Marital Rape in India
The question or debate in society today is what marital rape is and whether it should be criminalized. To understand it, you have to separate marital rape into two words. Marital and rape. Marital means relating to marriage or relations between a couple. Rape means that a man or a woman is forced to have sexual relationship with another person.
Marital Rape is an act of sexual intercourse with one of the spouses without the consent of the spouse. Lack of consent is essential and does not necessarily imply physical violence. Spousal rape is considered a form of domestic violence and sexual abuse. Although historically, sex during marriage was considered a right of the spouses, but the practice of this act without the consent of the spouse is now prohibited by many societies around the world. classified as rape, rejected by international conventions and increasingly criminalized.
The issue of sexual and domestic violence in marriage and the family, and more specifically the issue of violence against women, has received increasing international attention since the second half of the 20th century. However, in many countries, marital rape is still outside the criminal law or is illegal but widely tolerated. The law is rarely enforced, due to factors ranging from authorities' reluctance to prosecute criminals to the public's lack of understanding that marital sex without consent is illegal.
Furthermore, marriage or family dispute is considered a private family affair in India, but it also violates a woman's right to physical protection when living with her husband or even sometimes with her husband. his wife. She became a victim of domestic violence. Domestic violence is one of the most common types of violence against women after marriage, whether physically, emotionally or mentally.
The sad thing about this barbaric crime against a woman is that even though the family knows about it and advises to stay, very few people show up to report it and we often end up losing an innocent soul. It destroys a woman's mental health in all these matters, she is hurt day and night, for weeks, for months, being judged by society if she takes measures to protect herself or being bullied. considered a woman disobedient to her husband.
A woman's basic rights are violated because of abuse by her husband. Articles 14 and 21 of the Indian constitution provide for equal rights and equal protection for all citizens and the right to life and individual liberties respectively. Some men think that the person they marry is their property, however, women are not private property because women have rights just like everyone else.
The decriminalized nature of rape in marriage dates back to British times. Spousal rape is largely influenced by and rooted in the doctrine of combining the identity of the wife with the identity of her husband. When the IPC was established in the 1860s, a married woman was not considered an independent legal entity.
The marital exception to the IPC definition of rape was drawn up on the basis of Victorian patriarchal standards that do not recognize men and women as equals, do not allow married women to own property, and unify the identities of husband and wife under Cover Doctrine. Rape of husband and wife violates the equal rights enshrined in Article 14 of the Constitution of India.
The exception creates two categories of women based on their marital status and excludes actions committed by men against their wives. In doing so, the Exception could fall victim to married women for no other reason than their marital status while protecting single women from similar practices. The purpose of Article 375 of the ICC is to protect women and punish those who engage in inhuman rape.
However, exempting husbands from punishment is completely contrary to this objective, since the consequences of rape are the same whether a woman is married or not. In addition, married women may actually have a harder time escaping domestic abuse because they are legally and financially bound to their husbands. Today, worldwide, India is among the 36 countries that do not criminalize marital rape. Countries that have not criminalized marital rape are largely developing nations/ethnicities.
In the match of Nimishbhai Bhartibhai Desai vs State of Gujarat 2018, the question was raised as to whether a husband forcing his wife to perform oral sex is considered rape and should he be punished according to this article. 376 ICC? The court has accepted the file and said that our country has never considered rape as a criminal crime. Since politicians fear it destabilizes the institution of marriage, women can also use it to act against their husbands and bring false accusations against him.
Spousal rape cannot be invisible under the law because it is equal to the rape of a husband against his wife, so if a husband assaults his wife, he will be punished under the ICC for assault, but if The same husband raped his wife. to engage in sexual relations, he would only be liable for assault within the framework of a valid marriage and not for rape.
How fair is it, when a married woman is raped by her husband and he is punished for assault, not rape?
A survey can tell how long a woman has been raped, but it cannot tell us what she has been through in the past few days, months or sometimes even years. Even if a husband does this once, it is a crime against his wife that he must protect and must not endanger her life, damage her dignity, or degrade her in any way. any form. He must be punished for the action he did to a human body.
We cannot fully measure the damage (physical and mental) he has caused and no one can compensate for these acts. We must support these women because not all suffering women decide to speak up about their abusive relationship. As respected citizens of India, we must help her, comfort her, guide her and do so to protect another woman. Although we now know that in India legally separated women are protected by Indian law under separate laws, married women also need protection.
In my view, the second immunity granted under Section 375 of the Indian Penal Code 1860 should be removed by an amendment to protect Indian women from marital rape. It's time for the Indian judiciary to go a step further and deliver a historic verdict on marital rape.