Before beginning the topic lets have an glance over situation
of marital rape:
Marital rape is an aspect of marriage that is surely not taken care of by the present existing laws. It is an attempt to throw light on the aspect and the existing laws that can be used as a defence by a partner in case of marital rape. There are many opinions on the idea of marital law, few are in the favour that criminalisation of marital rape should be done few are against it as the institution of marriage and courts aren’t supposed to interfere within what goes around with a husband and wife.
Marital rape is not only the chief concern in the field of women’s rights at the moment, but it also violates several constitutional provisions at the same time.
Introduction
The idea of marital rape has always been under a limelight when it came to the situations of
India. The laws in India have extensively worked on rape, sexual assault and sexual abuse but have turned a dead eye to the concept of marital rape. As if marital rape doesn’t exist in
India, or its existence is close to negligible, but the central government apparently claims that it would break the values of family system and act like a strong hit against the institution of marriage.
They also made a claim that the husbands will be harassed if given a statutory position to women. Marital rape is generally regarded as the act of initiating sexual intercourse with one’s spouse without the other spouse giving consent to do so. In many forward countries, marital rape has been criminalised and thus, it holds the same legal consequences and statutory position as rape to any other individual.
India is currently the seventh largest country in the world, and the pace at which the crime rates are going up is highly alarming and embarrassing for a thriving, multi-cultural, large and secular country like
India. Marital rape is not only the chief concern in the field of women’s rights at the moment, but it also violates several constitutional provisions at the same time.
Everyone in the world has their own perspective on whether marital rape should attract punitive actions or it should just be treated as a part and parcel of marriage as a broad institution. The question surrounding this matter is whether marital rape is evidently guarded by the provisions of the
Indian Constitution and the Indian Penal Code or the said provisions deny its illegality.
The idea of marital rape generated international attention and momentum in the mid 20th century. International bodies started working towards the idea of marital rape and thus, to clear off the dark, hidden violence against married women. International laws came into existence, thus, proving marital rape null and void, but some countries still follow it as a part and parcel of the institution of marriage.
In ancient India, marital rape had legal and social backing which backed it up on the ground that its entitled that its right of having sexual intercourse with his spouse, sometimes interpretative verses in the
Indian Constitution or the Indian Penal Code and the varying understanding of Courts.
However, the central government alone cannot be blamed, as it is the male dominated set up of the
Indian society that we live in. The very society gives its men the power to commit such crimes and get away with it at the end of the day. Marital rape, in itself, is a part of domestic violence. It is a means of forceful control of another individual’s thoughts, ideas, body and mind. It invades an individual’s Right to Privacy and Right to live a dignified life.
Laws guarding Marital Rape in India
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The Indian Constitution
Not only is the Indian Constitution a safeguard against all the wrongs for the Indian citizens, but it also clearly demarcates what’s right from what’s wrong. Along with rights, it also crowns its citizens the responsibility that go hand in hand with it. Each citizen has a responsibility towards the State and its fellow citizens.
Article 21: Right to Life and Right to Live with Human Dignity
The Article 21 guarantees each and every citizen a Right to a healthy and a decent life without any kind of encroachment from the State or any other party. Ones this right is violated, the victim can approach the Court to seek Constitutional remedies against the violation under Article 32 of the Indian constitution.
In the celebrated case Francis Coralie Mullin v The Administrator, the Union Territory of Delhi, the Honourable Supreme Court of India stated that one cannot arrive at a perfect definition of the Right to Life. Until that, the Courts can give varied interpretations as well.
In another landmark case i.e, Chairman, Railway Board & Others v Chandrima Das & Others, a foreign woman, Hanuffa Khatoon was raped in the Yatri Nivas by four men belonging to the Railway Departement and thus later raped again by a member of the Railway department where she was gagged and abused.
Hearing her hue and cry, the people from the rented flat had rescued her and she was given Rs10 Lacs as compensation from the Court. The Supreme Court in this regard pointed out that rape is not only a crime against the victim individual but it is also a crime against the society at large. Rape disturbs the entire society as well as the victim equally.
- Right to Privacy:
The Right to Privacy is a recent judicial development where the Court realised that no individual should be subjected to encroachment to their personal space and privacy. More than 150 national Constitutions give the Right to Privacy a legal standing in their respective countries. In the celebrated case of Justice K S Puttaswamy (Retd) vs Union of India, the Honourable Supreme Court of India unanimously upheld the Right to privacy as an important and intrinsic part of the Article 21- Right to Life and Personal Liberty.
This could also be interpreted in favour of marital rape. A woman is entitled to the Right to Privacy. No one can invade her Right to privacy. More so, she is entitled to the Right to her sexual privacy. No man or woman can invade into another man or woman’s sexual privacy.
In the landmark case of Vishaka vs State of Rajasthan, the same was observed. It is a woman’s personal right. No one can infringe her Article 21 against her wishes. In the case of State of Maharashtra vs Madhakar Narayan, the Supreme Court held that a woman’s sexual privacy is not open to all according to their wishes. Its her own personal right and decision and it should be respected accordingly.
