Introduction
In India, marriage has been a fundamental institution of society and is considered to be sacred and marriage is an affair of prestige and power to women. Throughout history, many traditions and customs surrounding this institution have changed, but its sacred position remains constant. The tradition of marriage started in the Vedic period, fundamentally a transaction between two families for political and social standing, where the brides were no more than mere objects of trade. Having evolved over the years, the modern idea of marriage is much more progressive. Yet, the impact of this ancient ideology is still prevalent seeing as how marital rape has still not been criminalized. Our contemporary society has a prevalent culture of ‘arranged marriages’ where the consent of the individuals is foregone, especially the consent of the woman which in itself contributes to the ideology of ‘implied consent’ to sex in marriages. This very ideology forms the foundation for the legality of marital rape. Our nation views families as a fundamental unit. Our social construct of a typical family is based on patriarchal notions where the man is an authoritarian and the woman is expected to sacrifice her needs, rights, and desires to ‘preserve the family’. The woman is always considered less or inferior to the man in the marriage. The criminalization of marital rape has the potential to disturb this social construct and thus the refusal to acknowledge rape within a marriage.
Legal Status in India
In India, there is no law with regard to Marital Rape. The Indian Penal Code (IPC) in Section 375 states that a man commits ‘rape’ if he has sexual intercourse of any kind with a woman against her will, without her consent, or with qualified consent. But exception two of Section 375 says that if a man has sex with his wife who is over the age of eighteen, it is not rape, irrespective of her consent. This law gives a free license to the husband to rape his wife and essentially grants ownership of the wife's body to the husband denying her dignity, bodily autonomy, and individuality. The legal recourses available to victims of marital rape are Section 498A of the IPC,1860 which punishes cruelty against the wife by her husband or his relatives5, and the Protection of Women from Domestic Violence Act, 2005 (PWDVA) which recognizes marital rape as a form of domestic violence under sexual abuse but not rape and provides a civil remedy of legal separation from the husband and not persecution for committing a crime which would be rape if the perpetrator was not her husband. This exempts the husband from any criminal punishment for the heinous crime of rape.
Rape affects the physical and mental health of a woman causing lasting trauma. An action of rape where their trauma is dismissed and there is no proper legal resource is detrimental to their life. Therefore, it is imperative to criminalize marital rape to protect the rights of married women over their bodies. The legality of marital rape also violates important precedents like Joseph Shine v. Union of India, which upheld the sexual autonomy of a person irrespective of their marital status, and K. S. Puttaswamy v. Union of Indiawhich upheld the ‘right to privacy’ concerning sex. The legal position of marital rape violates the ‘Right to Equality’ under Article 14, the ‘Right to Protection of Life and Personal Liberty’, ‘The Right to Dignity’ under Article 21, and the penalization of any act that is ‘derogatory to the dignity of a woman’ as mentioned in the Constitution. Exception two of Section 375 of the IPC violates the ‘Right to Sexual Privacy’ held in the State of Maharashtra v. Madhukar Narayan. But the law also states that sexual intercourse between husband and wife is not rape given that the wife is not under 15 years. This exception was invalidated by the Supreme Court in Independent Thought v. Union of India. Sex with a child is rape, regardless of consent and marital status.
The law protects women below the age of 18 years and women who have been judicially separated from their husbands but does not address the right of a married woman above eighteen years to say ‘no’ to sex in a marriage. It impliedly gives the husband the right to have forced sex with his wife. It devalues the right of a woman to equality, her right against discrimination on the grounds of sex, her right to sexual privacy, and her right to good health, and makes women out to be the sexual property of their husbands. Despite all this, marital rape is still not considered to be an act worthy of criminal prosecution in India.
Judicial Standing
The Judiciary has taken a positive stand on marital rape by upholding the right of a woman to a dignified living and her freedom to say ‘no’ to sex in a marriage. In Nimeshbhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court stated that “marital rape is not a privilege of the male partner in a marriage, but instead a violent conduct and an unfair treatment that should be criminalized” and that “the law must uphold the bodily autonomy of all women, irrespective of their marital status.” The Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka had stated that marital rape as an exception cannot be used as a license to commit crimes against the society. However, some argue marital rape is not a judicial issue but must be addressed by the legislature. The lack of law or legislature dealing with marital rape leaves the judiciary without any legal remedy to protect women from this injustice.
Justice D Y Chandrachud had earlier made statements voicing his opinion on marital rape. His statement as recorded was–“Does a woman or man lose their degree of sexual autonomy after marriage? According to me, ‘no’. The right to say ‘no’ to sex should be there after marriage also.” Recently a petition had been filed in the Supreme Court to strike down the exception that dismissed marital rape.
Conclusion
Marriage is a social institution that offers women a lifestyle and an ideal way to live a life and allows women to live their life ‘romantically’ in a socially acceptable way. For the victims of marital rape marriage turns into a horrific endless cycle of violence, wherein they have no escape and are bereft of legal protection. The problem of marital rape is not merely a legal issue but a deep-rooted social issue questioning the institution of marriage upon which society stands and to be rooted out need nothing short of a social reform and law acts as a tool of social reform must act upon to prevent this social evil. It also highlights the failure of legal institutions in striking a balance between social morality and ensuring justice. Khalil Gibran writes in his poem On Laws, “What shall I say of these save that they too stand in the sunlight, but with their backs to the sun? They see only their shadows, and their shadows are their laws”. The laws made by a patriarchal society shall remain patriarchal.
Authored By: Shraavya S.
Christ (Deemed To Be) University
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