Author: Shanmayie Natchiyar M
College: Symbiosis Law School, Nagpur
Course: BA.LLB
Introduction
In India one of the most spiciest, contentious and deeply debated issue in terms of legal and moral perspective is Marital rape – Any non-consensual sexual act by a spouse. Irrespective of any advancement for the rights of the women, still India has never criminalised Marital rape which questions the standard of the international human rights and the feminist movements. This article is all about legal developments, social attitude and the ethical consideration.
Legal Landscape: The Exception in the Law
In Indian Penal Code ( IPC ), Section 375 says, rape, includes an exception: sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Which is very evident that this section legalizes marital rape for adult women where it very easily gives immunity in the prosecution for the husband where the sex is non-consensual.
Section 375 of the Indian Penal Code (IPC), which defines rape, includes an exception: sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. This clause effectively legalizes marital rape for adult women, giving husbands immunity from prosecution even in cases where sex is clearly non-consensual.
After the incident of Nirbhaya gang rape case, Criminal law amendmentact2013 was brought which expands the definition of rape and introduced penalties which are stricter than before. But decision regarding the marital rape was retained as exception. Law commissions and legal committees has recommended to revisit this provision, but there was a lack of action taken by the legislative due to the complexities in cultural, political and logical complexities. In contrary, Marital rape was criminalized in countries like UK, USA and many other countries right from when there was a recognition that marriage did not apply on blank consent.
The Legal Argument for Criminalization
- Violation of Fundamental Rights:
The concept of marital rape clearly violates all the three.
Article 14 of the Indian constitution guarantees the right to equality.
Article 21-right to life and personal liberty.
Article 15- Right against discrimination
- International Obligations:
To several international conventions like the convention on Elimination of All forms of Discrimination against women CEDAW India is signatory, All the international bodies and countries urges India to criminalize the marital rape, as the acceptance leads to the violation of human rights of the women.
- Consent is Universal:
The basic fundamental aspect for having any relationship and act is consent. Irrespective of any act consent is the foundation for the performance. Also in terms of sexual interaction consent is the bedrock. No marriage can nullify or grab the women’s autonomy or right to her bodily integrity. If the same act happens outside of marriage it is treated as rape but when the same thing happens in the institution itself, that is marriage, It is not criminalised and the legal sanity of the marriage should not make the same act legitimize within it.
- Judicial Recognition:
The Indian courts have started to recognize the depth of marital sexual violence. In the case of Independent thought V. Union of India 2017, there is an exception for the girls who are aged between 15to 18, says the Supreme Court. And recognized it as Unconstitutional. This has been set as the precedent to challenge the broad exception for married women.
Counterarguments and Legal Challenges
If we think of criminalizing it we should also think the other aspects as well.
- Threat to the Institution of Marriage:
In the aspect of law and the courts, everything needs an evidence. So one of the basic argument to stand against criminalizing it is that it could destabilize the the institution of marriage and leads to surge in false accusations, like there are huge possibility of using it as a weapon in matrimonial disputes.
Marriages and lead to a surge in false accusations. Detractors argue that it may be misused as a weapon in matrimonial disputes.
- Difficulty in Proving Non-Consent:
In general rape cases, somehow or the other we can obtain the evidences like injuries and witness may help to claim, but relationship in the institution of the marriage is very private where evidence or the proving possibility is complex. So the critics argue that this legal dilemma or ambiguity would leads to burden the court for the falsely accused.
- Cultural and Religious Norms:
People still tend to rely on old norms just like society being so patriarchal which leads to a scenario that when it got criminalizes people could not accept it. Also in many communities, when women refuses for the sex it is been considered as a taboo or an alien thing.
The Moral Argument: Autonomy, Dignity, and Equality
- Bodily Autonomy:
Every individual has a sovereign right to make decisions about their own body. There is no imply consent to anything just because a person is married. Regardless of in what relationship a person is, when the limit is crossed, without any consent or sex without consent is a violation.
- Equality in Marriage:
Marriage is a partnership not a practice of slavery. So when the marital rape is being permitted, it indirectly conveys that the rights of the women is always subordinate to the husband and his desires, which is totally incompatible in mordern democracy.
- Moral Responsibility of the State:
The state should protect its citizens, especially the vulnerable. Legal immunity for marital rape communicates that certain violations are acceptable in the private sphere, perpetuating cycles of abuse and silencing survivors.
The Path Forward: Legal Reform and Social Change
- Amending the IPC:
The important step is to remove the exception for the marital rape in section 375of the IPC. And a new clause has to be introduced which should recognize any sexual act or violence committed without consent within marriage should be considered as rape by providing safety measures against the misuse, like requiring corroborating evidence or by instituting a special investigation process.
- Public Awareness Campaigns:
Legal reform is important but Legal education is as same as important.
Reforms and education should be accompanied together. People must be made to aware that consent is essential for all sort of relationship especially in schools, colleges workplace, community and media plays an important role in transform such societal attitudes.
- Empowering the Judiciary and Law Enforcement:
When it comes to handling such case judges and police officers need a special training in handling marital rape cases which can promote efficiency and reduces the risk of being ineffective or misapplied.
- Holistic Support for Survivors:
There should be medical, psychological, safe housing support and economic support to the victims or to escape of abusive relationships.
Conclusion
The debate about the marital rape lies in the ground of law, morality and cultural tradition. While on the other hand the concern is all about the fundamental rights being eclipsed for the half of the population. Therefore consent remains the heart and the cornerstone of any sexual relationship which is ethical and for which marriage is not an exception.
India’ s resistance and reluctance to criminalize marital rape clearly shows that we still rely on and following an outdated notion where women are projected as some property or objects and not as an individual who hold authority and dignity. Hence, law must evolve. What has considered a cultural less is now been legalized so the decision regarding the marital rape should also evolve not to punish, but to safeguard, protect, and affirm the just and equality for the people.