- Right to Privacy:
- Indian Penal Code, 1860 :-
The Indian Penal Code, 1860 is the main criminal code in India. It is a comprehensive act which is divided into 23 chapters and 511 sections.
The following are the relevant sections of the IPC, 1860 in this regard:
Section 319:
Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 320:
Grievous Hurt The following kinds of hurt only are designated as grievous:
- Emasculation
- Permanent privation of the sight of either eye.
- Permanent privation of the hearing of either ear,
- Privation of any member or joint.
- Destruction or permanent impairing of the powers of any member or joint.
- Permanent disfiguration of the head or face.
- Fracture or dislocation of a bone or tooth.
- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Section 321:
Voluntarily causing hurt Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 322:
Voluntarily causing grievous hurt Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes grievous hurt, is said "voluntarily to cause grievous hurt."
Section 351:
Assault who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Section 375:
Rape A man is said to commit "rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:
- Against her will
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under sixteen years of age.
Now Lets have an glance over Status of marital rape in other countries:
There are many a nations who came up with laws safeguarding the rights of womens and also they extended there laws to the rape,marital rape as well lets know about a few familiar nations who came up with it.
- United Nations of America
Marital rape is criminalised in all the fifty states in the Unites States of America. However, not all the states in the United States of America treat marital rape as a rape. But Some states like Ohio,Nevada treat them differently. But anyhow, marital rape is a crime under some section.
For instance, in Maryland, two individuals who have separated divorce are totally strangers to one another. Any sexual act between the two will be considered as rapedone against will. This part of the US law is quite similar to that of India. The same law applies to the Indian legal scenario.
However, the twist takes place when two spouses are residing together, if one of them coerces, threatens or uses force on the other, without the consent of the other spouse, then a valid prosecution can take place.
Laws in the USA vary according to the state. In some places marital rape is considered null and void by law in all its forms.
- United Kingdom
lets know about the country who ruleed us for about 200 years,In the United Kingdom, all kinds of sexual offences are dealt with under the Sexual Offences Act, 2003. In the UK too, marital rape is expressly considered a crime.Section 1 of the same talks about rape. A person is said to have committed the crime of rape.It doesn’t matter whether the victim resides with the accused or not, knows the accused or not, or is or was married to the accused or not. What matters is the element of consent. If the victim hasn’t consented to the penetration, then it will be considered as rape.
In A landmark case in this regard is R v R. In this case, the House of Lords held that it is possible under the English Criminal Law claimed that he can commit rape on his wife since the wife gave him irrevocable consent by the contract of marriage. Thus, as a reaction to this, both the House of Lords and the Court of Appeal held that there is no exception of marital rape under the English law
Now lets know why marital rape is not at criminalised in India:
There are far and against arguments to this topic lets know why its not been criminalised at in
India,
- Criminalising marital rape would be an attack to the holy sacrament of marriage
- Women can misuse the marital rape as an defence on and with every disagreement they face with their husband.
- Criminalising marital rape for women is too woman centric.
- Marital rape is okay as long as its between the husband and wife.
- Courts cannot interfere in a personal matter like marriage...............
As there are several sections in the Indian Penal Code which could be used to safeguard a woman from marital rape. There are several sections from the IPC which are violated when ideas like Marital Rape aren’t taken seriously in a marriage. However, countering the counter arguments, the idea of marital rape is one that destroyes the idea of marriage because it is a woman’s own husband that forces her for sexual encounter, whom she trusts and has faith to protect her.
As one can see that the country of England has made much progress in accepting marital rape as a flaw and making laws towards it. Not far behind is the United States of America, which has banned marital rape in few states now.
Conclusion
Taking into account the laws of other countries in comparison to the Indian nation,
India is far behind from taking a step to create an exclusive law for MARITAL RAPE at the moment. Till a new law comes into being, the provisions from IPC and the
Indian Constitution could be used as a defence. However, in the changing times every law needs to go through a change as one is discovering new things everyday and human mind is constantly evolving, and laws to be also changed according to time and the situation and socital needs. Thus, till a new law is in place, one can use the existing laws for defence but not to defeat the social evils like this.
Marital rape, without a doubt, is a violation of a woman’s right to dignity and wellbeing and thus, for a progressive country like
India to thrive, a law should be brought into place.maybe laws like Uniform Civil Code.
A nation cannot be developed and considered superior until and unless the both men and women are bought together and treated equally majourly the womens in all sectors.
To call an nation to be developed we both have to walk hand in hand to lead the nation from the darkness to light and death to life it must migrate the fears of social evils in the society then the light sparkles for the tourch of our nation and spread throughout the universe.
I want to compare the situation of womens and girls in India to an bird say pigeon in a cage and men as eagles flying in the sky is fredom only ment for eagles? I say release the pegions from the cages [remove restrictions] then we all will witness that they to can fly high above the sky and I am sure that fly more swiftly then Eagles out there.
