Marital rape and criminalization of sexual assault within marriage
Introduction
Marriage does not take away the right of the woman to say no; respecting her and her body is the basic principle of long-lasting marriages. Sexual intercourse between people without the consent of the person is known as rape, which is a heinous and grave offense not only committed against the person physically but also mentally and emotionally. But marital rape or spousal rape is a much more atrocious crime here; not only is the wife’s being disrespected, but her trust and the basic foundation of the sacred ritual such as marriage are put to question.
Marital rape is essential, focusing on the essentiality of consent from the spouse for the sexual consent; the aspect of physical violence comes into the secondary category. For such an offense, priority is given to the offense of rape, and then the physical violence plays a vital role in explaining the brutality of the crime committed against their partner. This explains to us that marital or spousal rape is not only a case of domestic abuse but is also a sexual offense that must be treated as such.
The issues relating to sexual abuse and domestic violence within marriage, or, for the most part, the females in the marriage, have increasingly become an international issue with the growing number of crimes committed. In many countries, marital rape is either not considered a criminal offense or is illegal but fairly tolerated by the justice system. This is mainly because of a lack of knowledge or ignorance about the fact that consent from the spouse is required in order to have a sexual encounter. And rape as a whole concept is often justified and treated as the victim’s ill-fortune and mistake rather than the perpetrators in most countries, so the concept of marital rape is just not justifiable in the eyes of patriarchal society.
Marital rape in India
Though marital rape is increasingly being recognized as an issue on the internal front, with over 150 countries having laws covering the offense, sadly, India is not one of them.
Section 375 of the Indian Penal Code, or IPC, considers the forced sexual conduct between husband and wife as rape only if the wife is under the age of 18, but in occasional cases that come across the high court, judgments have been received stating it as a good reason for divorce or as a crime of some sort but not rape. There is no explicit reason why there is an exclusion in Section 375, seeing as it takes away the right to a married woman’s bodily autonomy while also stripping her of the basic rights to life, dignity, and freedom of choice while in the marriage. The clause is said to be a presumption that consent to the marriage under the purview of a valid marriage legalizes sexual intercourse between the spouses, making the question of marital rape criminalization invalid. Even in the Domestic Violence Act of 2005, marital rape is considered and treated as a civil crime as opposed to a criminal one.
The need for the criminalization of marital rape
Criminalizing marital rape would pass on the message to society that marriage does not give away a person’s right to their body and freedom of choice to their spouse while affirming the significance and gravity of consent in a relationship, making them more stable for the future.
Rape, as mentioned above, is often considered in society to be an ill-fate of the victim rather than a crime, and in order to invalidate these social stigmas relating to such matters and build a strong and democratic society, criminalization of marital or spousal rape is a requirement. It would promote gender equality and protect the person’s freedom and dignity, all while educating the masses about the immanent sexual abuse in society.
And the argument that marriage means consent for sexual pursuit literally contradicts the basic foundation of the sacred bonding of marriage, which states that men and women are equal in the bond. When there is equality in the institution of marriage, then why is there a need for dominating and disrespecting the spouse in such a cruel and gruesome manner as rape?
And ignoring the need for criminalizing marital rape makes it seem like exoneration to the perpetrators of marital rape, leading to the continuation of such crimes even in the future, jeopardizing the faith of the victims in the justice system.
Reference
- Deeksha sood, criminalization of marital rape, https://www.legalserviceindia.com/legal/article-11376-criminalization-of-marital-rape.html#:~:text=Marital%20rape%20should%20be%20criminalized,sexual%20activity%20without%20their%20consent.
- Marital rape, https://en.wikipedia.org/wiki/Marital_rape#:~:text=Marital%20rape%20or%20spousal%20rape,domestic%20violence%20and%20sexual%20abuse.
- Marital laws by country, https://en.wikipedia.org/wiki/Marital_rape_laws_by_country
- Swarati sabhapandit, criminalizing marital rape in india, https://www.theindiaforum.in/law/criminalising-marital-rape-india#:~:text=Section%20375%20of%20the%20Indian,fifteen%20years%20of%20age.%E2%80%9D%201