IS MARRIAGE A LICENCE TO RAPE?

ABSTRACT?

Marital rape is a facet of marriage that the present-day legal system does not discuss. This blog aims to shed light on the complication of marital rape and accordingly the laws which can be used as a defense by a spouse. There are several opposing beliefs that criminalizing marital rape will endanger the notion of marriage where judges can’t interfere in what occurs between husband and wife. The momentum of increasing crime rates in India is extremely high, is shameful for such a growing, inter, broad and secular population and being the seventh largest country in the world. Marital rape is the most vital concern within the field of female rights, and it often breaks the array of legislative provisions. Someone rightly said that how a nation treats and supports its women is a good indicator of its success and development. The aim of this blog is the elucidate the essence of marital rape in India, the legislation that it abuses, a contrast of other effective countries’ laws to India’s laws, evidence of why it isn’t being legalized lately which it should be, and a finishing note on recommendations and conclusions.

KEYWORDS:?

Marital Rape, Criminalization of marital rape, domestic violence, female rights etc.

INTRODUCTION:?

“Her friends used to tell her it wasn’t rape if the man was her husband. She didn’t say anything, but inside, she seethed. She wanted to take a knife to their faces” – F.H.

Domestic violence is a persistent issue in India, and it has only gotten miserable in recent years. Domestic violence affects roughly 70% of women in India. The ‘Crime in India’ 2019 study from the National Crime Records Bureau (NCRB) was frightening but not surprising. In accordance with the survey, a woman in India is raped every 16 minutes and she is subjected to cruelty by her in-laws every four minutes. According to the analysis of evidence from the National Family Health Survey (NFHS) 2015-16, an unparalled 99.1% of sexual assault incidents go unreported, and therefore the typical Indian girl is 17 times more likely than other women to experience sexual violence from her spouse. Various legislations which have aimed to shield women from domestic abuse and harassment have overwhelmingly remained unsuccessful, despite major criminal code changes. What occurs, though, when laws shield the criminals thus putting the victims in danger?

The foregoing peculiarity is a component of the Indian Peal Code, and not a chunk of fiction. The fact that marital rape is completely legitimate in India is one among the most horrifying and patriarchal facets of the Indian Legal System. Marital rape, or forcibly having intercourse with your partner without their consent, is an unfair yet widespread method to undermine and marginalize women. It has been faulted in over 100 nations, but India is one among the 36 countries where marital abuse isn’t illegal. “In 2013 the UN Committee on the Elimination of Discrimination Against Women (CEDAW) put forward that marital harassment should be declared as a criminal offence in India” . The JS Verma committee, which was formed in the course of nationwide demonstrations “over the December 16, 2012, gang rape event” recommended the same.

About this, our country’s rape laws appear to embody the brutal perception that after marriage, women are the property of men, with little control or agency over their bodies. They deny married people identical legal rights as unmarried women under Indian rule. Marriage cannot be treated as a license for a spouse to abuse his wife physically and with immunity, as lawmakers refuse to recognize. A wife has the same freedom to manage her body as an unmarried woman. India is presently the world’s seventh largest country and therefore the speed at which crime rates are increasing is worrying and shameful for such a flourishing, multi-cultural, big, and secular country. Marital rape isn’t only the foremost pressing issue within the area of women’s rights currently, but it also violates many constitutional provisions. Someone correctly stated that a country’s growth and affair are measured by the status and esteem accorded to its women. Every person on the Earth has a point of view on whether marital rape should be punished or viewed as a natural part of marriage as a whole. The question throughout this case id whether or not the “provisions of the Indian Constitution and the Indian Penal Code” specifically protect marital rape or whether dispute its illegality. In the second half of the 20th century, the concept of marital rape gained worldwide eminence and traction. International organizations began to prioritize on the concept of marital rape so as to bring light to the grim, secret abuse against married women. While international covenants and laws have furnished marital rape null and void, some countries still practice it as an integral part of the institution of marriage. Marital rape had legal and social support in ancient India, where it had been justified on the grounds that a husband had the right to sexual intercourse with his spouse, in this context that is a patriarchal claim. In India, marital rape is heavily reliant on non-existent, often interpretative verses within the Indian Constitution or the Indian Penal Code, also as differing court interpretations. Although, the central government cannot be held wholly in charge of such a barbaric and gruesome act against women that’s still in place; it’s the patriarchal and male-dominated Indian society that we live in that’s responsible. Men are empowered by the society to commit certain crimes and escape with it at the end of the day. Marital rape is a sort of domestic abuse in and of itself. It’s a way of exerting coercive influence over another person’s emotions, ideas, body and mind. It infringes on an individual’s right to privacy and therefore the ability to live a dignified life.?

