Even though we’ve progressed in every field of life, situations like marital rape remain unaddressed. In India, despite amendments and commissions, one of the most humiliating deeds is not a crime. Rape is a horrific crime in and of itself, but it is legal when it occurs within the confines of a married relationship. It is considered that the husband has complete authority over his wife, that he can do whatever he wants with her, and that she has agreed to a sexual connection with him when she marries him. In our society, marital rape is considered taboo, and no one wants to discuss it. It is regarded as something that should be kept within the confines of the home. Despite this, it affects a large number of women in society, regardless of their age, caste, education, or social status.
To understand about marital rape, let’s first understand about rape.
What is rape?
Rape is when a person is subjected to sexual or other forms of intercourse without his or her consent. In India, rape is the fourth most common crime. Article 375 of the IPC defines it. Article 376 defines the punishments. Penalties included up to life in jail and a monetary fine.
What is the definition of marital rape?
In the Indian legal system, there is no such thing as marital rape. In general, marital rape occurs when a woman is coerced into sexual intercourse after marriage by her spouse without her consent. Under Indian law, marriage entails irrevocable implied consent to sexual relations.
Facts about spousal violence
- According to a nationwide poll, 5.4 percent of married women are victims of domestic violence, with many cases going unreported.
- One in every five males has coerced his wife or partner into having a sexual relationship with him.
- Manipur has the highest rate of sexual and physical harassment of women. Around 55 percent of women in India are victims of domestic abuse, with Sikkim having the lowest rate at 3.5 percent.
- Sexual violence victims are hesitant to seek help. Only ten percent of women come forward to seek treatment.
- Over 104 countries have criminalised marital rape.
Legal status of marital rape in India
India is one of 36 countries that has yet to make marital rape a crime. As a result, under the IPC, marital rape is not a crime. The domestic violence statute of 2005 must be used to seek redress.
A wife is presumed to grant her husband eternal consent to have sex with her after they have had marital intercourse.
CASES AGAINST MARITAL RAPE IN INDIA
Nimeshbhai Bharatbhai Desai vs the State of Gujarat— The question was whether forcing her wife to have oral sex amounted to rape under section 376 of the Indian procedural code (IPC).
According to the current legal status in the country, a wife offers her husband an implicit agreement to have sexual intercourse with her by virtue of being in a marriage relationship. He cannot be punished under Sections 376 and 377 since his sexual conduct with his wife after marriage are deemed his right. It suggests that a wife has no say in private matters and has a lower position than her partner.
In Dilip Pandey and Others vs. the State of Chhattisgarh, it was held that a husband’s sexual intercourse or any sexual conduct with his wife is illegal.
JUDGMENT OF THE HIGH COURT OF KERELA
Despite the fact that marital rape is not criminal in India, the Kerala High Court confirmed that it is a viable basis for divorce in a landmark decision.
STATUS OF MARITAL RAPE
- Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel are among the countries represented. DEVAW (Declaration on the Elimination of Violence Against Women) by the United Nations – In 1993, any form of violence against women, including marital rape, was considered to be a violation of the women’s Fundamental Human Rights.
- BEIJING DECLARATION – This declaration reaffirmed that, under international law, domestic abuse against women includes physical, sexual, and psychological assault, including marital rape.
EXTERNAL TO INDIA
- Many countries have made marital rape illegal, either by adding a clause or enacting new legislation.
- In 1976, Australia became the first Commonwealth country to approve legislation making marital rape a criminal offence.
- Poland was the first country to enact legislation expressly recognising it in 1932.
WHY MARITAL RAPE SHOULD BE CRIMINALISED?
It is against the principles enshrined in India’s constitution.
The right to live in dignity is guaranteed by Article 21 of the constitution. Marital rape is a clear violation of the right to a dignified life. Article 375’s exception obviously breaches Article 21 of the constitution.
However, because the Supreme Court has not proposed a justifiable classification, exemption 2 under Section 375 of the IPC discriminates against the wife when it comes to rape protection.
A woman’s mental and physical well-being is harmed when she is forced into sexual intercourse.
What kind of justice is it when a married woman is raped by her husband and he is only charged with assault rather than rape?
In light of the foregoing facts and reasoning, it is past time for the Supreme Court to act and exempt the exception under Article 375 of the IPC. As a result, it may be claimed that the deconstruction of the public and private spheres must be linked with the naming and documentation of violence against women in order to create concrete change.