MARITAL RAPE: THE BITTER TRUTH
Author: Akanksha, A Student at Amity University Jharkhand
ABSTRACT
In India, there is a shameful crime known as marital rape, which has damaged people’s faith in the institution of marriage. The majority of those affected by the practice’s non-criminalization are women. The definition of rape in Section 375 of the Indian Penal Code is an exception. The practice of marital rape is highlighted in this essay, along with its complications and a human rights viewpoint. This paper examines the suggestions put out by several civil society groups to change the relevant section of the I.P.C. to make the same a criminal offence. The 172nd and Justice Verma Committee reports, two significant committee reports, are also examined in this study.
INTRODUCTION
When a man has undesired sex with his wife “by force, threat of force, physical violence, or when she is unable to give consent,” it is referred to as marital rape. It is a violent act of perversion committed by a husband against his wife, wherein the wife is subjected to physical and sexual assault without consent.The three types of marital rape listed below are typically common in society:
Rape with battering: Women who encounter this kind of marital rape are subjected to numerous forms of physical and sexual abuse in their relationships. In certain cases, the rape may occur after a physically violent incident in which the husband seeks to make amends by forcing his wife to have sex against her will. In other cases, the wife may be beaten during the sexual abuse. Most of the time
Force-only rape: Husbands only use as much force as necessary to coerce their wives in this sort of marital rape. In these situations, abuse may not be a defining feature, and women who decline sexual relations are typically the targets of such attacks.
Obsessive rape: Most attacks in this type of abuse are violent and entail severe torture as well as/or deviant sexual practices. Sadistic rape is another term for this kind of crime.
HISTORY
In the past, society largely accepted marital rape. It was not made illegal by the legislation and was instead disregarded. Many communities today reject it, and numerous international accords and treaties denounce it as well. Because these problems were not given the proper attention, problems like domestic and sexual abuse in marriages were not acknowledged as real. It began to exist in the latter half of the 20th century and has drawn a lot of attention from around the world. Marital rape is still not considered a crime and is not covered by the law in many nations, however.
Until the early 1960s, conventional beliefs about marriage and sexuality were unquestioned. Western thought began to question these notions, and the feminist movement carried this forward even farther, resulting in the recognition of women’s autonomy. It implied that women would no longer be eligible for the married couple’s exemption and would instead have complete autonomy over all matters pertaining to their bodies. At the end of the 20th century, most nations made marital rape a crime and permitted the prosecution of those who committed it. The process took many different forms, such as the elimination of legislative definitions of rape exemptions, court rulings, and clear legislative references in statute law that forbade the use of married status as a defence or the creation of a unique offence for the conviction of marital rape. But for a variety of reasons, including the sanctity of marriage, a lack of understanding, and the unwillingness of the government to prosecute the guilty, the crime is not enforced in our society.
INDIAN PERSPECTIVE
Marital rape occurs in India de facto but not de jure. Although the Indian legislative is reluctant to make marital rape a crime, the judiciary has contributed to the recognition of this crime’s existence and its pervasiveness in Indian culture. The Supreme Court stated that “rape is a crime against basic human rights and a violation of the victim: most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution” in Bodhisattwa Gautam v. Subhra Chakraborty. Nonetheless, the same court disregarded the ruling by refusing to acknowledge it as illegal. With the passage of the Domestic Violence Act, Indian law on domestic abuse has advanced; nonetheless, the legislation has focused mostly on physical abuse rather than criminalising sexual abuse of victims of such crimes. Marital rape is protected from prosecution under Section 375 of the Indian Penal Code, which means that women who want to report sexual abuse in their marriage but are prevented from doing so are denied this opportunity.
The Indian government claims that while marriage is revered in India, marital rape is not permitted. Haribhai Parathibhai Chaudhary, the minister of state for home affairs, declared that marital rape could not be criminalised and added that there is no plan to do so. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,” stated Chaudhary. In response to a query posed in the Rajya Sabha by D.M.K. M.P. Kanimozhi, he responded. Inquiring about the government’s intention to propose a bill to change the Indian Penal Code (I.P.C.) and eliminate the exclusion of marital rape from the definition of rape, Kanimozhi addressed the Home Minister. She also inquired as to whether India should make marital rape a crime, as suggested by the UN Committee on the Elimination of Discrimination Against Women. Chaudhary denied that such an amendment was proposed and said that “The Law Commission of India, while making its 172nd Report on Review of Rape Laws did not recommend criminalisation of marital rape by amending the exception to Section 375 of the Indian Penal Code and hence presently there is no proposal to bring any amendment to the I.P.C. in regard” .
Following suit, the Supreme Court rejected a woman’s request that marital rape be made a crime, stating that the lady was pleading for a “personal cause and not a public cause.” The Delhi-born executive was subjected to frequent sexual abuse by her spouse and was raped during their marriage. But since the Indian Penal Code makes no mention of it, the incident could not be reported.
