MARITAL RAPE IN INDIA- NOT CRIMINALISED YET!
MARITAL RAPE IN INDIA- NOT CRIMINALISED YET!
WRITTEN BY:
HARSHIT SAXENA
2nd YEAR BA.LL.B.
MANIPAL UNIVERSITY JAIPUR
EDITED BY: YASH JAIN
5TH YEAR B.B.A. LL.B.(H)
AMITY LAW SCHOOL, NOIDA
Abstract:
Rape is non-consensual sex with the victim and is
treated as a very serious crime, but the same non-consensual sex within
marriage in India is still not considered as rape. Where marriage is considered such an important event in a person’s life, does merely being married remove
the importance of consent from one’s life? Justice Verma Committee, formed
after the draconian Nirbhaya Case (2012) recommended making marital rape a
criminal offense. In this article, we will look at the concept of marital rape in
India.
Introduction:
It is important to first understand the roots of this
marital rape, not criminal offense concept which arises from two doctrines of
the British colonial era.
Hale's Doctrine said:
"Husband can't be guilty of rape. By their
consent, the wife has given up herself in this kind to the husband.
Another doctrine that influenced marital rape’s
immunity is the Doctrine of Coverture. According to this doctrine, a woman did
not have an independent (legal) identity of her own after marriage. Her
identity was mixed with that of her husband and all of her property was passed
on to him. Note that these doctrines depict such a backward mindset which at a
time was fine but in nowadays society, this would be unacceptable.
Multiple petitions have been filed in Delhi high court
to declare marital rape a criminal offense and more than 100 countries have
already considered marital rape a crime. But in India; section 375 of the Indian
penal code is the one that defines rape. But the same section has an exception
to it which states that “sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape”.
In RIT Foundation v. Union of India delivered a split
verdict as Justice Rajiv Shakdher, ruled in favor of removing exception two
whereas Justice C Harishankar opposed this decision. Marriage is a religious
practice with a different types of procedures in different castes and religions
and at one time there was a mentality that when a girl is married to a person,
she has to leave everything that she had behind and should obey his husband and
live up to his and his family’s wishes; but in a developing society like ours
when we have the knowledge of the human rights of each and every person, this
kind of mentality should not be entertained as various rights of that person
are being violated such as their fundamental right (under article 21), and
several other rights. Rape is a very serious crime with devastating effects on
the victim’s lives as well as the lives of the family of the victim and we
all agree that there should be no tolerance regarding any kind of
non-consensual sexual activity either outside the
marriage or within a marriage;
why is it that rape which is committed by a spouse is
not considered a criminal offense?
Marital Rape and laws:
In India, Rape committed within a marriage is not
considered as a crime. Rape has been given a lot of importance and intolerance
by our courts which is the right thing to do but the problem lies in a very
particular exception given in the Indian Penal Code.
Rape is defined under section 375 of IPC but under the
same definition, there is also a mention of the exception which states that
“Sexual intercourse by a man with his own wife, the wife not being under the
age of 15, is not rape”. Meaning that the consent of the spouse is not of any
significance. The only thing that can make a difference and the action could be
called rape within a marriage is if the age of the wife is below 15 years.
Unless the raped woman is the wife and her age is not less than 12 years old,
the rapist should be punished with imprisonment for a period that can extend to
life imprisonment or up to 10 years, in addition to the fine, under article 376
of the CPI.
Even if the spouse is under the age of 15, the
punishment is comparatively less severe and the protection against rape by her
husband will only be valid until she is of age below 15 after that she has
literally no protection against rape which is against international human rights
standards. When the wife is more than the age of 12 and less than the age of
15, the offense is punishable by up to two years in prison or a fine, or both,
under the Indian Penal Code; when the spouse is under the age of 12, the offense
is punishable by up to ten years in prison and shoving.
Rape of a spouse legally separated can carry a
sentence of up to two years in prison and a fine. The Protection of Women from
Domestic Violence Act, which was passed by Congress in 2005, considers marital
rape as a form of domestic violence. A woman can sue her husband for
marital rape under this law through legal division.
It is unacceptable that until now women have been
using IPC section 498-A, which deals with the lack of remorse, to protect
themselves from “unreasonable sexual intercourse directed by the spouse”. Women
should be able to directly take the help of section 375 which is the root
section of rape so that justice could be served more easily.
Although under Article 14, the Indian Constitution
guarantees equality, the marital law exception violates article 14 as it
differences against females who have been raped by their own husbands as it denies them equal protection from rape and sexual harassment. This exception
also violates Article 21 of the Indian Constitution which states: “no person
shall be denied of his life and personal liberty except according to the
procedure established by law.”
Now it is important to know why this exception has not
still been considered unconstitutional.
Why Marital rape is still not a crime in India:
It’s 2022 and India remains one of 32 countries where
it is not a crime for a man to rape a woman as long as they are married. According
to former Chief Justice of India Dipak Mishra, making marital rape a crime
would cause complete anarchy in families, and our country’s survival
depends on the family platform, which upholds family values. Marital rape
cannot be criminalized because of social values and existing traditions.
According to the Indian government, people who try to prevent women from being
raped by their husbands are following Western countries’ lead.
This is a unique obstacle that India faces as the
people of India (for the most part) are illiterate, uneducated, poor, conservative, and religious they believe that the wife must consent to her
husband forever, and this makes it hard to criminalize marital rape in India. Another
reason is that it would surely give protection to women but at the same
time, it will be straightforward for women to misuse the law. An affidavit was submitted
to the Delhi High Court in which the union government said a law that criminalizes
marital rape may become an “easy tool to harass the husbands”
Some women may falsely accuse their husbands and it will be very tough to identify whether the act was consensual or not. But I think this is one of the features of the judiciary; to weed out false accusations and impose penalties and provide justice. The argument which says that the law to criminalize marital rape might be an easy tool for women to misuse is faulty as it ignores how aggrieved women are so disadvantageous that they are not even being able to use the marital rape law if it exists, let alone misuse it.
Conclusion:
In India, the current condition of married women in
terms of protection against rape by their own spouse is very poor as no law expressly prohibits marital rape. It is very important to have such
laws that criminalize this offense as it leaves a very devastating mark on a
woman's life. It not only has short-term effects, but the effects stay up for a
very long term and knowing that there won't be any justice makes it worse. A
woman cannot be deprived of her rights only on the basis of some arguments; it is the country's responsibility to overcome these arguments and provide
justice. Criminalization of Marital rape should be the priority of the branches
of government.
References
[2] https://theswaddle.com/marital-rape-inda-decriminalized-crime/
[3] https://indiankanoon.org/doc/623254/
[5] https://indiankanoon.org/search/?formInput=marital%20rape+doctypes:judgments
Comments
Post a Comment