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MARITAL RAPE: THE SPOKEN SILENCE.

INTRODUCTION


In 1900 BC in Babylon, a man could be sentenced to death for forcing sex on someone’s wife or daughter on the ground of destroying someone else’s property.


In various other countries during ancient times rape laws are defined as a property crime against the husband or father and not against the women as an individual.


Later, though modifications are done in rape laws and it became a crime against women as an individual on the grounds of sexual purity (which according to the society, cannot be destroyed by her husband).

Under the influence of these rules and attitudes, the Indian penal code was formulated in 1860 in which section 375 which talks about rape laws, especially excluded marital rape from the definition of rape.


INDIAN LAW


The provision for rape in Indian law is mentioned in the Indian Penal Code, 1860. There are two provisions for rape in the Indian Penal Code, 1860:


Section 375- defines rape and what constitutes rape. Further, there are two exceptions are given in this section.


Exception 1- a medical procedure or intervention shall not constitute rape.

Exception 2- sexual acts by a man with his wife, the wife not being 15 years of age, will not constitute rape under this section.


In 2017, a PIL by an NGO challenging this intelligible classification and claiming that married women over 15 years of age should also be able to afford this protection. The Supreme Court concurred with these averments to some extent and extended the age limit in section 375 from 15 years to 18 years.


These exceptions were made keeping in mind the Victorian culture during that era where husband and wife were treated as the same entity legally and therefore, no concept of marital rape was inserted in our Indian law well.


Section 376- States the punishment for rape.


As per the current law in India, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital decisions.[1]


AMENDMENTS/CHANGES


  • 1983- 2nd Amendment act in criminal law

  • 2002- Amendment in Indian Evidence Act

  • 2012- Enforcement of POSCO Act

  • 2013- Amendment did in criminal law and does provide any recommendation for marital rape.

  • Justice J S Verma committee had advised that the law should specify that a marital or another relationship between the perpetrator and victim cannot be a defense against sexual violation. This committed was constituted to recommend amendments to criminal laws after Nirbhaya gang-rape case. It sought “an exception for the definition of marital rape in the existing laws”.

  • United Nations Declaration on Elimination of Violence against Women defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women including threats to such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private.


In 2013, the CEDAW recommended that the Indian government should criminalize marital rape.


LANDMARK JUDGEMENTS ON MARITAL RAPE


  1. C R VS the UK- The judgments were given by the European Commission of Human rights that “a rapist remains a rapist regardless of his relationship with the victim”.

  2. Shimbhu and another VS State of Haryana[2]- Supreme Court held that the offer of a rapist to marry the victim cannot be used to reduce the sentence prescribed by law. Compromises in rape cases are out of the question according to our Supreme Court but this principle does not reflect anywhere in the laws of India.


IMPACT ON RIGHT TO EQUALITY


Article 14 of the Indian Constitution which talks about the right to equality to the citizens of India gets violated due to this exception given under section 375 of the Indian Penal Code, 1860. Exception 1 of section 375 gives no punishment to the husbands who do nonconsensual sex with their wives and on the other hand section 376 punishes a man who does non-consensual sex with an unmarried girl. Therefore, this clearly shows that this exception discriminates between a married and unmarried girl and treats them differently.


But according to Article 14, every citizen should have equal rights and should be treated equally which means married girls should also have the same right of their body and take decisions related to that as an unmarried have.


In the case of Justice K S Puttuswamy v. Union of India[3], it was held that the right to make sexual decisions is expected in the right to privacy. This does not even exclude women who are married and are above the age of 15 years.


In the case of State of Karnataka v. Krishnappa[4], the Hon. SC held that sexual violence instead of the brutal category is an unlawful act and against the right to privacy and sanctity of woman and also held that sexual intercourse without consent amounts to physical and sexual violence.


GLOBAL SCENARIO


  • In the majority of countries of the world, marital rape is considered as a crime just and equal punishment is prescribed to the offenders there as the other rape cases


.Only 36 countries of the world either don’t talk about marital rape or have not criminalized marital rape in their respective countries in which India is also present. This is something which India should learn from other countries who already criminalized marital rape and should strike down this law of the British era that was formulated in the year1860.

· In Australia, a person can only marry legally at age of 16. However, every state considered marital rape an offence in the year 1991.


  • In New Zealand, a person above 16 years can only, marry with parental consent. Marital rape was considered a crime in the year 1985.


WHAT CAN BE DONE?


With the above points and paragraphs, it is very clear that there is a problem in Indian law which not only takes away the right from the citizen of its country but also make the citizens suffer.


Therefore, such ill laws have to be revised and struck down in the earliest possible days. To work in favor of India’s citizens the government will play an important role, it should strike down this law by bringing an amendment act.


Many political leaders including female leaders and senior justices think that girls after the marriage have no individuality and husbands and wives are treated as a single entity. Also once a girl agrees to marry a boy she gives her consent for a sexual relationship for her entire life which is completely ill-thought and needs to be modified.

In a country like India, many people treat their political leaders as their ideals, and such types of comments or thinking of our political leaders influence the citizens as well. Therefore, this change will take time but it will happen if the government as well the people of the country behave as responsible citizens.


Further, some awareness has also to be spread among married females about what is consent, what are their rights and how they can claim those rights because in India marriage is considered as a sacrament and married women treat their husbands as their god due to religious customs and mindsets engraved in the minds of the people.


Therefore, a step taken now will save many things and will gradually help in formulating the mindsets.


CONCLUSIVE REMARKS


There were various debates and discussions held on this topic but no permanent solution came out of it. International center for research on women and United Nations Population Fund in 2014, National family health survey, etc. are some of the surveys conducted which showed that the majority of sexual violence done on women was within the marriage.


By the research of the UN population fund, it was discovered that more than two-thirds of a married woman in India, between the age group of 15 to 49 forced to provide sex. UN committee recommended India to look into these injustices against women and eliminate these discriminations against women. This was also fortified in March 2016, as no noticeable efforts had been made till now to encourage married women that they also have right over their bodies just as unmarried women have.


These surveys indicate the seriousness of the matter and instead of romanticizing everything and leaving the discussion on rituals and customs important steps according to the growing and modern needs of the society should be taken.

[1] This is considered implied consent.

[2] 2013

[3] (2017) 10 SCC 1

[4] 2000 CrLJ 1793, JT 2000 (3) SC 516



Navin Kumar Jaggi

Harshit Garima


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