LEGISLATIVE PROVISIONS
The Indian Penal Code’s Section 375 contains the section on rape. Regarding the exception to Section 375, which states that “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape,” the section is incredibly antiquated.According to Section 376 of the Indian Penal Code, rape is punishable by any type of imprisonment for a minimum of 7 years, a maximum of 10 years, or both. There may also be a fine associated with the sentence. The only exception is if the victim of the rape is his own wife and she is not less than 12 years old. In that instance, he faces a sentence of either type of incarceration, which can last up to two years, along with a fine, or both. The definition and penalties for rape were significantly altered by the law. However, the old provision that disregarded forced sex within marriage in the definition of rape remains in place in the Indian Penal Code (I.P.C.). In reality, it specifically stated that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The wife’s human rights are being directly violated by the lack of legal protection provided to her. However, Section 376-A, which states that “if a man has sexual intercourse with a wife, living separately after a legal decree, but without her consent, he shall be punished with imprisonment ranging from two to seven years in addition to a fine,” partially undid the harm caused by keeping the exclusion in place. Feminists, who support the punishment of marital rape and believe that its omission is unacceptable, have not been satisfied by this, nevertheless. Though article 376-A attempts to alleviate the worries and anxieties associated with women living apart, it is ineffective for women who endure everyday hardships inside the confines of a lawfully recognised marriage. Change is required to the definition of rape itself. Globally, women’s organisations and feminists have denounced the restrictive definition, arguing that it would not have conflicted with any anti-constitutional clauses, natural justice principles, or equity to include oral sex, sodomy, and penetration by foreign objects under the definition of rape. Marital rape is specifically included in the definition of violence against women in Article 2 of the Declaration on the Elimination of Violence Against Women. It is impossible to overstate the significance of permission in every single decision. It is odd that a woman can defend her right to life and liberty while being married, but not her physical health. The I.P.C.’s section 498-A, which addresses cruelty, is the only legal tool available to women to protect themselves from “perverse sexual conduct by the husband” thus far.
As per the Domestic Violence Act of 2005, there is no criminal penalty for sexual violence. The Court has the right to summon the spouse for a hearing after receiving a complaint from an irate wife. He is given a fair and unbiased hearing, and as soon as he is heard, the mediation process starts. The parties are given a chance by the court to resolve their differences amicably. In the event that the mediation fails and the complaint is found to be real and authentic, the court may issue a protection order compelling the spouse to change his behaviour. The Court’s orders are legally binding and cannot be disregarded. The wife is entitled to file a complaint about the order violation with the court.
Such a violation usually carries a jail sentence, and the police may be called in to assist with the same. However, the process continues to be an ongoing civil case involving the accused, the victim, and the court. This suggests that even in the unlikely event that the husband’s accusations are validated and he is found guilty, he will only be found guilty of domestic violence, for which the penalty is significantly less severe than that of rape. The definition of domestic violence under Section 3 of the Domestic Violence Act includes, among other things, any act that causes harm, injury, or anything that puts one’s life, health, or sexual orientation in jeopardy.
It allows for the acceptance of sexual abuse in marriage or cohabitation and only criminalises it when it poses a serious risk to one’s life or causes great pain. As a result, the Domestic Violence Act does not uphold the honour and dignity to which every woman in a marriage is entitled, nor does it take into consideration crimes such as Marital Rape.
JUDICIAL DECISION
Judge Kamini Lau of Additional Sessions held—in a move that is much needed—that it is hypocritical to deny the existence of marital rape. In several instances, she emphasised the necessity for legislation to treat marital rape as a severe offence while refusing bail to a man who was suspected of raping his wife. “In India, a country built on the foundation of equality, non-recognition of marital rape is gross double standards and hypocrisy in law, which is central to the subordination and subjugation of women,” the speaker stated. In the particular instance, the woman endured harassment while her spouse snapped pictures of her in her pants in addition to being forced into unnatural intercourse.
However, the guy asserted that his wife had falsely accused him in order to cause discord within the family. The court stated, “The physical and psychological damage caused to the complainant, a young girl married for hardly eight months, on account of this abusive relationship is unimaginable and hence calls for indulgence to the accused whose application for grant of bail is hereby dismissed,” taking note of the woman’s eight-month marriage. The judge went on to say that a woman has complete control over her body and that speaking out against marital rape and other inappropriate sexual behaviours is an essential first step towards achieving gender equality.
CONCLUSION
In conclusion, it may be claimed that the answer calls for a more effective application of the law rather than rejecting the much-needed amendment out of concern that society will misuse it. The most significant issue facing our society is how laws are applied, so rather than being used as a tool for harassment, laws must be put in place to protect those who are abused in marriage. Police must conduct appropriate and comprehensive investigations in order to distinguish the serious crimes from the trivial ones. Legal protection and the necessary relief are due to marital causes.
