marital rape
source: https://indianlegalsolution.com/

ABSTRACT

Rape under the Indian penal code is defined under section 375 which says any sort of unlawful sex with a woman against her will or her consent is covered under the definition of rape. Marital rape on the other hand is explicitly denied to be covered in the section of rape, Marital rape basically means having sexual intercourse with the spouse against her will and consent. we all are aware that we Indians have a patriarchal society in which women are constantly dominated by men same way taking into consideration the concept of marriage it is evident that women are treated as the property of her husband and he has every right to do anything with her wife from treating her like his servant or assuming her as their sex objects even though she consents for that or not that doesn’t really matter.

This concept was first observed by sir MATHEW HALE in his book HISTORY OF PLEAS AND CROWN which basically talks about implied consent of women and says “but the husband cannot be guilty of a rape committed by himself with her lawfully wedded wife she had made an implied contract for all of these things which she cannot deny later on”.

Keywords- patriarchal, consent, implied sexual intercourse, marital rape.

INTRODUCTION

This is the thinking of our society that if the women are married to a man then the man has every right to have sex with her even if she disagrees and in our personal laws, it is very evident that sexual intercourse is an important aspect to be called it as a valid marriage and that marriage has given the husband implied consent of women to rape her. Is this justified? On one hand talking about the right to dignity given to us by the Indian constitution, right to privacy as per article 21 these all articles are violated as our basic fundamental rights are infringed. Before marriage treating the women as the property of men and after marriage, she is treated as the property of her husband, why is her identity hampered in every case, her personal stand, her will, her consent?

Marital rape doesn’t only causes physical injuries rather it traumatize women which can cause her to go into depression or some sort of inferiority complex may occur, she will not be able to raise her voice in the society because of terror, that she has no identity of her own and for her case marriage is all about giving sexual satisfaction to her husband even if she doesn’t consent to it. Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, problems in establishing trusting relationships, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors had mentioned that they still face sexual dysfunctioning of hormones, and emotional trauma for years after the offense has been committed.

Many countries keeping in mind the above challenges have criminalized it but  India in this case is still struggling to criminalize it. It has already penalized the marital rape in a case where the women are below 15 years of age but the marital rape in other cases is not at all dealt with within the definition of rape under section 375 of the Indian penal code.

 LAWS FOR MARITAL RAPE IN INDIA

In India there are no such laws for rape inside the marriage by own spouse, marriages in India is treated as holy and everything done in marriage are also holy even though it is sex without the consent of her wife it will not be covered in the ambit of rape only the rape without the consent of the women who is below 15 years is covered under section 375 of IPC and its punishment is given under section 376 of IPC which says if unlawful sex occurs without the consent of women by a stranger that person will be imprisoned for not less than 7 years which may extend to 10 years and fine and in case of marital rape of women under 15 years a person is entitled to the imprisonment of 2 years or fine or both.

But there are certain guidelines given under women protection act of 2005 that if the women are raped by her own husband she can file a case for that on that basis this can be taken a ground to get separated from that husband it is kind of treated as domestic violence  But this is not enough proper laws should be introduced in the protection of these women. This exclusion is the complete bias of law in which our society is basically running as per male dominating females in every aspect of life, we agree with the fact that marriages should be treated holy but women are treated like a goddess in our country then why not treat her like same.

Rape violates the fundamental rights of the women then why criminalizing it is still a big agenda.

In 2016 Maenka Gandhi states that marital rape unlike in other countries cannot be criminalized here the reasons for that here is in our country marriage is treated as a religious sacrament and because of this reason people treat marriages as holy and this is the reason because of our society, illiteracy, poverty is the basic reasons why marital rape cannot be criminalized in a country like India.

 CASE LAWS

 Sex without the consent is violating the fundamental rights of these women which may include right to dignity as this is not explicitly covered in the Article 21 but the Supreme Court in the case of Bodhisattva Gautam v. Subhra Chakraborty, The court, in this case, held that rape is a crime which is basically against the basic human right and hence is violative of fundamental right to live with dignity which is given by article 21 of Indian constitution and causing harm to women’s body by force without her will and her consent is infringing her right to live with dignity and right to life.

