What is Marital Rape?
Marital rape is the act of sexual intercourse with one’s spouse without the consent of the other spouse.
Although it was once widely unrecognized by law and society as wrong or as a crime, it is now recognized as rape by many societies around the world. The Centre has pleaded for not criminalising marital rape in an affidavit filed in response to pleas seeking its criminalisation.
|Section 375 of the IPC holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”|
Why do we need to understand Marital Rape?
- Marriage is an equal-relationship contract and not a one-time consent to everything.
- By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21, by differentiating them from unmarried women.
- Exception under Section 375, violates Fundamental Rights of the women under Articles 14, 15, 19 and 21.
- The legal exception to the rape laws gives men unequal privilege.
- There are several studies to show the prevalence of non-consensual sex with their wives, and physically forcing their wives to have sex.
- Marital rape victims suffer from prolonged psychological traumas which cannot be treated.
- The high-level committee headed by Pam Rajput of the Ministry of Woman and Child Development in its report ‘Status of Women in India’, criticised the legislature for its failure to criminalise marital rape
- Till date, 51 countries have criminalised marital rape, beginning with Poland in 1932. Even United Kingdom has made marital rape a criminal offence in 1991, whose common law was followed by India.
- The Justice Verma committee had recommended removing the exception made for marital rape in the law.
Arguments against the criminalisation of marital rape:
- It “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.
- Other countries, mostly western, have criminalised spousal rape does not necessarily mean India should also follow them blindly. Since India has to consider problems like poverty, illiteracy, religious beliefs etc.
- It is very subjective and intricate to determine whether consent was acquired or not.
- It is prone to misuse. “Rising misuse of Section 498A of IPC”, known as the dowry law, “for harassing the husbands” it makes the decision ambiguous.
- It also mentioned that criminal law/ marital rape law was in the Concurrent List and implemented by the states, the cultures of which are varied to a large extent which have to be factored in.
- Law Commission on Review of Rape Laws has examined the issue but not recommended the criminalisation of marital rape.
Challenges in criminalising marital rape:
- What may appear to be marital rape to an individual wife, it may not appear so to others.
- There can be no lasting evidence in case of sexual acts between a man and his own wife
- Data from the National Crime Records Bureau and the National Family Health Surveys show that only about 0.6%, or one in 167 incidents of sexual violence by husbands, are reported.
- The prevalence of Child marriages and in many cases, women are forcefully married off
- In India, marital rape is not defined in any statute or law, an issue several women’s rights advocates have argued against.
- The patriarchal nature of Indian society, ingrains it in the minds of men that women are expected to comply when their husbands demand sex.
- The victim suffers physical abuse, and she also has to undergo mental trauma of her dignity being violated.
A woman has a right to bodily integrity, sexual autonomy and reproductive choice.” With the high pitch slogans of Beti Bachao Beti Padhao, the Beti having not the right for her own body is utterly wrong. Only when individual rights are not sacrificed and two partners are treated equally shall marriage as an institution continue to survive. However just legal remedies are not enough to curb this problem, Social menace needs the consideration.