INTRODUCTION
Even
after the 78 years of Independence, Is the country really free in true manner?
The women of our country are still circumscribed. It is indeed drab
reality that women of our country continue to live under the principality of
wickedness. One on side the land is cherishing the freedom, and on the other
Women are still fighting for their basic rights against “Marital Rape.”
Marital
rape or spousal rape in the main, signify “The act of forcefully sexual
intercourse with one's spouse without the spouse’s consent”. Marital rape is
considered as a form of domestic violence and sexual abuse.
Marital
rape is still a non- criminalized crime in India along with around other 35 countries.
In Indian culture, it is the right of the husband and duty of the wife to have
the sexual intercourse after marriage, with or without the consent of the wife
and the word “Marital Rape” does not have any powerful existence in the culture
of Indian married life.
INDIAN
LAWS CONCERNING MARITAL RAPE
Marital
rape is conundrum for Indian law. As per the latest report published by
the National Family Health Survey (NFHS-5), Marital rape was reported by 30% of
Indian women.
Three
types of marital rape were highlighted: -
· Force
only rape -- The force only rape usually occurs in relationship
where violence is the verbal and primarily in sexual intercourse and husband
uses threats and violence only to the degree necessary to coerce sex.
· Battering
rape -- “Beating and Rape” are combined in battering rape. Husband
abuses the wife psychologically verbally, emotionally, economically and
physically. Even the physical violence continues during sex, and sexual act is
also violent.
· Obsessive
rape -- The most openly sadistic form of rape where the wrong doer
is obsessed with sex and the act itself is violent.
The
matter of question why is Indian law still addled about this? Marital rape is
being penalized by most of the developed countries of world, but on the other
side surprisingly developing country like India does not have any law for
protection of married women against marital rape. According to Home
Affairs Minister- Haribhai Chaudhary – “Marital
Rape cannot be considered as a criminal offense in India because of high
illiteracy rate, poverty, extreme religious beliefs and the very sanctity of
marriage.”
Article
14 of Indian constitution ensures that the state
shall not deny to any person equality before the law or the equal protection of
laws within territory of India. Indian constitution guarantees equality to all,
but when the question of protection of female victims who have been raped by
their own husband arises, Indian criminal law differentiates.
The
fundamental issue is that, although a woman can assert her rights to life and
liberty, she is not given the same control over her own body in a marriage.
In the case of marital rape culprits are punished in offence of assault,
harassment and physical and verbal torture. Women can defend themselves
against such incidents by using Section 498-A of the IPC/ Section 85
BNS, which deals with cruelty.
However, exception 2 of section 375 of IPC which is now Section 63 exception 2 of BNS has made it clear that sexual intercourse by a man with his own wife when she is below fifteen years of age is raped, regardless of fact that it was done with or without her consent. But no man can be held liable raping his own wife when she is above fifteen, that means a direct violation of rights of married women against her husband for the offence of marital rape.
DOMESTIC
VIOLENCE ACT, 2005
The
Protection of Women from Domestic Violence Act, which was passed in 2005,
acknowledged marital rape as an aspect of domestic violence. This Act grants
women the ability to pursue legal redress for rape in marriage. Nevertheless,
it only offers civil remedies, by providing a way to file for legal separation
from a violent partner. The laws and procedures set in place to protect victims
of marital rape are inadequate and fail to sufficiently deal with the
seriousness of the matter as marital rape victims in India are unable to file a
criminal complaint against their accuser.
JUDICIAL
VIEW ON MARITAL RAPE
LAW
COMMISSION OF INDIA
- While considering various
recommendations to change India's laws on sexual violence, the Law
Commission of India denied the necessity to abolish this exception for
marital rape in 2000.
JS
VERMA COMMITTEE
- The Justice JS Verma Committee was
entrusted with recommending changes to India's rape legislation in 2012.
- Although the Criminal Law (Amendment)
Act of 2013 was shaped in part by its recommendations, some of them—such
as the provision regarding marital rape—were not implemented.
PARLIAMENT
- Parliament has also been asked to
address the matter.
- When the concept of making marital
rape, a crime was brought up during a 2015 Parliament session, it was
rejected on the grounds that "marriage was regarded as a sacrament or
sacred in Indian society, so it could not be applied in the country."
DELHI
HIGH COURT
- Since 2015, the Delhi High Court has
been hearing arguments in the case.
- In 2017, Central government stated in
an affidavit submitted to the lawsuit that making marital rape a crime
“may destabilize the institution of marriage” may destabilize the
institution of marriage" and enable harassing spouses.
- The Delhi High Court began hearing
applications contesting the exemption from individuals and civil society
organizations in January 2022.
- In May 2022, they reached a
contentious split decision. One judge supported criminalizing marital rape
because it infringed upon a woman's right to consent, while the other
judge disagreed, arguing that marriage "necessarily" indicated
permission.
- It was brought to the Supreme Court.
SUPREME
COURT
- In a September 2022 Apex Court
decision on women's access to safe abortions regardless of marital status,
the court ruled that marital rape should be included in the definition of
rape for the purposes of the Medical Termination of Pregnancy Act.
Well with the change of time the situation gets more complicated, and the
lawmaker recognize the marital rape as a serious offence. None other than
the Supreme Court agrees that criminalizing marital rape does not threaten
marriages in anyway. In Independent Though Vs Union of
India,11 October 2017, the court specifically explained that “the
marriage is a personal and it is said if divorce and judicial separation have
not destroyed the institution of marriage then criminalizing marital rape
certainly cannot either”
CONCLUSION
In
India, making marital rape a crime is crucial to protecting women's equality,
autonomy, and dignity in marriage. India's legal system has to change to
protect all citizens, regardless of marital status, and to meet contemporary
human rights norms.
What
can help the victim other than the law to protect herself against the violence,
is it great support of friends and family, shelters can provide a temporary
safe place to stay for victims, educational and prevention programs on local
state and national level, by setting up example for children at home that
violence and abuse are not part of family life and the most important by
strongly supporting for enforcement of current laws in for new legislation to
control domestic and sexual violence.
