Context: The question of the debate has been marital rape and whether it should be criminalized or not?
The two words Marital and Rape define the sexual relationship post-marriage. This can be forceful or consensual, but the matter of the fact is that it is not a criminal act to force someone to do something against her will in order to please yourself.
What is marriage: Where two persons of the opposite sex give their consent for marriage however following different religious and cultural rituals with common among the majority being a written consent.
What is rape: Rape is one of the most heinous and common crimes committed against women. It is the 4th most common crime in India. Rape is defined under Section 375 of the Indian penal code,1860 also known as IPC.
The legality of Rape and punishment: Under Section 375 of IPC, 1860 a man is said to commit rape if he penetrates his penis or inserts, to any extent, any object or a part of the body, not being the penis into the private part of a woman or manipulates any part of the body of a woman under any circumstances:
- against her will;
- without her consent;
- with her consent where her consent is obtained by putting her into fear of death or hurt or when her consent is obtained when she is intoxicated or in a state of unsound mind or
- when she believes she is lawfully married to that person but he is not her husband or
- when she is under the age of 18 or when is unable to communicate the consent.
What is marital rape: Currently, India doesn’t have any provision in any law for marital rape. In general terminology, marital rape means when a woman is forced by her husband to engage in sexual relations after marriage, where it is committed against her will and her consent is absent for such intercourse. It is said to be forceful sexual intercourse by one partner upon the other partner.
- More than two-thirds of the married women have been forced by their husbands in sexual intercourse, regardless of their socio-economic status “UN Population Fund”.
- One in five men has forced his wife or partner to have sex.
- Over 104 countries have already criminalized marital rape.
- India is among the 36 countries who are yet to criminalize marital rape.
Effects of such relationship on a woman in particular and society at large: Marriage has been a sacred institution in Indian culture, a dispute in one’s family is considered to be a personal matter of a family even if it infringes a woman’s right to protect her body where she is living in an abusive relationship with her husband or sometimes even with her in-laws. Domestic violence is considered normal in backward and rural areas. It is one of the most commonly inflicted abuses after a woman gets married, either physically or emotionally, or mentally. The sad part of such a barbaric crime committed against a woman is, that though her family knows about it she is advised to stay with her husband without reporting the crime, yet at some point, her innocence gets murdered under the silence. Such women are the least participants in the already deprived economic and political sphere.
Constitution of India
Both women and men are equal and enjoy the fundamental rights equally under the constitution. However such basic fundamental rights are getting violated due to the abuse from her husband. Article 14 and Article 21 of the Indian constitution state the right to equality and equal protection for every citizen and the right to life and personal liberty respectively. A female does not become anyone’s property because of getting into marriage. She is as much entitled to the rights as any other person in this country.
Females have proved innumerable times across multiple sectors such as education, sports, and elections that they are not less capable than men. If they get the chance or opportunities they will do their best to achieve the goal. Females still have to fight for their basic rights which were already given to them years back when the Indian Constitution was in the making. Marital rape is a despicable crime and has been criminalized by the law in many countries. It is high time that the Indian government should look into it seriously.
Marital rape outside India and its punishment
India: In India, marital rape is not a crime yet, because it has an exception in the IPC under Section 375, a man who has intercourse with his wife who is above the age of 15 years is not considered as raped by her husband known as Marital Rape Exception in common parlance.
Other Countries: Many countries of the world have criminalized marital rape either by adding a provision in the penal code or by removing the exemption from the provision or by introducing an act to protect a married woman. Countries like Brazil, Austria, Belgium, Finland, Canada, Dominican Republic, Ireland, and Israel have taken active role years back either by changing the provision in the penal code or have decriminalized it. The highest punishment for marital rape is of 15 years of imprisonment in Austria which was criminalized in 1979.
Indian laws on marital rape
Today worldwide, India stands one amongst the 36 countries developing nations/countries that haven’t criminalized marital rape. In the Nimishbhai Bhartibhai Desai vs State of Gujarat 2018, case the question was raised whether a husband who is forcing her wife to indulge in oral sex would amount to rape or not and should be punished under Section 376 of IPC.
The court took this matter and said that our country hasn’t made marital rape a criminal offense till now. Because of the fear, that it will destabilize the institution of marriage and also women can misuse this as the case with other laws.
The other paradigm if a husband forces his wife to indulge in sexual intercourse he would be liable for the offense of assault only under valid marriage and not for rape.
The act of marital rape does hamper the growth of women at the personal and family levels, this cumulatively out turns into a lag created at the national level. This holds our economic, social, and welfarist fundamentals of governance in a cage. It may seem a minor issue but it hampers the GDP of our country. It is said that 90% of women face violence once in their lifetime, such a disturbing demographic dividend is very less productive despite of being skilled.
As the matter is sub judice, the eyes and ears of Indian women are on judiciary, what we can expect is rejuvenation and rehabilitation of those who suffered and protection of others.