‘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 19^th 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.

                       

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