Marital Rape:Is it legal for Indian men to rape their wives?

Author- Varshini Kashyap, 2nd Yerar, UPES Dehradun

INTRODUCTION

There’s a saying that a woman worth can change the whole world but what when a woman dignity is repeatedly tarnished and she is dominated and not given the freedom to speak for her dignity or to take a stand for herself just because of her sex and many a time because she is married.

According to the National Crime Record Bureau (NCRB), 2018 RAPE stands as the fourth most exploitative transgression of the law that is done to a woman. The definition of rape is codified in section 375 of the Indian Penal Code (IPC) which includes all forms of sexual assault against women.  However, exception 2 of Section 375 says if a man has sexual intercourse with his own wife, the wife not being under fifteen years of age is not considered as rape. As per the current law, a wife has to give consent to have sex with her own husband. While an unconsented sexual act is considered as an act of crime in many nations. Indian is one in the list of thirty-six countries which has not criminalized marital rape.

WHAT IS MARITAL RAPE

When a husband forces himself on his wife for sexual intercourse without her consent, it is considered as marital rape. In some country, it is already an offence but India has not yet criminalized it because it destroys the purity of marriage and Indian culture. But this disgraceful offence has already scarred the trust and confidence in the institution of marriage. Exception 2 of section 375 says a wife is considered as an exception. Why there is total discrimination between a married woman and a non- married one?

Under this following condition marital rape is considered a crime –

1.When the wife is below fifteen years of age.

2.When there is forced sexual intercourse between men and women when they are living separately on account of judicial separation under section 376-A.

 Apart from this marital rape can be put into different categories –

  1. non – physical sexual coercion :

here no physical force is used against the wife because she tends to believe that it’s her duty to fulfil her husband’s needs even when she is not willing to as he has control over her after marriage.

  1. Threatening and force–

Here physical and verbal abuse is seen. if the wife does not give her consent to her husband then she is subjected to violence .violence and threats are mainly used to coerce the wife.

 In India marital rape is still not considered a crime even it violates the fundamental right of the women .Does woman has no fundamental right after marriage or she has no freedom to speak against the injustice she is facing in her marriage. Marital rape violates the two most important fundamental right which is article 14 and article 21 of the Indian Constitution.

Violation of Article 14-

Article 14 ensures that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This means the constitution of India provides equality to all and does not discriminate on the basics of gender.  Though constitution guarantee equality to all but exception 2 of section 375 of IPC  discriminates against a female victim who has raped by her own husbands by not providing the wife with protection, Article 14 of Indian constitution is being violated here as a wife is not getting equal protection of the law.

Violation of Article 21-

Article 21 says that no person shall be deprived of his life and personal liberty except according to the procedure established by law.

It also includes that a person has the right to live with human dignity. Over recent years, as evolving contexts, Supreme court has extended Article 21 beyond the literal guarantee to life and liberty and includes the rights to health, privacy, dignity, safe living conditions and safe environment, and continuous internet among each other.

In Justice K.S. Puttuswamy (Retd.) V. Union of India

Here Supreme Court recognized the right to privacy as a fundamental right which also includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relation “.

In Suchita Srivastava V. Chandigarh Administration

Here the Supreme court gave the judgment that right to make choices about sexual activity and is within the scope of the right of personal liberty, privacy and dignity, and bodily integrity under Article 21 of the Indian Constitution.

In the above given famous judgment, the supreme court says that every person has the right to live with dignity, privacy, and bodily integrity when why a married woman in Indian is not given the right to live with dignity and bodily integrity. How can a wife live with dignity when she is being raped by her own husband? Here we can see exception 2of Section 375 violates Article 14 and 21 of the Indian constitution.

Why is Marital Rape is not considered as a crime in India

In India Marital rape is not considered a crime, it is seen as something that happens behind closed doors. In India marriage is considered a sacred contract between husband and wife and considering sexual contact between them will destroy the purity of marriage and Indian culture because all these are considered as western and modern thinking. According to Indian culture, when a woman is married she is considered as a property so it’s her duty to fulfill the needs of her husband with or without her will otherwise it should destroy her marriage. when a woman is married it is assumed that she has given her consent to indulge in sexual intercourse. she has no right on her and no right to show her willingness to her husband after marriage as she is considered his property. If she tries to stand for right then this may lead to destroying her marriage and the purity of Indian culture and marriage. This offense is also not being criminalized because it is difficult to prove consent in case of marriage. As it is difficult to prove the consent it can be used to take revenge from the husband by falsely accusing the husband. These are the loopholes but every law has someone loopholes, these loopholes can not be taken as an excuse for not making this offense as a crime. In the end, marital rape is a crime and should be criminalized. And consent of women is important and it should not be belief  that once she is married she has given her consent. If she is a victim of rape by her husband she should be given protection. Marital rape is a valid ground for giving divorce and its punishment should be equal as rape. Its time to consider marital rape and any other rape equal. It’s the need of the hour to maintain equality between men and women by giving women their right to speak against this. It’s time to criminalize this as an offense.

   

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