After 75 years of independence still women are in fear to tell if something bad happen in wedlock. Women are under the pressure of society and that is why most of the cases remain hidden or undisclosed. Marital rape is described as a rape by the victim’s male spouse. In nations including the United States, the United Kingdom, and Canada, it is a crime. However, India is one of the thirty-two nations where spouses cannot file a criminal complaint against their partners for having non-consensual intercourse.
What is Marital Rape?
As the name itself is clear marital rape is the rape committed by the person to whom the victim is married. If any man commits sexual intercourse in the influence of force, threat or under any other influence without obtaining consent of his wife, is known as marital rape. The definition of rape that is given under Section 375 of Indian Penal Code, hereinafter referred to as IPC says that every man is said to commit rape if he does sexual intercourse with a woman without her will, so here question arises that whether such will is not required after marriage?
What are the provisions in India for Marital Rape?
Although there is nothing mentioned about the marital rape but exception 2 of Section 375 of Indian Penal Code says that “sexual intercourse by a man with his own wife which is above 15 years, is not a sexual assault. (Means marital rape is not penalised? but is this constitutionally valid?) A big question arises here that assault with a married woman who is above 15, has no rights for her safety?
Why Marital Rape should be penalised?
The thinking that rape will be conducted only by the strangers or other people is completely unconstitutional as no one can read the mind of any person and the trauma of rape is same for the married and unmarried women.
Violation of Article 14 of the Indian Constitution: Article 14 clearly indicates the equality among people and the provisions of IPC regarding rape discriminate between the rights of a married and unmarried woman. Every woman has her modesty and outraging that modesty should be criminalized equally.
Violation of Article 21of the Indian constitution: Article 21 states that every person has right to live with dignity and this has wider interpretation in different case laws, right to live includes right to privacy and it is interpreted in the case of K.S Puttaswamy in which court clearly says that right to privacy means decisional privacy so why this privacy is not guaranteed to the married women that whether she want to cohabitate with her husband or not.
Similarly in Suchita Srivastava v. Chandigarhadministration (Civil Appeal No. 5845 of 2009), the Hon’ble Supreme Court clearly mention that right to make choices in sexual activity under the scope of right to live with dignity and then why this is not applicable to married women.
Marital rape is not a criminal offence in India, but some provisions are given under the special enactments. The Protection of Women from Domestic Violence Act, 2005 clearly states that “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it harms or injuries or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. It states that sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”.
Some scholars have raised point that it will be unfair to enter into the matrimonial matters.
Some skeptics thinks that it will be difficult to prove marital rape as there are no evidence to prove, it can’t be proved medically whether rape has committed or not. The only evidence of consent is victim testimony whether it is true or not and if marital rape will be criminalised it can be used as tool against men.
It is shocking to mention here that in our country a women who is less than 18 are not allowed to marry but on the other hand a married women who is above 15 years is allowed to marital rape.
Recent Judiciary viewpoint:
Our judiciary review each and every matter as and when required, Marital rape being a controversial issue is being reviewed by judiciary multiple times. Division Bench of Delhi High Court gives two different statement on marital rape Justice Rajiv Shakhder said that the exception to the rape should be criminalized as it is the matter of right to personal liberty enriched under fundamental rights, whether she is 18 or above 18, whereas Justice C. Harishankar has different view from him, according to his opinion change of the law should be done by legislature as various aspects have to be checked in respect of social, cultural and legal. The matter is now referred to the Supreme Court of India.
Marital rape is a debatable issue in India. Different people have different perspectives on this topic. Marital law should be criminalised and due measures have to be taken to make them implemented properly. Marriage does not mean that a woman is always ready for the sexual intercourse her consent is important as much as it is important for an unmarried girl. It will be unconstitutional to deprive her from her constitutional right only because she is married. Due to marital rape number of cases for depression, suicide, anxiety is increasing day by day.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali