Martial Rape
Like other forms of domestic violence martial rape is about exerting power and force on one person without their consent and will.
Nearly 1 in 10 women has been raped by intimate partner in her lifetime including
•complete forced penetration
•Attempted forced penetration
•And completely in the possession of drug especially alcohol.
Rape by intimate partner are more common than the rape by stranger.
Rape:-
First of all we understand what is rape as it is defined under section 375 of Indian penal code (IPC) that which includes all forms of sexual assault including non-consensus intercourse with a women.
The rape has been committed under following categories:
1. Against her will.
2. Without her consent.
3. 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.
4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such a 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.
6. With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Martial rape:-
The concept of martial rape in india is the epitome of what we called ‘Implied consent’.
Marriage between man and women here implies that both have given their consent for sexual intercourse.
However,
Martial rape is unwanted sexual act done by a ex-spouse or by spouse or against the person’s will obtained by force or threat of force , intimitation, or when a person is unable to consent.
These sexual act includes:-
•Intercourse(anal or oral sex)
•Forced sexual behaviour(no consent
• =As per current law a wife have to give her consent for sex before entering into martial relation
• =Non – criminalisation of martial rape in india emirates from exception to section 375
• =However, exception to section 375 exempts unlawful sexual intercourse by a man with his own wife who is above the age of 18, is not sexual assault.
Case laws:
Martial rape leads to Violation of article21,
According to the supreme court, rights stated in article 21 are right to health ,privacy, dignity, safe living conditions and safe environment among others.
•=In the case, Suchita shirvastva V. Chandigarh administration the court had stated that the right to make choices related to sexual activity with right to personal liberty, privacy, bodily integrity under section 21 of the constitution.
•=In justice K.S puttuswami(retd.) vs Union of india, the supreme court recognized the right to privacy as the fundamental right to all the citizens. The right to privacy includes decision related to intimate relation
In all the above judgements, the supreme court had recognized:-
Right to abstain from sexual activity for all women irrespective of their martial status as a fundamental right conquered by article 21 of constitution. Therefore forced sexual relation is a violation of article 21 of constitution.
Author: Tanveen Kaur,
Chandigarh university/2 year/law student