‘Marital Rape: The least talked about’
Rape in any form is an act of
degradation and violation. Before proceeding towards ‘marital rape’, let us
understand what the law has to say about rape.
Under Article 325 of
Indian Penal Code (IPC) defines 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:
First:
Against her will
Second:
Without her consent
Thirdly:
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.
Fourthly: With her consent, when the man knows that she
is not her husband and that her consent is given because she believes that he is another man to whom she
is or believe herself to be lawfully married.
Fifthly:
With her consent, when at 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.
Sixthly:
With or without her consent , when she is under 16 years of age section 376 of
IPC provides punishment for rape
.However according to it, sexual intercourse by a man with his own wife not
being under 15 years of age is not rape.
Marital rape is non-consensual sex in which the perpetrator is
the victim’s spouse. Marital rape is like a double edged sword. On one hand it
is a form of domestic violence and on the other a form of sexual abuse. In
December 1993, the United Nations High Commissioner for Human Rights published
the Declaration on the Elimination of Violence against Women. This establishes
marital rape as a human rights violation. "Marital
rape is an offence under the Indian Penal code when the husband and the wife
are separated though still married to each other under section 376B of the
Indian Penal Code," says senior advocate and former additional solicitor
general, Indira Jaising.
There are differences between a
rape by a stranger and rape by a spouse.
Ø Rape
by a stranger even though traumatic is mostly onetime event whereas in
case of marital rape it is rarely a one time. It is repeated a number of times
and it affects the victim’s reactions.
Ø Rape
by a stranger is criminalized whereas it is not so in case of marital rape.
In
India, many people both men and women
have the pre notion that after marriage, a man has the right to demand
sex from his wife whenever he wanted and may even use force. Marriage, in this
respect is seen as a form of consent for sexual intercourse. Does marriage
really work as a form of consent in India?
Marriage
in India is mostly fixed by the girl’s father and the girl has little say in
it. When there is no consent to marriage how can marriage signal as a form of
consent for sexual intercourse. Moreover a woman may not be willing to indulge
in sexual activity on a particular day, does that mean that the men has the
right to use force?
From
the beginning of the 19th century women’s movement in USA activities
challenge the presumed right of men to engage in forced sex with their wives.
In
India, the UPA as well as the NDA government don’t have any plans to
criminalize marital rape. According to an UN estimate, 75% of the married women
in India are subject to marital rape. The main reason given by the Union Home
Ministry for non-criminalization mainly hovers around the idea that marriage is
sacred. How can marriage be sacred in true sense when the wife is constantly
undergoing physical, mental and sexual tortures? A ritual for name sake does not
make marriage sacred. It is not logical, rational and justifiable to not
criminalize marital rape on grounds of sacredness. Sacredness is not above
human rights and right to live with dignity. The very idea of sacredness will
continue to evolve with time but the basic rights of people will remain the
same. Forced sex is a form of domestic violence covered under the Domestic Violence
Act. It is a civil law and only offers protection to the victim, but no scope
of punishing the perpetrator, which is why a criminal law against marital rape
is needed. The added difficulty here is to prove that rape has taken place.
The
Justice Verma Committe report of 2013 on sexual
violence laws which said that the
exemption for marital rape “stems from a long outdated notion of marriage which
regarded wives as no more than the property of their husbands” and recommended
the removal of the marital rape exception.
Comments
Post a Comment