 Kharak Singh vs. state of Uttar Pradesh 

 The supreme court, in this case, stated that right to privacy is covered impliedly under article 21 of Indian constitution and treating women as a sex object and taking about marital rape perspective and its exclusion from rape makes a lawfully wedded wife as an object of sexual intercourse of which she is not even willing or giving consent, this is how her life to privacy is violated as per article 21 of the Indian constitution.

 Vishakha vs. State of Rajasthan

In this case, the supreme court held that sexual harassment at workplace is also penalized and right to privacy plays an important role in the working environment also so by this we can easily conclude that constitution has given enough right to protect the interest of the women and her dignity then keeping marital rape as an exception and not taking it as rape is still not justified. Women are women whether she a lawfully wedded wife or a minor or a young girl everyone’s right should be protected by law.

 State of Maharashtra v. Madhkar Narayan

 In this case, the Supreme Court held that raping a woman violates her right to privacy and she is entitled to her sexual privacy as she is not meant to be available before anyone to violate her privacy whenever the person wants. But the irony, in this case, was this case was not applicable in the case of marital rapes. When a woman is raped by a stranger then her right to privacy is violated but when a married woman is raped by her own husband then what about her privacy? We always talk about the right to equality but then what happens in this case.

 Shree Kumar v. Pearly Karun

In this case, the women went to live with her husband during the procedures of the partition was going on where at that time she was raped by her husband but the court, in this case, does not treat the same case as under rape and held husband not liable for raping her wife and states that the couple is likely to have sexual intercourse at the time when all the process of separation is taking place and the women are liable for sex even if she is not wanting so. Keeping in mind these points the husband was not charged under rape.

 Nimesh Bhai Bharatbhai Desai v. State of Gujarat

The supreme court in this case held that “a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent.”

Later it was stated that whether the husband who had done forceful sex with her wife in this present case can be persecuted under section 498A of IPC or not the respondent in this case

Claimed that a “the case at hand is one of the non-consensual act of violent perversion by a husband against the wife where she was abused physically and sexually”

Therefore, in this case, the court held that neither the husband will be liable for unnatural sex as per section 377&376 nor as per section 498A at the time of marriage the women are giving implied consent for having sex with her even without her will, therefore, it was held that husband under marital forceful sex will not be held liable.

  CONCLUSION

Marital rape is not criminalized here in India; it is wrongdoing which is prevailing in the Indian society. At every point from history, it is evident that women have been struggling for their rights from coping up with sati pratha to being the slaves of the king women have been the most underprivileged section of our society. After so much progress and achievement, our country still presents a dismal picture when it comes to the thawing dignity of women. Women in this country are always taken for granted even if we are given equal protection by our constitution then this discrimination of the age group or marital status is it justified? Whether rape is committed against a minor, or adult, or a male or married woman it will be considered as rape only which is a very heinous crime and that violates the dignity of women.

Worshipping a girl like a goddess on one hand and treating her like an object what an irony it is. The main reasons that came across for this type of crime involve proving that wives are always inferior to the husbands, proving their masculinity by applying force, sometimes because of the inability to bring dowry at the time of marriage and most importantly because of consumption of alcohol.

No one can ever wonder what happens to the mindset of these women they are haunted by such thoughts again and again, and if struck for a very long term we cannot even imagine what will happen to her because of which most of the women to get rid of this, she either ran away or commit suicide do we really feel committing suicide is the end of this paradox that we are stuck in? No, absolutely not every woman deserves protection, every woman has dignity and has privacy to decide what she wants and what she doesn’t. Marriages no doubt play an important role in our lives and treating it as holy is a good thing but really to this extent? I don’t feel categorizing them and then treating them before the law is a very good idea.

Therefore; it is a need of an hour now to have separate laws just and equitable for marital rape in India. 

RAPE IS RAPE WHETHER OF A GIRL OR OF A MARRIED WOMEN AND CONSENT SHOULD BE VALUED IN EACH CASE IF SHE IS NOT CONSENTING TO A PARTICULAR ACT THEN THAT MEANS “NO” TO IT.


Author:

Malika Lalit Malika Lalit | UPES, Dehradun

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