Introduction

Marriage a social institution in most of the religion is considered as equivalent to a contractual bond with the essence of sanctity. Legally a contractual relationship implies a set of obligations upon parties and so does this contract, it includes a set of duties and rights upon both husband and wife. Marriage as a contract leads to parties having conjugal rights which include the right to have physical relation with their partner, and when abstaining from such rights; its restitution can be initiated under the specified law in which they married. With defining marital bond and now further diving into what is marital rape? It is also essential to understand the arguments placed in its defence and against it.

About Marital Rape

At any time and any given condition, intercourse among the individuals has prerequisite fulfilment of consent and such consent may be through implied or expressed and in the above-given relationship, it is the notional idea of an implied consent obtain through marital contract. But when two lawfully wedded individuals have sex where one has not given consent for that particular engagement; then the person who was forced into such is termed either as victim or survivor of marital rape. In short, it’s non-consensual intercourse with the person you are married too.

Why is the word ‘rape’ added?

The word rape is added as it includes the absence of consent. Apart from the suffering of the aggrieved party what further needs to be mulled, is that marital rape as a crime is clashing with the definition of rape, as rape is an abuse of body without consent but in marriage, there is already an implied consent.

Need for protection against Marital Rape

There lies contrasting argument between conjugal rights v/s human right, but many nations have deserted the conjugal argument and devalued it by legislating protective laws from marital rape, and further criminalized it. The need for the criminalization of non-consensual marital sex is to protect the dignity and at any juncture. A partner should not be subjected as the property of the other and be compelled by a bond. Well, the Indian judiciary played a key role and has noted that forced sex in violation of the fundamental right and “Right to abstain” from sexual intercourse is a recognized principle in Indian Constitutional jurisprudence – Govind v. State of M.P[1]

History of marital rape

Further marital rape is also known as spousal rape is not a new-born occurrence but this crime is a child of the early 1800s. Etymological the term victim of marital rape can be used by either partner, male or female. But the Socio-historical trajectory has been portrayed from a women’s perspective. Well, it is an established fact that women are and have been more vulnerable to be a victim of such crime and in India where patriarchy is in dominance; such unnecessary predominance has invaded private space, were domestic oppression is the first step towards marital rape.

Morton Hunt an American psychologist who is considered as one of the first to engage with the issue of marital rape links patriarchy with marital rape and states, “A typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives[2]. House-wives are most vulnerable in comparison to an earning wife. Well, the concerning issues lie when the majority of Indian socio-cultural societies fail in recognizing such happenings.

Pressure from governmental and non-governmental organizations

The woeful part is that being a victim of marital rape has been normalized. And, the required quantum of response in countering such is in its brewing stage. However, the harrowing narrative is that the law of the State is a replica of its social norms. The Indian legislative body has been functioning as a perfect epitome. It has not yet drafted special protective laws despite numerous requests from governmental and non-governmental bodies. The parliament has been deaf in hearing protest voices.

Legislative Discussions

During January 2018, the Women and Child Development Minister said, “The crime (referring to marital rape) and the very idea of it cannot be suitably applied in the Indian context”. Also in Aug’, 2019 Former Chief justice- Deepak Misra said, “I don’t think that marital rape should be regarded as an offence in India” [3]. Such statements are rhetoric in nature and with failure, in recognition of such inhumane act the government has not published any specific data on marital rape but National Family Health Survey–4 (NFHS) [4]reveals disturbing statistics about spousal violence.

It shows that 31% of ever-married women have experienced physical, sexual, or emotional violence at the hands of their spouses. The inclusion of sexual violence itself indicates a massive presence of marital rape. Such a toxic relationship drains down the mental health of women, setting her in the pathway for depression, anxiety, and incidents of suicides that have also been reported.

The current scenario

Further, Equality Now an international non-government body reports that every 3 seconds an Indian woman is raped by her husband[5]. Also on a global scale, India stands among 36 countries that have not criminalized marital rape[6]. The task of eliminating the happening of crime starts with conceding it and for the same purpose, a recommending body framed for the revival of criminal jurisprudence was formed which was headed by former CJI- Justice Jagdish Sharan Verma. The committee had noted in its report that marriage or any other intimate relationship between a man and a woman is “not a valid” defence against sexual crimes like rape[7]. This report wasn’t vocal enough for a change and criminalization of marital rape seems to be a distant dream.

The need for legislative change

Until legislative change occurs, the onus of countering in way forward lies upon societal element. They have to be ardent with their approach but first. In other words, there needs a cogent change in mentality. According to NHFS-4 – 52% of women find violence over them by their husbands as justifiable. Submission of thyself to the oppressor as part of fate is the reason which normalizes this illicitness. It not only encourages the slaughterers of women’s right to continue within household space but motivates them to commit such in a social environment.

Education for man

Well, a man needs to be educated through the academic curriculum which should inculcate civilized behaviour towards women. The root that encourages marital rape is dug deep into our society. And, its uprooting is through education, awareness, and legal framework. Absence in government’s aid has anchored the activist, who now needs to be more vocal and influential. It will be a herculean task to bring forth a change in the rate of marital rape.

Challenges for law and order

Further, the challenges of law and order need to be comprehended as it is crime occurring in personal space and for police personal investigating it will be no-less than interfering in marital affairs which the society prohibits and so does the law under Section-122 of Indian evidence act,1872 (privileged communication)[8]. Also, incidents have reported of policemen having a lenient approach in such matters but the pressing matter is that the available law allows a victim of marital rape to file a charge sheet under domestic violence but not under rape, the annihilation of a victim’s dignity needs to be quantified with appropriate jurisprudence as a rapist degrades and defiles the soul of the survivor.

Also, there is a significant wave of those against the criminalization of marital rape. They have beliefs that terming non-consensual marital sex as marital rape will destabilize the institution of marriage. The question–of–how will be the presence/absence of consent be determined? And emerging discourse seeks that labelling such act within the ambit of rape will deteriorate the relationship of marriage. These arguments are flavoured with misogyny, which some might find it logical and rational.

Conclusion

Framers who’ll draft piece criminalizing marital rape needs to acknowledge that there will be voluminous false cases against men, they’ll be a frequent target of legal harassments and few women will also use such law as a tool to blackmail for pecuniary and materialistic gains as same was seen under IPC Section 498A [9](domestic violence).

With not under-estimating the downsides of the law, its maker needs to draft criminalization of marital rape at the earliest. While minimizing the crime, the role of social activists will have limitations. Moreover, there is a need for state mechanisms to draft a reliable and sympathetic mechanism. Therefore, criminalizing marital rape is not about the State curbing conjugal rights, but it is about ensuring that the principles of consent, dignity, and autonomy, apply as much within the bedroom as outside.


Author:

adhikar emmanuel premier Adhikar Emmanuel Premier | G.J Advani Law College, Mumbai University


References

[1] Govind v. State of M.P AIR 1378 SC  (1975)

[2] Morton Hunt, “Legal Rape,” Family Circle (January 9, 1979), p. 38.

[3] https://theswaddle.com/marital-rape-inda-decriminalized-crime/

[4] http://rchiips.org/NFHS/factsheet_NFHS-4.shtml

[5] https://www.equalitynow.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be

[6] Harvard Human rights journal- Marital Rape: A non-criminalized crime in India , https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/

[7] https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary

[8]  Indian Evidence act, 1872 S- 122. Communications during marriage.—No a person who is or has been married shall be compelled to disclose any communication made to him during the marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication.

[9] Indian Penal Code, 1860- S.498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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