INTRODUCTION
“Is it really true that, the wife is the property of the husband?”
Crimes against women have been seen in various parts of the world as long as the time. It is a general connotation, that, there is no women till today who has not faced any violence against her. India’s socio-cultural fabric has long reflected the complex and, at times, contradictory positioning of women within the society. One of the most emblematic instances is the episode of Draupadi in Mahabharata- an event that, continues to evoke deep reflection on the treatment and status of women in the history of India or Bharat.
Despite being one of the most grievous violations of bodily autonomy, rape- particularly within the bounds of marriage- remains a deeply contentious and under addressed issue in India, with the legal framework yet to offer comprehensive adjudication or protection of victims, reflecting a complex interplay of societal, cultural and legal considerations.
In India, the Bhartiya Nyaya Sanhita, 2023, deals with the offences committed in the territory of India. And its section 63 deals with rape, furthermore its Exception 2[1] entirely substantiates the clause of marital rape.
OBSERVATIONS TILL TODAY
An analysis of the provisions related to sexual offences under the Bhartiya Nyaya Sanhita reveals a discernible distinction in the legal treatment of women subjected to rape and those who experienced rape or sexual violence within the institution of marriage, thereby reflecting a disparity in the recognition and protection afforded to victims of marital rape. Various cases have been awarded various different judgments, although the circumstances were different, the root cause of the situation is the same.
Independent Thought v. Union of India[2] was a case that cantered around the motion that Exception 2 of Section 375 of the Indian Penal Code, stated that sexual intercourse with a married woman, not under 15 years of age, was not rape i.e., excluding the husbands from being charged for raping their minor wives. It was struck down by the apex court, which resulted in recognising that irrespective of the age, the act shall be considered as rape and also that marriage is not an absolute defence against rape. In the case of Nimeshbhai Bharathi Desai v. State of Gujarat[3], it was observed by the honourable court that, if a married woman is not given any protection from being treated like this, this gives an advantage to the husband to have sex anytime he demands it. And in the ongoing case of RIT Foundation v. Union of India[4], the constitutionality of Exception 2 to Section 375 was challenged. It was argued by the council that, the exception violates Article 14[5], 15[6], 19[7] and 21[8] of the Indian Constitution. The judgement is still awaited.
PSYCHOLOGY OF A WOMAN
Men compared to women are mentally, physiologically, psychologically and physically very different. The management and reactions vary in circumstances. History states, men are for war, and women are for peace. Although it’s the law of the nature that a man will need a woman in his life and a woman will need a man. In terms of sexual violences, it’s the women who have been suffering, and that’s the answer for why all the laws regarding sexual offenses are not gender neutral. The psychological trauma endured by a woman during and after a sexual offence is profound and often compounded when the perpetrator is her husband. Unlike other instances of sexual violence, marital rape carries a distinct psychological burden, rooted in the betrayal of trust, emotional intimacy and societal implications surrounding marriage. Woman usually grapple with confusion, self-blame and fear of not only the abuser but also of societal judgement and institutional differences. The normalization of a husband’s access to his wife’s body, deeply ingrained in patriarchal constructions, often leads to internal conflicts. Furthermore, the lack of legal recognition intensifies her isolation, denying her not just legal remedy but also a validation from her trauma and fear.
REASON OF THIS LEGAL STATUS
The institution of marriage requires the husband and the wife to live with, adjustments, compromises and sacrifices. It takes a lot of effort from the both the sides to make the marriage successful. Despite of the internal conflicts, few pave their way to understanding. The two judge bench of the Delhi High Court in, RIT Foundation v. Union of India[9], gave a split opinion. Hon’ble Justice, Rajiv Shakdher observed that, marital rape should be criminalised, otherwise it was equivalent of giving the husband a licence to rape his wife whenever he wants, on the other hand Hon’ble Justice C. Hari Shankar, stated that, it should be taken into the consideration the care and caution while resolving any matters that falls within the ambit of the institution of marriage. It does not require lot of time on the part of the judiciary to criminalised marital rape, but it will be the women again who shall suffer. He also stated that, it is technically very difficult and near to impossible, to proof the marital rape had taken place. In other words, when a man and woman are wed, it is the common expectation from the marriage that they shall consummate their marriage. It shall be very difficult to proof which intercourse was forced that shall fall within the ambit of marital rape and which was done with consent. This makes the conviction even harder and opens a door to unfair trails.
WAY FORWARD
Criminalisation of marital rape has its own repercussions. The question is, why is the victim of marital rape treated differently as compared to the other victims. Is she really not a victim? Or does being tied to the institution of marriage, the concept of ‘consent’ vanishes? Despite, sexual intercourse is very essential for survival and reproduction it is still considered a taboo, as it infringes the privacy of the victim. There are a lot of women who haven’t gotten justice for the same. It is really unjust and unfair for those women who still have not been delivered justice only because they are married. But as a law student, who has complete faith in the Indian judiciary, and on the note of serving people in good faith, criminalising marital rape would be difficult and could have its own consequences which would not be good for the woman. But if it is criminalised it would still have its negative consequence, that is, the wife filing a case with a malicious intent.
Furthermore, the delusion of people, thinking, forceful or consent less sexual intercourse with a woman is fine just because she is his wife, is completely wrong and questions the very dignity and outraged the modesty of a woman.
In my opinion, the women who go through and are victims of domestic violence, which is mentally, emotionally, physically causing them hurt or grievous hurt can seek remedy. But sometimes depending on the circumstances, continuing to deny that existence of marital rape is a deeper injustice.
But the core question remains- why should a woman lose her right to bodily autonomy and consent because she is married?
Author(s) Name: Ananya Kolhar (Karnataka State Law University’s Law School)
References:
[1] Exception 2.––Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
[2] Independent Thought v. Union of India AIR 2017 SUPREME COURT 4904
[3] Nimeshbhai Bharathi Desai v. State of Gujarat
[4] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404
[5] Equality before law, Constitution of India. 1950
[6] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Constitution of India, 1950
[7] Protection of certain rights regarding freedom of speech, etc, Constitution of India, 1950
[8] Protection of life and personal liberty, Constitution of India, 1950
[9] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404
