Since time immemorial, the women have always been treated as the asset of their Husbands and Fathers. Our Society has failed to realize the fact that women are not subordinate to men. Women are still expected to live according to the whims and fancies of the men in their lives. Even the millennium year has not been able to bring about any noticeable change, leave alone metamorphosis in the thought process of man, woman, mankind and humankind. Even though tremendous, nay stupendous strides have been made in the technological advancement which has made this era, an era of mechanised living, yet our legal system does not acknowledge the need to recognize the existence of MARITAL RAPE. The definition of ‘Rape’, as per Section 375 of the Indian Penal Code (Act XLV) of 1860, includes every type of sexual assault. However, the Exception to Section 375 lays down that “Sexual Intercourse or Sexual Acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This immunizes such acts from prosecution under the Indian Legal System.
Any sexual intercourse between husband and wife without wife’s consent is called Marital Rape. The act of cohabitation against the will of the wife is a heinous offence, and cannot be condoned just because the husband has been brought up in a society with a mindset that it is the right of the husband to cohabit wherever and whenever he so desires. In India, one of the reasons is that the patriarchal system of the Indian society is followed by most of the people right from the earliest civilizations, i.e., the times of Indus Valley.
Wives are not the assets of their husbands. But in our society, marriage, in a way, gives men the ‘License to Rape’ with their wives. Marriage should not be seen as a permit for unconsented sexual intercourse. It is not an obligation. A woman does not give up her liberty to say a “no”, the day she gets married. Everyone has a right on their body more than anyone else. Sex should only be with the mutual consent, love, caring, and clear communication.
Sex, after marriage, is not an obligation, in fact, it should be consensual. It is a way to express love, care, affection and devotion towards each other. It cannot be forced by any means, i.e., it should not be:
- Force Only Rape: Men believe that marriage is the sanction by the society, to do anything, with the one whom they got married with, in order to fulfill their whims and fancies by doing anything. If a husband holds his wife down, pushes her, or inflicts pain by hurting her in performing coitus against her will, it amounts to a sexual assault. Making love doesn’t include making someone cry or forcing someone as per your own will.
- Battering Rape: If the husband forces sex by threatening the woman to cause harm to her or to the people or things she cares about, or if he comes to her in a barely contained rage, she cannot give her consent. She can only comply rather than putting the people under threat or danger either physically or emotionally.
- Sex By Manipulation: If a husband accuses his wife for not being a good wife, or blackmails her emotionally by saying that she is so bad in bed that he will look for other means outside to satisfy himself, then he is manipulating her. Some men even threaten to leave her alone and take the kids with him if their wives do not comply with their demands for sex. When a wife is forced to fall for these orchestrations, it cannot be called that she has given her consent, rather, it amounts to rape.
- Sex Without Wife’s Consent: Loving sex is actually consensual. If a woman is drugged, asleep, intoxicated or unconscious, i.e., she is not in her senses, she obviously cannot give her free consent. She cannot think as a reasonable person in such situations. Even if she says a “yes” in such circumstances, the “consent” isn’t free, valid or truthful.
- Sex By Taking A Woman Hostage: Some men maintain their superior position and keep a check on their wives that they make it almost impossible for her to contact her family without his consent that she cannot even step out of the house because of the fear of the husband. Their wives are not allowed to have a friend circle to share their problems. The women are kept as hostage in their own home. Like many hostages, she gives up, and gives in to whatever he wants — including sex.
- Sex When The Woman Feels She Has No Choice: Giving in should not be considered the same as giving consent. When a woman is left with no choice but to surrender, this amounts to sexual assault.
REASONS BEHIND MARITAL RAPE
The reasons behind Marital Rapes are:-
- The economic dependency of women on their husbands and in-laws,
- Traditional rules which require her to surrender irrespective of her choice,
- Widespread gender inequality, and
- The Patriarchal set up of our Society.
LEGAL POSITION OF MARITAL RAPE
Many Countries, including United Kingdom, United States of America, Australia and Austria have criminalized Marital Rape. But various Countries have still not criminalized Marital Rape like India, China, Singapore, Malaysia, Algeria, and many more. This is a testament to the fact that India is still holding onto an archaic and regressive law. It is illogical, ethically and morally wrong. Rape is an unacceptable crime irrespective of a woman is married or not. It is a crime against humanity and it must be punishable.
In Bodhisattwa Gautam v. Subhra Chakraborty, 1996 SCC (1) 490, the Hon’ble Supreme Court said that “rape is a crime against basic human rights and a violation of the victim’s most cherished of Fundamental Rights, namely, the Right to Life enshrined in Article 21 of the Constitution.” Yet it neutralizes this Judgement by not recognizing Marital Rape.
The latest Judgement by the Gujarat High Court in Nimeshbhai Bharatbhai Desai vs. State of Gujarat, 2018 SCC OnLine Guj 732, termed Marital Rape as a ‘disgraceful offence’, and elaborately dealt with the issue of Marital Rape stating that, “making wife rape illegal or an offence will remove the destructive attitudes that promote the Marital Rape”; however, since the Marital Rape is not recognized as a crime under the Indian Legal System, the Court held that the husband is liable only for outraging her modesty and unnatural sex.
Similarly, the Hon’ble Supreme Court, in Independent Thought vs. Union of India and Anr, (2017) 10 SCC 800, has criminalized sexual intercourse with a minor wife aged between 15 to 18 years, but has refrained from making any declaration regarding the Marital Rape of a woman who is above 18 years of age.
It is one of the significant questions as to why Marital Rape, despite being one of the most heinous crimes one can commit against a woman, has failed to gain recognition in the eyes of the law. There is an immediate need for criminalization of Marital Rape under the Indian Penal Code (Act XLV) of 1860. It is also exigent to spread the awareness in the masses about this crime, as the real objective behind the criminalizing Marital Rape can only be achieved if the society recognizes and challenges the prevailing myth that rape by one’s spouse is nugatory.
Marital Rape derogates the respect, honour and dignity of a woman as a human being. It reduces her to a personal possession for the slavery and pleasure, to a living corpse, under the fear of hurt and injury. It has been proved by medical evidences that rape has severe and long lasting consequences for women. It is necessary to outlaw such perverse sexual acts. Hence, Criminalizing Marital Rape is the need of the hour to regain the trust and confidence in the institution of marriage.
By: Navin Kumar Jaggi & Sayesha Suri