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CRIMINALISING MARITAL RAPE: A DILEMMA

INTRODUCTION

Marriage is a socially recognized union of two persons governed by values, beliefs, rights, and legal sanctions to regulate sexual behaviour. Rape is a sexual activity that is illegal and involves having sex against one’s will or with someone unable of giving their consent voluntarily due to mental illness, mental disability, intoxication, drowsiness or dishonesty. Marital rape is forced sexual intercourse by a man with her wife. In India, marriage is considered a sacred bond that regards automatic consent of sexual intercourse of the husband with her wife after marriage. Society acknowledges that rape can never happen in a marriage and thus it is still not a crime in India. Moreover, under Exception 2 of Section 375, unwilling sexual intercourse between a husband and a wife over 15 years of age does not constitute “rape” and thus prevents such acts from prosecution.

This is because of the patriarchal framework of Indian society which favours everything. . Men are of the view that women’s consent is not necessary as they are their property after marriage. Women have been struggling with it for a very long time. Despite this, society has mostly ignored this. Many public health issues are brought on by marital rape which includes sexually transmitted illnesses including HIV and other STDs, vaginal infection, genital irritation, sex-related pain, persistent pelvic pain and UTIs. The physical abuse associated with marital rape can interfere with pregnancy and result in health problems for both the mother and the fetus. Some of the mental health consequences of marital rape and other forms of interpersonal abuse include depression, anxiety, emotional pain, and suicidal thoughts. Two more ways that marital rape and violence impair children’s health and well-being are the psychological repercussions of seeing violence and the potential impact on mothers’ ability to care for themselves and their children. The experience of marital rape has been rendered invalid for its victims in terms of law, culture, and the workplace. As a result, the victims of this crime continue to face substantial treatment due to the proliferation of invalidation. Many women give up their lives because of society’s avoidance and the years-long stigma that is prevalent in society. Thus, it is important to criminalise marital rape.

ARGUMENTS AGAINST CRIMINALISING MARITAL RAPE

Men’s rights advocates believe that by making marital rape illegal, many women may use it as an excuse to deliberately file false complaints against their husbands. Because it will be used as a weapon by the wife to torment her husband, they contend that marital rape should not be made a crime. The wife’s complaint will serve as the primary proof of the crime since the relationship between a wife and her husband is largely sexual, and the male victim will not have enough evidence to prove his innocence. Making marital rape a crime will destabilize the institution of marriage and thus the social framework of society. Therefore, there is no need to make marital rape a separate offence.

According to former Indian Chief Justice Dipak Mishra, making marital rape a crime will sink families into full chaos and our nation’s survival depends on the family’s framework which supports family values. It cannot be made a crime due to ingrained customs and social mores.

ARGUMENTS IN FAVOR OF CRIMINALIZING MARITAL RAPE

Those who are in favour of criminalizing marital rape have argued that Every law has the potential to be abused, and if lawmakers stopped passing laws out of concern that they may be, then there would be no laws protecting citizens’ rights. To prevent the law from falling into the hands of criminals, India already has anti-perjury legislation in place that can be used. Moreover, an exception to Section 375 of IPC violates women’s fundamental rights under Article 14 which involves equal protection of laws and Article 21 which includes the Right to live with Human dignity which defines the freedom of an individual; The Right to Bodily self-determination which defines the right to freedom and liberty to take decisions of our life by ourselves; and The Right to sexual privacy which defines the right to sexual security.

RECENT DELHI HIGH COURT DISSENTING OPINION ON MARITAL RAPE WITH RELATED INDIAN LAWS

To challenge the legitimacy of the “marriage exception”, the NGO RIT Foundation filed a suit with the Delhi High Court in 2015. The All India Democratic Women’s Association (AIDWA) and three individual petitioners—one of whom is a victim of domestic and sexual violence filed petitions in response to the Supreme Court’s 2017 ruling in the case “Independent Thought vs. Union of India (2017)”, that the marriage exception does not apply if the wife is under the age of 18—a ruling that urged the Supreme Court to rule against it.

Recently, the case “RIT Foundation v. Union of India, 2022 ”, was filed in Delhi district court, which again appealed in Delhi High Court leads to the controversy of criminalizing marital rape in India. The two judges’ bench issued a split verdict on the subject of criminalizing rape within marriage, leaving the rule in place.

The exception to Section 375 of the Indian Penal Code (IPC), which states that sexual activity between a husband and his wife, who is 18 years of age or older ( earlier it was 15 which was changed to 18 years by the Hon’ble Supreme Court in 2017) is not raped even if it occurs without her consent, was overturned as unconstitutional by “Justice Rajiv Shakdher” who presided over the two-judge Bench. He believed that the disputed sections are invalid because they violate Articles 14, 19, and 21 of the Indian Constitution in so far as they refer to a husband engaging in sexual activity with a wife. However, “Justice C. Hari Shankar” denied the request to make marital rape a crime, stating that any modification to the law must be made by the legislature because the matter calls for taking into account many factors, including social, cultural, and legal ones. He opines that The right to equality, freedom, and life could not be deemed to have been breached because the exemption was based on Intelligible criteria”. The two judges disagreed on crucial issues such as whether or not there had been a case of marital rape, whether or not the court should have the authority to make that decision, whether or not the State’s concerns about protecting the institution of marriage were valid, and whether or not women who had been the victims of sexual misconduct had recourse under other laws. The matter concerns a “substantial point of lawaccording to both justices, thus the Supreme Court has to consider it.

SUPREME COURT RECENT JUDGEMENT RELATED TO MARITAL RAPE

In a landmark decision, the Supreme Court recently declared that under the Medical Termination of Pregnancy (MTP) Act, all women have the right to a safe and legal abortion up to 24 weeks of pregnancy and that any differentiation based on a woman’s marital status is “constitutionally unsustainable”. Therefore, a married woman seeking an abortion on the grounds of marital rape has a full right to do so under the MTP. The Hon’ble court further stated that for the objective of the MTP Act, marital rape must be included in the definition of the crime of rape. In addition, The Supreme court also held that sexual assault by a man on his wife can take the form of rape. This can be seen as a victory for the women’s rights activists who are struggling to criminalise marital rape.

CONCLUSION

Rape is a serious violation of a person’s fundamental right to life and individual freedom, not just cruelty toward women. The connection between the victim and the offender does not change it. In this way, it is wrong to believe that a husband’s right to have sex with his wife comes from marriage. Social embarrassment related to marital rape has stifled a woman’s voice against her husband, who utilizes his favoured position to shatter her trust and personal dependence. Marital rape is more traumatic and has lasting physical and emotional effects. A patriarchal framework of society always considers women as their property and believes that they have the right to control their life which is against her fundamental rights under Articles 14, 15, 19 and 21 of The Indian Constitution. Moreover, some women do not consider it rape. Thus, it is important to change the thinking of society and most importantly, the men that if a woman says yes, it means yes, and if a woman says no, it means no whether it is within marriage or outside marriage. Women’s consent should be the essential component for sexual activity and it is also significant for a happy married life. Furthermore, gender-neutral laws are essential to prevail justice in society. It is hoped that the exception to Section 375 which decriminalize marital rape will be looked upon soon.

Author(s) Name: Bhumika Grover (Rajiv Gandhi National University of Law)