CAUSES AND CONSEQUENCES OF MARITAL RAPE:

One of it’s conventional causes for marital rape is because often husbands utilise sexual harassment to retain dominance throughout a male-dominated partnership. A ‘male strategy of sperm competitiveness’ which is stimulated by a man’s sexual envy since a woman’s sexual unreceptivity may mean to him that she has casual intercourse with another, is another prominent think about rapping an unwilling pair-bonded partner. Also, whether intoxicated or sober, violent individuals with a background of drug or alcohol dependence are more prone to sexually harass their wives. Russell also accepts that economic conditions play an important role during which people prefer to remain with abusers. Since a number of women are unemployed or hooked into their spouses for a livelihood, they are powerless to stop such a heinous act. Traumatic emotions against men, lack of self, feelings of insecurity, distress, shame, humiliation and indignation, improvements in behaviour, like increased drinking and inability to contemplate remarriage, and depressions are all long-term consequences od marital rape. Within the following cases, women are particularly vulnerable to be abused by their partners.?

Many aspects escalate the difficulties of overcoming marital rape for several women. The problems are intricate. One is that the perpetrator may be a personal friend, and recovery from acquaintance rape, all all kinds of rape, are often an extended and painful task. Since the victim is unaware is that she has been sexually abused, her fears, revulsion, depression, or rage could lead on her to believe that she is insane. Since the survivor was once trusted and revered, the survivor is probably going to experience bitter feelings of rejection and broken, faith, and she might think she can’t trust herself to understand who is safe and who isn’t. Since the rape is spilt in an important relationship, victims and survivors of marital rape often experience sorrow and loss. The survivor will still love her attacker and be broken and perplexed as a result of this. She could suffer from a significant loss of self-esteem and feel worthless as a result of someone she "loved” doing something so heinous to her. A lack of support from family and friends is another common issue. If the assailant/husband is also the family’s financial provider and the father of her children, the women could face additional challenges, during this case, confronting the suspect, reporting the crime, or even attempting to escape could lead to the loss of income, house and children, to not mention the loss of a spouse. For some women, the will to “keep a man” is crucial to their self-esteem, and they may feel compelled to put up with the abuse so as to try to do so. Both of those entanglements, also because the religious and social beliefs described earlier can help to stay women in raped marriages. Due to this entanglement, a victim can think she is responsible for the abuse. Furthermore, so as to recover, the survivors who see no way out may ignore or minimise the abuse they’re exposed to.

CONSTITUTION OF INDIA viz-a-viz MARITAL EXEMPTION TO RAPE?

The 42nd report suggested redrafting Sections 375 and 376 E to provide Explanation II which defines expressly that “a woman living separately from her husband under a judicial separation decree or by mutual consent shall be deemed to not be his wife for the aim of this section”. This is often important because the commission’s redraft of the section claimed that “a man is asserted to commit rape if he has sexual intercourse with a woman who isn’t his wife”. Another important recommendation made during this study was to possess sexual relations with a child wife. However, before proceeding to the other Law Commission conclusions, it is necessary to point out certain major shortcomings within the reasoning of the 42nd Law Commission. The reasoning behind the commission’s decision to form coerced intercourse with a judicially separated wife punishable seems to be supported the presumption that she is no longer the “wife” (de facto), and thus the spouse has no ability to impose his conjugal privileges via violence. As a consequence, all revenues for criminalising rape in marriage have been blocked.

When it comes “to the 84th Law Commission Report on Rape (The Law Commission of India: 84th Report on Rape (New Delhi: The Union of India News, 1980) they seem to be using a different and broader scheme than the 42nd report”. The writers, on the other hand, would argue that there doesn’t seem to be any broader scheme proposed. They also propose same reforms in terms of marital rape, like rape of a minor wife and rape of a judicially divorced wife. The sole substantive change they suggested was to form any rape committed by a person on his wife punishable if she is under the age of 18, but this age condition has unfortunately not been adopted into the IPC. It should be noted that the suggested amendments in these reports were introduced into the IPC as exceptions to section 375 and section 376A.

