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INTRODUCTION In the eyes of the law, marriage is considered a religious ceremony, it is a formal union, a social and legal contract between both man and woman that legally, economically, and emotionally unites their lives. Therefore, women should always feel safe and secure within the four walls of marriage.
An offence is considered rape when a man had sex with a woman without her consent. It is a heinous act of cruelty which takes out the spirit of the victim. Rape not only causes bodily injury but also mental suffering to those who were forced to have sexual intercourse against their will. Thus, when a husband conducts sexual intercourse with his wife against her will is considered marital rape which is an offence that infringes the fundamental rights of a woman’s privacy and her dignity.
NEED OF PROVISION FOR THE MARITAL RAPE IN INDIAAccording to Section 375 of Indian Penal Code defines rape the section consists of seven notions of consent that, if violated, would constitute the offence of rape by a man. However, the provision provides a crucial exemption i.e. exception (2) of Sec 375 of the Indian Penal Code, 1860 decriminalises marital rape and holds that sexual intercourse by a man with his wife, who is not under 18, without her consent is not rape.
Section 376 of the IPC provides punishment for rape. As per this section, the accused should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine but this section does not apply on the cases related to marital rape which nowadays, in India is one of the most serious issues.
The Protection of Women from Domestic Violence Act recognizes marital rape as a kind of domestic violence. A woman has the right to sue her husband for marital rape under this law through legal division. Marital rape is unjustifiable because it damages a woman’s affection and trust, leaving her feeling insecure and afraid.
Similarly, the fundamental right to privacy of the wife is also violated by the husband when he isn’t considerate of the wife's personal space and does not take her no into consideration due to patriarchal society but its high time & need for every individual to understand that the term ‘NO’ has no meaning other than NO. NO means NO.
During the case of the State of Karnataka v. Krishnappa, the court ruled that rape violates the fundamental principles of human rights and is an illegal intrusion on a woman's right to privacy and sanctity, which is protected by Article 21.
In addition to this, the 'right to equality' is violated when marital rape is not seen as a type of rape because the society of India believes that after marriage, a man right over his wife to fulfill all of his sexual needs even though the consent of the wife is always implied.
Currently, out of 185 nations in the globe, 77 have laws that expressly decriminalise marital rape and offer forgiveness to men who rape their wives. The remaining 34 countries specifically criminalise marital rape. One of the 34 nations that have decriminalised marital rape is, sadly, India.
In India, this matter of marital rape has reached its edge and now it should be considered a serious offence and serious punishments should be given to offenders. Thus, it is necessary to criminalize marital rape in India.
NOTABLE POINTS FOR AWARENESSEnsuring safety of the women: This will ensure that women are protected from abusive spouses and can get the support they need to recover from marital rape and protect themselves from domestic violence and sexual abuse.
Marriage is not a license: Marriage should not be seen as a license for a husband to forcibly rape his wife. Furthermore, a married woman has as much right to control her body as an unmarried woman.
Suffering for life: A woman who is raped by an unknown person suffers throughout with the memory of heinous assault; a wife who is raped by her husband lives with her rapist (i.e. her husband) for the rest of her life.
Bodily honor is essential to Article 21 of the Indian Constitution: A wife has an absolute right to deny sexual relations/ intercourse with her husband as the right to bodily integrity and privacy is an essential part of Article 21 of the Indian Constitution. The Apex Court has brought within the sphere of Article 21 the respect of women and the freedom to make choices relating to sexual acts.
Article 14 : Every woman of India is entitled to equal treatment under Article 14 of the constitution and a person's human rights do not entitle to be neglected by any individual, including their husband.
Consent and Spousal Relationships: The notion of consent within spousal relationships has become a significant factor in marital rape laws. Consent must be ongoing and can be withdrawn at any time, regardless of marital status. The concept of marital rape recognizes that marriage does not equate to perpetual consent to sexual activity.
Prosecution and Reporting: Marital rape cases can be challenging to prosecute due to various factors, including the intimate nature of the crime, power dynamics within relationships, and social stigma. Victims of marital rape may face barriers in reporting the crime and seeking justice. Hence, there should be a team equipped and trained to deal with such sensitive matters.
Legal Reforms and Challenges: Since marital rape is not a crime throughout India challenges remain. Some specific legal requirements, such as additional evidentiary burdens or shorter statutes of limitations for marital rape cases, could hinder successful prosecutions. Advocacy groups must continue to work toward further legal reforms, improved support for survivors, and increased awareness about marital rape.
ARGUMENT FOR CRIMINALIZATION OF MARITAL RAPE In today's society, crimes including domestic abuse, divorce, adultery, sexual assault, and marital rape are increasingly being linked to marriage. Men believe they are privileged and entitled to rule over women physically and intellectually. In India, where patriarchy is prevalent many husbands believe that having a wife gives them the freedom to have sex with her whenever they like, even without getting her permission. The ignorance of the Government of India regarding the criminalization of marital rape will result in damage to the concepts of the right to life and the right to equality of women enshrined in the Constitution of India.
Criminalization of marital rape in India will give married women a legal means of obtaining justice, ensuring that they are shielded from abusive spouses while they are married, and giving them the chance to heal from marital rape and other forms of sexual abuse. To fulfill their husbands' sexual desires, wives no longer need to live as sex slaves.
Numerous notable judges have spoken their opinions on the subject of criminalising marital rape in India and have rendered significant rulings as marital rape became a more serious issue in society.
In the case of Joseph Shine vs Union of India (2018), Justice Chandrachud asked the question of whether a woman or a man loses sexual autonomy when they marry. He said I believe ‘no’. Along with that, he added, "The right to refuse sexual relationship should also exist after marriage."
However, as per the judgment given by Karnataka High Court (march 2022), Justice M Nagaprasaanna criminalized the marital rape and stated that the institution of marriage is not a source to confer any exclusive male privilege or a license for releasing of a “brutal beast” on the wife.”
In recent judgments delivered by High Court of Karnataka in the case of Hrishikesh Sahoo vs State of Karnataka where it was refused to quash a rape complaint registered against a husband by his wife who was accused of treating his wife as a “SEX SLAVE”, while considering the facts of the case the High Court ruled that "A man is a man, an act is an act, and a rape is a rape whether it is committed by the 'husband' on the 'wife'. If a man is punishable for committing the crime of rape, he should also be punished while still being the spouse.
CONCLUSIONIn conclusion, since the beginning of the 1970s, there was a growing recognition of the rights of women and the importance of consent within marriage. States should start revising their laws to criminalize marital rape, removing the marital exemption. Historically, marital rape was not recognized as a criminal offense in many countries, including India, due to the perception that marriage implied permanent consent to sexual activity. However, there has been increasing recognition worldwide that marital rape is a violation of an individual's autonomy and rights. It is about time India moves in the right direction.
~Authored by Arpita Singh