal Code which could be used to safeguard a woman from marital rape. There are several sections from the IPC which are violated when ideas like Marital Rape aren’t taken seriously in a marriage. However, countering the counter arguments, the idea of marital rape is one that tarnishes the idea of marriage because it is a woman’s own husband that forces her for sexual encounter, whom she trusts and has faith to protect her. This causes more of a trauma than being raped by a total stranger.

As one can see that the country of England has made much progress in accepting marital rape as a flaw and making laws towards it. Not far behind is the United States of America, which has banned marital rape in few states now.

Marital Rape: Against Legal and Constitutional Rights

Non-Criminalized nature of marital rape radiates from the British period. At the time the IPC was drafted during the 1860s, a wedded lady was not viewed as an autonomous legitimate substance. The conjugal exemption for the IPC’s meaning of assault was drafted based on Victorian man centric standards that didn’t perceive people as equivalents, didn’t permit wedded ladies to claim property, and combined the characters of a couple under the “Precept of Coverture.”

Violation of Article 14-

Marital rape abuses the right to uniformity revered in Article 14 of the Indian constitution.

The exception makes two classes of ladies dependent on their marital status and inoculates activities executed by men against their spouses.

In doing as such, the Exception makes conceivable the exploitation of wedded people for reasons unknown other than their conjugal status while shielding unmarried ladies from those equivalent demonstrations.

Defeats the Spirit of Section 375 of IPC-

The reason for Section 375 of IPC is to secure ladies and rebuff the individuals who take part in the uncaring movement of assault.

In any case, absolving spouses from discipline is totally conflicting to that goal, as the outcomes of assault are a similar whether a lady is hitched or unmarried.

Additionally, wedded ladies may really think that it is more hard to get away from harmful conditions at home since they are legitimately and monetarily attached to their spouses.

Violation of Article 21-

According to inventive understanding by the Supreme Court, rights under Article 21 incorporate the rights to wellbeing, security, respect, safe everyday environments, and safe climate, among others

In the State of Karnataka v. Krishnappa[1], the Supreme Court held that sexual savagery separated from being a dehumanizing act is an unlawful interruption of the right to security and sacredness of a female.

In a similar judgment, it held that non-consensual sex adds up to physical and sexual brutality.

In the Suchita Srivastava v. Chandigarh Administration[2], the Supreme Court compared the option to settle on decisions identified with sexual movement with rights to individual freedom, protection, poise, and real respectability under Article 21 of the Constitution.

In Justice K.S. Puttuswamy (Retd.) v. Association of India[3], the Supreme Court perceived the right to security as a basic right, everything being equal.

The right to protection incorporates “decisional security reflected by a capacity to settle on personal choices essentially comprising of one’s sexual or procreative nature and choices in regard of private relations.

In this load of decisions the Supreme Court has perceived the option to swear off sexual movement for all ladies, independent of their conjugal status, as a crucial right gave by Article 21 of the Constitution.

Contradiction arises despite Justice J.S. Verma panel recommendation to make marital rape a crime

Four years after the Supreme Court referred to Justice J.S. Verma committee’s recommendation to make marital rape a crime, besides quoting from decisions of courts across the world that “a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist”, Indian courts continue to take views on marital rape that are the polar opposite of each other.

The recent response from courts to complaints of marital rape has been contradictory. When the Kerala High Court backed marital rape as a valid ground for divorce, a court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an  “illegal thing” though she said it left her paralysed.

In 2017, the top court, in Independent Thought versus Union of India, refused to delve into the question of marital rape while examining an exception to Section 375 of rape of the Indian Penal Code which allows a man to force sex on his wife if she is above 15 years of age. However, in its judgment that declared “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not”, the Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.

Similarly, the Gujarat High Court has held that “a law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape”.

“It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape,” the High Court had suggested.

Legislative amnesty to marital rape continues to survive in the statute book despite a gamut of decisions by the Supreme Court upholding the bodily integrity and privacy of women right under article 21.

 WHAT CAN BE DONE

 In a nation where a lady gets assaulted at regular intervals and the probability of an Indian wedded lady experiencing sexual violence is multiple times more, the requirement for dynamic interest in authorization of marital rape is relevant. Despite the fact that in the new past, the Justice Verma Committee and the 42nd Law Commission Report have encouraged criminalisation of marital rape, the main alleviation presently accessible are the common cures spread out under the Domestic Violence Act of 2005.

There is an earnest requirement for the legal executive to perceive marital rape as an offense under the Indian Penal Code, particularly now when there is a flood in homegrown and sexual brutality bodies of evidence against ladies because of the pandemic-instigated lockdown.

The disposal of Exception 2 of Section 375 and the discipline for marital rape being comparable to the one recommended under Section 376 would ultimately prompt all encompassing advancement of criminal legal executive in our country.

Notwithstanding the culprit’s personality or the casualty’s age, the way that it was an assault doesn’t change. A lady who is assaulted by a more bizarre conveys the memory of an awful episode with her; then again, a lady who is assaulted by her own significant other lives and needs to lay down with her attacker. It is about time that Indian ladies and their common liberties are not disregarded, particularly the legal executive that has committed to secure each individual’s principal rights.

 Conclusion

Taking into account the laws of other countries in comparison to the Indian nation, India is far behind from taking a step to create an exclusive law for MARITAL RAPE at the moment.  Till a new law comes into being, the provisions from IPC and the Indian Constitution could be used as a defence. However, in the changing times every law needs to go through a change as one is discovering new things everyday and human mind is constantly evolving. Thus, till a new law is in place, one can use the existing provisions. After a scrutinising study one can bring a new law in place for Marital Rape or add relevant sections to IPC or the Domestic Violence Act.

Countries like the United Kingdom have taken relevant steps to recognise this social evil and are constantly making new laws in order to fight this kind of an atrocity against woman. However, there have been many counter arguments in this line of thoughts namely, that curbing marital rape would be an attack on the institution of marriage and thus would be constantly misused. This is the reason why the researcher suggests that the law making authorities may take time to analyse and scrutinise the consequences and results rather than haphazardly put a law in place. Marital rape, without a doubt, is a violation of a woman’s right to dignity and wellbeing and thus, for a progressive country to thrive, a law should be brought into place.


[1]AIR 2000 SC 1470,(2000) SCC 75

[2] AIR (2009) 14 SCR 989,(2009) 9 SCC 1

[3] AIR 2017 SCC 4161

Author: Sandhya Kumari, Balaji Law College, Pune University

Editor: Kanishka VaishSenior Editor, LexLife India.

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