The notion of the sanctified; the lore of marriage core out by the typical Indian films is an allegory and is conflicting to womanhood view of realism. However, it is camouflaged behind the portiere of matrimony but Marital Rape is a very common and offensive system of barbarism in Indian Society. The term Domestic Violence is very common in India. It is one of the deep-rooted problems in India which has aggravated in recent years. In the report, by the National Crime Records Bureau’s (NCRB) ‘Crime in India’, 2019 around 70% of women in India are sufferers of Domestic Violence. One of the demonstrations of Domestic violence is marital rape. Now, what is Marital Rape? Marital Rape or Spousal Rape is an act of having sexual intercourse with the spouse without having the consent of that spouse. It is considered Sexual Abuse. In today’s world, domestic violence or sexual abuse is an act of violence against women that has become a matter of concern.
India is one of the 36 countries in the world where marital rape is still not illegal and is not criminalized by the government. Many Amendments have been done for the protection of women but the non-criminalization of Marital Rape in India eroded the dignity and human rights of women. The first report to address marital rape was 42nd Law Commission Report.
MARITAL RAPE STATUS IN INDIA:
‘Rape’ term is defined under Section 375 of the Indian Penal Code (IPC) which defines rape as all forms of Sexual assault involving intercourse with a woman without her consent. There is an exception of Section 375 i.e. Exception 2 of section 375 which states about the Non-Criminalization of marital rape. However, this exception exempts unwilling intercourse between a husband and a wife over 15 years of age and inoculates such acts from prosecution. According to the present law, there must be perpetual consent of a wife with her husband to have sex after entering into marital relations. The hypothesis of marital rape in India is the archetype of an “Implied Consent”. In a marriage, there must be consent between husband and wife before having Sexual intercourse and it cannot be taken for granted. There can be different types of Marital rape i.e. Battering Rape, Force Only Rape, Obsessive Rape.
MARITAL RAPE: AGAINST LEGAL & CONSTITUTIONAL RIGHTS:
Marital rape is against legal and constitutional rights. It is a violation of many provisions of the Indian constitution. Some of them are:
Violation of Article 14 of the Indian Constitution:
Article 14 of the Indian Constitution guarantees that “[t]he State shall not repudiate to any person equality before the law or the equal protection of the laws within the territory of India.” The Constitution guarantees equality to all persons but Indian criminal law victimizes female sufferers who have been raped by their own husbands. The legal identities and jurisprudence of both husband and wife are now considered independent according to Indian law in the modern era. This apprehension is visible in many cases which try to protect women from violence and harassment that has been seen from the past including “The Protection of women from Domestic Violence Act” and the “Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act.” In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that any codification under Article 14 of the Indian Constitution must pass through a test based on reasonable nexus to the principles that the act seeks to is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to accomplish.
Violation of Article 21 of the Indian Constitution:
Exception 2 of Section 375 of IPC is also a violation of Article 21 of the Indian constitution which talks about the rights to health, privacy, dignity, safe living conditions, and a safe environment. In the case of Karnataka V. Krishnappa, the SC held that “[s]exual violence apart from being a dehumanizing act is an unlawful invasion of the right to privacy and piety of a woman.” In this judgment, it was held that Sexual intercourse without consent amounts to sexual violence. In the case of Suchita Srivastava V. Chandigarh Administration, the SC equated the right to make choices related to sexual activity with the right to personal liberty, privacy, dignity. In the recent judgment of Justice K.S. Puttuswamy (Retd.) V. Union of India, Supreme Court acknowledged the right to privacy as a fundamental right of all citizens.
CAN MARRIAGE BE TAKEN AS A LICENSE TO RAPE:
According to Exception 2 of Section 375 of the Indian Penal Code (IPC), “sexual relations by a man with his wife, the wife not being under fifteen years of age, not considered a rape.” Exception 2 of Section 375 mentions, Marital Rape is not illegal. A study conducted by UN Population Fund gives us data in which more than two-thirds of married women in India, between the age of 15 and 49, have been beaten, raped, or forced to provide sex. It is legal in India to rape a woman if you are married to her. In this modern era, it looks like barbarism in our country. India is such a country where perpetrators of such behaviour move free and even they are punished after a long time when the crime has been committed. This same action we had seen in the 2012 Delhi Gang Rape and Murder case. People think that marriage in India is a way to access the notion of implied consent of women. Now, he is his wife. But, still, her consent plays an important role which is available to her all time. However, not criminalizing Marital Rape in India indicates that the consent of the women community ceases to matter to any sexual activity. It denotes that after the married woman’s body is her husband’s property and her own privacy, her own rights, agency over her body ceases to exist.
CRIMINALIZING MARITAL RAPE IN INDIA: A HALLUCINATION :
In India, the government stands in confusion as to what consider as evidence of proof of rape in marriage, whether criminalizing it would create harassment of men? According to various social thinkers, if we criminalize the act of marital rape then it would amount to sabotaging the system of marriage. Besides this, there is an unwritten law against marital rape and in order to maintain this situation, different courts in India have given a “right to say no to sexual intercourse”. But when this is violated it becomes a crime and its punishment is still under process. Criminalizing such an act must not guarantee security to one gender by seizing it from another. This does not signify that marital rape is not a criminal offence; it is just secured by the rules which are still not codified.
MARITAL RAPE & COVID-19 LOCKDOWN:
Statistics show that between March 25 and May 31, 2020, 1477 grievances of domestic violence were registered by women. A total of 587 complaints were alone registered by The National Commission for Women (NCW) in the first three weeks of the lockdown period. There was a precipitous increase in the number of complaints in the past 25 days between February 27 and March 22. There was an increase in the number of complaints in this lockdown as compare to that of the last 10 years. UP, Bihar, Rajasthan, and Haryana are the most victimized states. The covid-19 pandemic left people confined within the four walls of their houses, escorted by the fright of lack of income, the growing threat of hunger, and an insecure future. Women had to look at both the situations i.e. abusive partners and the virus. Marital or non-marital, rape is rape and the government should make laws to protect women deal with this issue with utmost urgency.
It can be said that marital rape is unlawful and criminalized in many nations of the planet. But it’s not illegal in India and under exception 2 of Section 375 of IPC, forced gender and sex with a wife below 18 years old is rape. India till this era holds its position at the highest in protecting and practising its culture. Though the Indian culture holds the position of a better half under their husband’s will, on the opposite hand, the identical said Indian culture also gives its voice in respecting the dignity of ladies and their consent altogether necessary issues which involve them. Marriage not only involves men but also includes women on the opposite side to balance the ceremony “Marriage”. Thus, we are able to conclude that India recognizes marital rape as a criminal offence but it refuses to enact a correct law and codify the crime.