Marital Rape: Legal Perspective, Cultural Attitude & Stigma
SOMYA SINGH
STUDENT OF BALLB FOURTH YEAR
SEEDLING SCHOOL OF LAW AND GOVERNANCE, JAIPUR NATIONAL UNIVERSITY, JAIPUR, RAJASTHAN, INDIA
ABSTRACT
Women were always regarded as the epitome of strength, intelligence, wisdom, and virtue and also the welcomer of wealth and prosperity. But in spite of these virtuous and good qualities, women were continuously seen as the objects or the property of men, who submerged their dignity and derogated and outraged her modesty from time to time. They are not even safe in their own home, with her own husband. Yes, this is the bitter truth of society that wives are feeling insecure and unsafe under the roof of their husbands because of their forceful and coerced behaviour towards their wives. Marital Rape is one of the contentious issues of today’s time which requires it to be resolved timely. The consent or will of a wife to engage in some sexual acts is totally neglected and undermined by her husband who often forces her to have intercourse with him which has a very adverse effect on the physical as well as the mental health of a wife, leads to the mental trauma, depression, PTSD etc. it is clearly a violation of the Human Rights of the women and their personal autonomy. There must be public awareness through campaigns and different programmes that will educate them regarding the negative effects of the same on the women, the interference of media is badly needed in this scenario. This article will explore the possible reason and psychology behind such increasing cases of Marital Rape and also provide a glimpse of the role of patriarchal beliefs and historical religious doctrines behind such serious crime.
INTRODUCTION
Marriage is considered the sacred union between a man and a woman. It is a permanent, holy and eternal bond which continues even in life after death. But in between of these sacraments there are certain important concepts which were totally undermined and undervalued such as Rights and Consent. Engaging in sexual acts without the marriage and lacking the consent and will of the other partner will constitute rape but when the same concept came in the context of the married couples then the provisions and laws remain silent. Mostly the rights and the consent of the wives are neglected and they are submitted to the wishes of their husbands.
Marital Rape sometimes knowns as Spouse Rape refers to the act of non-consensual sexual intercourse between spouses
. It not always includes physical violence or hurt but engaging in sexual intercourse without the consent of the other spouse is sufficient for making it a rape. It can be considered as the other form of physical abuse, domestic violence, and sexual exploitation.
Nothing happens overnight, it is a huge process and time consuming to make something acceptable or habitual to the people in the society. If we peeked out in our history, we can see that in those times having intimacy or sexual involvement with the spouse within the marriage was considered as the full-fledged right of the other spouse which is mostly dominated by the men and women were subjected to the wish and force of her husband.
While many countries have considered it as a criminal offence, some have not and it has become a very debatable and contentious issue for deliberation and discussion as to whether to criminalise it or not. And in some countries, it was not considered rape but became the ground of divorce only or the person who is doing such non-consensual sexual activity is prosecuted not for the offence of rape but either for assault, battery, grievous hurt or hurt which undermined the nature and gravity of the crime and the offender will get off very easily and cheaply from such heinous crime.
INDIAN LAWS ON MARITAL RAPE
In India, the issue of marital rape is complex and has been a topic of significant debate. The law currently does not recognize marital rape as a criminal offence under general circumstances. Here's a detailed look into the legal provisions and the ongoing discourse around this issue:
1. INDIAN PENAL CODE, 1860/ BHARATIYA NYAYA SANHITA, 2023:
a) Section 375 of IPC or Section 63 of BNS defines rape as the act of sexual intercourse without the consent of the women but with the exception that if the same is done by the man with his wife who is not below the age of eighteen years will not0020be considered as rape.
b) Section 498A of IPC or Section 85 of BNS deals with the cruelty to the married women by the husband or the relatives of the husband but remains silent on the marital rape.
2. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005: Section 3 of the act defines Domestic Violence as physical, emotional, and sexual abuse but again not criminalize marital rape directly, it only provides the opportunity to wife to seek remedies like monetary compensation, protection etc.
3. CONSTITUTION OF INDIA, 1950:
a) Article 14 provides equal protection of the law and equality before the law which indirectly gives the rights to women but again does not explicitly make Marital Rape a crime.
b) Article 21 includes the Right to life and Personal Liberty which in turn provides that woman has the liberty to choose whether or not to engage in a sexual act but still it remains mum on marital rape.
REASONS FOR THE GROWTH OF MARITAL RAPE
1. The very first reason is the patriarchal society where from the very childhood it was taught that the men are superior to that of women. Women were supposed to do the household chores and bear the children and men will go and work outside and earn money. It was always presumed that men can do anything with women even treats her as object and property.
2. Another reason is that there is a lack of proper legislative and statutory provisions. The Acts were silent about criminalizing the marital rape. There is no proper backing of law and lots of ambiguities and lacunas are present.
