Marital Rape

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Marital Rape

MARITAL RAPE

INTRODUCTION

The sacrosanct ideal; Indian marriage mirage vented by the popular Indian media is contradictory to the realities a women faces. The most prevalent form of assassination of a womens integrity is marital rape; it is latent in the veils of the holy reunions of souls, marriage.
Against Marital Rape, it is often argued that the husband retains unquestionable rights, and that her wife must legitimately submit to him; this right can not be revoked because it was obtained through shared consent.

This robs a woman of her physical integrity and sexual power. Therefore, it goes
against the main women’s rights philosophies. The judiciary needs to be forced to recognize rape as a crime inside a family.

Around 10-14 per cent of married women in the United States are raped by their husbands. About one third of women say ‘unwanted sex’ with their partner. Historically, most of the rape laws read that rape was coerced into sexual intercourse with a woman who was not your wife, granting husbands a rape license. On 5 July 1993, in all 50 states, marital rape became a felony under at least one part of the codes of sexual assault. There are no exemptions from rape claims given to husbands in 20 states, the District of Columbia, and on federal lands. However, there are still some exemptions granted to husbands from rape prosecution in 30 countries.

Husband is excluded from the use of force when his wife is most helpless (e.g., mentally or physically disabled, unconscious, sleeping, etc.) and unable to agree to it. Women raped by their husbands are likely to be raped several times — often twenty times, or more. They do not only witness vaginal rape but also oral and anal rape

VIOLATION OF ARTICLE 21

Article 21 states that no person shall be denied his or her life and personal freedom except in compliance with the procedure laid down by law.[2] In recent years, courts have set out to recognize the right to abstain from sexual intercourse and to be free from unwanted sexual activity embodied in these comprehensive rights to life and personal freedom[3]. This may be completely ruined because her husband has all the power over her body and can expose her to sexual intercourse without her permission or desire, because such an act would not be appropriate and will amount to rape.

This ends up women being used as a baby-making system where her right to body autonomy and reproductive rights is out of the question and ridiculous.

Recognizing that reproductive methods can be used to procreate as well as to prove procreative is essential. This view put forth by J. Verma and that marriage is in newer times is called an equal relationship, and no longer one in which the wife must be the husband’s subordinate chattel.

VIOLATION OF ARTICLE 14

Article 14 of the Constitution states that ‘ the State shall not deny any individual equality before the law or equal protection of laws in the territory of India. ‘[4] A woman was not treated as a legal entity during the drafting of the IPC in the 1860s. She didn’t have as many freedoms as a man has. Exception 2 further reinforces the establishment of patriarchy in the Victorian Period even though times have now changed.

At this time, all Indian laws passed were strongly inspired by English laws and Victorian norms. Victorian patriarchal norms did not take men and women into account as equals, they did not allow married women to own property and converged her individualities. Under the “Doctrine of Coverture” the individualities of the husband and wife converged. The security of women is of great importance to the modern world.

A woman, whether married or unmarried or divorced or separated or widowed, has the right to sexual autonomy inherent in it. The justification for classifying a married and unmarried woman in has to become non-existent, so making an exception to Section 375 is arbitrary, irrational and violative of the equality doctrine. There is no logical reason for the designation, rather it frustrates Section 375 ‘s purpose: to protect women and to prosecute those engaged in inhumane rape activity.

SOCIAL AND LEGAL PARADOX

Marriage is a sacred institution, and violating it will destabilize it, according to the parliamentarians who turned down the Marital Rape Bill. Bizarrely troubling is the connection they have built on preserving the institution of marriage and not criminalizing Marital Rape. This reinforces the idea of married men’s common of needing their wives’ continuous approval for their sexual satisfaction.

A traditional marital rapist believes in a patriarchal society that he should “rule” over his wife under any situation. This feeling extends to sexual matters, not only does the man achieve a few minutes of sexual pleasure but he physically overpowers the wife, and she submits to her.

Most marriages live in India because women are secretly subjected to violence and harassment within their ties. The tradition of women’s “obedience,” “tolerance,” “compromise” is propagated to preserve and uphold the “honor,” the “pride,” and the “values.” If she doesn’t adhere to these then she’d be seen as an anti-family fighter weakening family ties and building a bedroom battlefield. Decades of social conditioning have made most women impotent, but with the emergence of more and more women coming to the fore for their rights, this is changing.

Proving non-consent
Proving rape by a spouse can often be more difficult, as proving that the victim did not give her consent can be more difficult. Although this may be relatively easy to prove in the case of stranger abuse, married partners usually have consensual intercourse, proving that the sexual contact was not unconsensual may require proof of marital conflict or separation.

CONCLUSION
Despite being one of the most atrocious crimes one might commit against a woman, in the eyes of law Marital Rape was ignored. Therefore, the above findings specifically reflect that Articles 14 and 21 of the Constitution are a transgression of Exception 2 to Section 375 of the IPC. It is time for Indian jurisprudence to recognize and abolish the extreme existence of this legal provision.

 

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Footnotes:

[1]Independent Thought v. Union of India, (2013) 382 SCC (2017) (India)
[2] India Const. Art. 21.
[3] as “Right to abstain” from sexual intercourse is a long recognized principle of Indian Constitutional jurisprudence . Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak Singh v. State of U.P, (1963) AIR SC 1295 (India)
[4] India Const. art. 14

 

Author: Lavanya Rai,

Intern at Lawportal,

Email: vaishalirai302@gmail.com

Author: Lavanya Rai,
ICFAI LAW SCHOOL, IFHE, HYDERABAD

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