Mentions of such declarations, on the other hand, are merely “rhetoric” on the part of the judiciary and are nothing quite filler during a worthless judgement. After considering the shortcomings of the IPC and therefore the half-hearted attempts of Law Commissions, it’s difficult to escape the interference that ‘male’ lawmakers are still reluctant to abandon their notion of marriage due to legitimation of all sexual intercourse with women, for patriarchal purposes and to deny women sexual agency. As compared to the rape laws in most other countries, where marital rape has already been criminalised, India’s rape laws seem to be far more backward.

STATUS OF MARITAL RAPE IN OTHER COUNTRIES:

1. USA: Marital rape also referred to as spousal rape, is against the law in all the fifty states of the US. However, not all states within the US handle marital rape and rape within the same way. Some states like Ohio, Michigan and Nevada, have different policies about them. In either case, marital rape may be a felony under one or more provisions of the law. Its not legal in any state under the present laws. In Maryland, for instance, two people that have separated due to judicial separation utter unknowns to at least one another. Any forced sexual act between them would be treated as equivalent to rape. This portion of the US law is very close to the Indian law. However, when two partners live together and one among them coerces, threatens, or uses coercion against the opposite without the permission of the other partner, a legal prosecution may be brought. A similar scenario occurs in Mississippi, a case will be brought only if the rapist and the victim are legally married together at the time of the attack and therefore the rapist penetrates the victim against the victim’s will. This statute, however, will exclude a case during which the victim is unable to manage their behaviour due to drugs or narcotics or other substance to which the victim is exposed that numbs their senses and presence of mind. The laws in the United States differ from state to state. In some jurisdictions, marital rape is considered illegal altogether form, while in others, laws have ignored the impact of medicine and alcohol, also as other factors that are yet to be identified.

1. UNITED KINGDOM: The Sexual Offences Act of 2003 governs all kinds of sexual offences within the United Kingdom. Marital rape may be a felony in UK also. Rape is mentioned in section 1 of the same book. “If the accused penetrates his penis into the vagina, anus, or the mouth of the victim without their permission and on intent, he’s said to have committed the crime of rape. It makes no difference if the victim lives with the accused or not, whether the victim knows the accused or not, or if the victim is or was married to the accused”. It’s the aspect of the consent that is essential. It might be deemed rape if the victim has not consented to the penetration. R vs. R is a similar case related to this field. The house of Lords ruled in this case that it’s lawful for a man to rape his own wife under the English Penal Code. The appellant, the husband, said that he had the right to abuse his wife because she offered him irrevocable permission within the marriage contract. As a consequence, the Upper House and therefore the Court of Appeal all held that there is no exception for marital rape in English law.

BENEFITS OF CRIMINALISING MARITAL RAPE:

While the constitutionality of criminalising marital rape is usually considered another mechanism to review that what would be the potential benefits of such criminalization to society as a whole. Because eventual goal of transformative constitutionalism is to make an ideal and just society, it would be contrasting to allow any segment of the society to suffer and might turn to a practical examination of the advantages of such criminalization. Criminalizing marital rape and imposing harsh penalties for violations will likely discourage and set a positive precedent in Indian society. Traditional patriarchal notions will begin to melt away, paving the way for women to be treated equally and with dignity. However, strict deterrence fundamental step.

A penal discipline has two purposes: first, it deters wrongdoers from performing more offences, and second, it is a requirement for potential conduct. Salmond believes that the most powerful and important way of morally implementing any criminal system’s principles is deterrence. Martial abuse should be treated as a recognizable offence, not called “marital rape” and punished differently, in line with the 42nd Law Commission Study. This helps to confirm that criminals are mindful of the seriousness of the sentence when they commit it.?

Finally, by integrating effective legislative sentences into their domestic law framework, transformative constitutionalism will almost definitely aim to honour India’s foreign commitments, majority of which reinforce universal human rights and encourage the creation of an equitable world. This is mainly true once we are signatories to charters and conventions that emphasise these obligations. Rape is strongly condemned under international law.

As a result, criminalising marital abuse would only further the transformative constitutionalism doctrine’s superior culture by providing a husky precedent for criminal legal jurisprudence.

PROBLEMS IN BRINGING MARITAL RAPE LEGISLATION IN INDIA:

Why is there a requirement for separate legislation when the Domestic Violence Act covers sexual abuse and includes a cruelty provision for them?

