MARITAL
RAPE – POLITY
News:
Supreme Court to list
marital rape petitions for hearing
What's
in the news?
● The
Supreme Court said it would list a batch of petitions before it that pertain to
matters related to marital rape.
Marital
Rape:
● ‘Marital
rape’ refers to the act of forcible sexual intercourse by a man with his wife
without her consent.
Marital
rape in India:
● In
India, the definition of rape under
section 375 of Indian Penal Code does not include marital rape as a criminal
offence.
● Marital
Rape is only covered under the definition of domestic violence which is defined
under the Protection of Women from Domestic Violence Act, 2005.
Prevalence
of Marital rape in India:
● The
recently released NFHS-5 report has found that 30% women between the ages 18
and 49 years have experienced physical violence since the age of 15 years, and
6% have experienced sexual violence in their lifetime.
● But
even amongst 6% women who have admitted to sexual assault, over 80% women have
said the perpetrator is their husband. So marital sexual violence is widely
prevalent.
Criminalising
Marital Rape:
1.
Bodily Integrity is intrinsic to Article 21:
● A
woman is entitled to refuse sexual relations with her husband as the right to
bodily integrity and privacy is an intrinsic part of Article 21 of the
Constitution.
2.
Affects Gender Parity:
● The
marital rape is against basic rights Indian women, who deserved to be treated
equally under Article 14.
3.
Affects Gender Justice:
● The
marital rape is a severe form of sexual violence that is punishable in many
civilized society as a symbol of gender justice.
● A
marriage should not be viewed as a license for a husband to forcibly rape his
wife with impunity.
4.
Making Women as a Property of Man:
● Decriminalizing
marital rape simply means concretizing the patriarchal mindset in the society,
under which husbands believe that wife is their property and they can do anything
with them.
● Rape is rape, irrespective of the
identity of the perpetrator, and the age of the survivor.
5.
Ineffective Legislation:
● The
civil remedies for marital rape include protection orders, judicial separation
and monetary compensation. Thus, the 2005 Act only provides a recourse to the
woman to remove themselves from the violent and dangerous situation and does
not do anything to deter the violent behaviour of husbands.
6.
Affects Women Freedom:
● Giving
immunity to marital rape erodes women’s power to negotiate contraception, to
protect themselves against sexually transmissible disease and to seek an
environment of safety.
7.
Psychological Impact:
● It
has a deep psychological impact on the victim women. According to one study,
women victims of marital rape are twice as likely to experience depression.
8.
Rate of prevalence:
● A
study conducted by the Joint Women Programme; an NGO found that one out of
seven married women had been raped by their husband at least once. They do not
report these rapes because law does not support them.
9.
Deterrant effect:
● It
may be showed that criminalization of marital rape, serves to recognize rape in
marriage as a criminal offence and would have a deterrent effect on prospective
rapists husbands.
Challenges
in Criminalising Marital Rape:
1.
Destabilize marriage as an institution:
● It
will create anarchy in families and destabilize the institution of marriage.
● Still,
most of our society believes that the institution
of marriage is sacrosanct in society which needs to be upheld at all costs
and all procreative sex within marriage is legitimate.
2.
Misuse of law:
● It
may become an easy tool for harassing the husbands by misusing the law similar
to misuse of Section 498A (harassment caused to a married woman by her husband
and in-laws) of IPC and the Protection of Women from Domestic Violence Act,
2005.
3.
Diversity in Cultures of the states:
● Criminal
law is in the Concurrent List and implemented by the states and there is a vast
diversity in the cultures of these states.
Judgements
and Committees:
1.
Nimeshbhai Bharat bhai Desai vs State of Gujarat (2017) case:
● In
this case, the Gujarat High Court elaborately dealt with the issue of marital
rape. The Court stated that “making marital rape an offense will remove the
destructive attitudes that promote the marital rape”.
● However,
due to the non-recognition of marital rape as a crime, the Court held that the
husband is liable only for outraging her modesty and unnatural sex.
2.
Independent Thought v. Union of India (2017) case:
● In
this case, the SC has criminalised sexual intercourse with a minor wife aged
between 15 and 18 years.
● But
the SC refused to delve into the question of marital rape of adult women while
examining an exception to Section 375.
3.
Justice Verma Committee report (2013):
● It
had recommended removal of exception of
marital rape.
● The
report underscored the fact that marital rape immunity had been withdrawn in
most foreign jurisdictions.
● According
to the Report, the relationship between the accused and the complainant is not
relevant to the inquiry into whether the complainant consented to the sexual
activity.
4.
Law Commission Report:
● In
the 42nd Report by the Law Commission, it was recommended that criminal liability should be attached to
the intercourse of a man with his minor wife.
● However,
the committee refused the recommendation stating that husband cannot be guilty
of raping his wife of whatever age since sex is a parcel of marriage.
WAY
FORWARD:
● The legislature should take
cognizance of this legal infirmity and bring marital rape within the purview of
rape laws by eliminating Section 375 (Exception) of IPC.
● The
wife should have an option of decree of divorce if the charge of marital rape
is proved against her husband.
● Corresponding
charges in the matrimonial laws
should be made.
● Bringing
behavioural changes, awareness
campaigns, sensitizing the public regarding the importance of consent,
medical care and rehabilitation.
The principle of equality
and non-discrimination is important, and it is enshrined in our
Constitution. This should permeate through each law of the country including
Section 375 of the Indian Penal Code. It is high time that India realizes that
a marriage license cannot be a substitute for a woman’s consent.