3. In addition to this, discussing private stuff, especially sexual matters was considered taboo in society. Sometimes due to the reputation, fear of family, economic dependence, and most importantly women feel shame to disclose such matters in public. From ancient times women have endured this pain and stigma as they were always burdened with the carriage of responsibilities, inferiority complex, and shame, and were forced to live the life of a maid in front of her husband.
4. Furthermore, many ancient texts like Manusmriti propagate the idea of a wife submitting to her husband’s wish which ultimately leads to a lack of mutual consent within marriage. This can create an environment where non-consensual sex is not recognized as a problem. Many times traditional belief also plays a crucial role in promoting such narrow-minded ideas.
5. Marital rape can be an expression of the perpetrator's desire to assert control and dominance over the spouse. This power dynamic can manifest in controlling behaviour in other areas of life, like economic decisions, social interactions, and physical abuse
6. Lastly, Marital rape is often absent from mainstream discussions on gender-based violence. Limited awareness campaigns and discussions in media or community forums mean that many people remain unaware of the issue.
JUDICIAL PRONOUNCEMENTS ON MARITAL RAPE
Though marital rape is not criminalized in India but it was tried by the judges to eliminate this disease to some extent through their various judgments:
1. State of Karnataka v. Krishnappa:
The court recognized the significance of consent within marriage and emphasized that marital status should not shield a husband from the consequences of committing sexual violence against his wife. The judgment underscored the importance of a woman's autonomy and the need for the law to protect her rights.
2. Suchita Srivastava v. Chandigarh Administration:
The Supreme Court ruled in her favour, emphasizing that a woman’s right to make decisions regarding her body and reproductive health is fundamental. The court recognized that the ability to make choices about reproduction is a vital aspect of a woman's autonomy and dignity. It held that the state must respect a woman's right to make decisions about her own body, regardless of her mental health status; as long as it is determined that she can comprehend the situation.
3. State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar:
It highlights the necessity of clear and affirmative consent in sexual matters, serving as a reference point in legal discussions around consent and sexual offences in India.
4. Nimeshbhai Bharat Bhai Desai vs. The State of Gujarat:
The judgment reinforced the principle that the context of consent is crucial and that previous consensual acts do not imply consent for future acts. This case contributed to the legal discourse on sexual offences, emphasizing the necessity of understanding consent in its entirety and the importance of a woman's autonomy in making decisions regarding her body.
5. Sree Kumar vs. Pearly Karu
The ruling emphasized that the definition of domestic violence should encompass various forms of abuse, reflecting a broader understanding of the challenges women face within intimate relationships. It reinforced the principle that women have the right to live in dignity and security, free from violence and intimidation.
DEBATES AND JUSTIFICATIONS
There are many different and diverse thoughts regarding criminalizing the Marital Rape. Some are propagating modern views like gender equality, women empowerment and equal rights while others have their conservative and primitive views for not criminalizing Marital Rape. The crux of their debate is that if Marital Rape is criminalized then it will impure the piousness and pure bond of the marriage. It will lead to the instability and disturbances in the married life. Secondly, it is presumed that if the wife is giving consent for the marriage, then she is giving implied consent for every act whether sexual or not to her husband.
Another argument which is put forward is that the cultural differences, i.e.; the western concept of criminalizing Marital Rape can’t be possible to implement in Indian laws as both have different attitudes towards the same. Last but not the least, it is contended that if the marital rape is criminalized then there is a possibility that it can be misused by the women against men. There will be an increase in false reports and it can work as a threat to the husbands. It will hamper the mechanism of trust between husband and wife.
This argument overlooks that criminalizing marital rape is not solely about addressing violence; it also upholds a woman’s right to autonomy and privacy.
CONCLUSION
While progress is being made in addressing the issue of marital rape, comprehensive legal reforms and societal change are necessary to protect women's rights and ensure justice. The ongoing dialogue around this topic reflects a broader commitment to upholding human dignity and equality within the institution of marriage. Beyond legal measures, changing societal attitudes toward marriage, gender roles, and consent is crucial. Education and awareness campaigns can play a significant role in reshaping perceptions and fostering a culture of respect and equality. Marital rape is increasingly viewed through the lens of human rights, highlighting that every individual, regardless of their marital status, has the right to bodily autonomy and freedom from violence. There is an urgent need to amend existing laws to criminalize marital rape explicitly. Courts in India are increasingly engaging with the concept of marital rape, with various rulings emphasizing women's rights and autonomy. This judicial scrutiny signals a potential shift toward recognizing marital rape as a crime. At last, addressing marital rape requires a multifaceted approach that combines legal reform, societal change, victim support, and ongoing advocacy. By prioritizing these efforts, society can work towards a more equitable and just framework that upholds the rights and dignity of all individuals within marriages.
REFERENCES
3. https://theamikusqriae.com/criminalization-of-marital-rape-in-india-a-legal-and-social-perspective/
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