The Domestic Violence Act is a civil law that only provides protection and monetary compensation for victims. Because the Act does not address criminal violence, it doesn’t provide adequate justice to rape victims.. Cruelty to women is another provision, but it doesn’t cover marital rape. In Kerala,3454 cases of domestic violence against women were reported in 2016, with the perpetrators being either husbands or relatives. As a result, if a woman approaches the court on the grounds that she has been raped by her husband, the court may grant her civil remedies or may grant divorce on the grounds of cruelty, but no specific punishment is specified for the one’s that commit such a crime.

Few argue that if a law prohibiting marital rape is passed, there will be a substantial number of false cases. Many other crimes have false cases, reported, but that doesn’t mean that there are not any crimes committed in our country. So, if a separate law is passed for marital rape, false cases are going to be filed, but these cases can be brought down and therefore the victim’s grievance can be addressed through proper investigation and implementation.

It may be difficult to prove forced sexual intercourse, but a criminal offense cannot go unpunished because it is difficult to prove. Even in many cases of rape, proving is difficult. When there is no other proper evidence available, circumstantial evidence plays huge role in proving rape.?

Medical evidence can also be used to prove the defendant’s guilt. Though medical evidence cannot determine whether sex is forced or not, other indirect evidence can reveal the crime’s occurrence. A history of physical violence, the victim’s medical check-up, witness testimony, and therefore the husband’s possible admission in electronic communications could all be enough to prove his guilt. If there’s a legal provision for marital rape, the law will assist in punishing the husband, at least when there is enough proof of forced sexual intercourse.?

PREVENTION OF MARITAL RAPE:

At each of these levels, personal, community and societal prevention of partner abuse is called for.

To end harassment on a private level, men must treat women as equal partners in their relationships. Men’s conduct will only be modified if courts, state legislatures, and other national legislative bodies hold men in charge of their acts and strive to empower all citizens, no matter what gender.

Education that highlights gender equality and problem-solving skills in addressing interpersonal problems, also as financial funding from both private and public sources at the global, state, and native levels, can also be used preventive initiatives at the neighbourhood level.

Prevention at the social level necessitates the reform of societal structures and systems that refuse to serve all the citizens of community equally, no matter what gender. It therefore necessitates the event and execution of socio-political transition plans, which is everyone’s responsibility and obligation.

SUGGESTIONS AND FINDINGS:?

Women must escape from social taboos and cultivate a practical mindset. It’s imperative that India sees that marital rape is criminalised. The present laws should be repealed, and the new laws must be instituted. In order to stop further instances of such crimes, the judiciary must make it easy for women to offer her to be heard and provide her appropriate redress. Some issues are more easily understood and trusted if seen through the eyes of an empathetic understanding and not through the lens of sympathy.

It is crucial that the Women’s and Non-Governmental cooperation Commissions make the legislature conscious of the need of passing targeted legislation. Policies on this issue must already be put in situ, and therefore the views of the international community should be recognised and upheld. Marital rape victims should be given the support they need to affect the emotional trauma and reclaim their dignity.?

Finally, in my opinion it is also important to note that the expression marital rape usually depicts that the women is the one who is victimised. In today’s more gender-equal world, the concept of equality must not be restricted, but fully explained in the view of marital rape. It should even be defined to incorporate both victims. It might sound a little to good to be true within the context of the ever-changing urban setting and rural scene, but it’s actually realistic. In almost without question, women endure the responsibility, even as they are “the weaker sex”.

CONCLUSION:?

If rape and other crimes are legislated, women have a legal mechanism to approach police stations or courts, but the victims of marital rape don’t have this as a possible course of action. Married women are oppressed by their own families, and even though they overcome these barriers and approach a police station, their case isn’t recorded. In our country, married women are subjected to such ironic situations. Only by legislating and criminalising marital rape can this problem be solved for married women. There would be no justice for victims of marital rape if no legislation was enacted, as any provision under existing laws would be insufficient to supply them with adequate remedy and justice. As a result, instead of supporting a law criminalising marital rape based on some silly and archaic reasons, our government should pass a law criminalising marital rape based on the merits of bringing and implementing such a law.

It is a fair and not a difficult or contentious thing to do: teaching both men and women that they are enough for one another and no on in the face of a person or group, shall be educated about violence against them and rape shall be named, regarded, especially as a heinous criminal offence that has any acts done within the walls of a house can only mean one thing, so why use two different yardsticks to evaluate it ?

The same person will face criminal penalties under Indian Law if he’s married to the victim of rape on the Indian side or provides favour or gives food and other goods to a woman without consent. A wife’s body is unconditionally hers; she doesn’t need to offer it up unless she wants to. To this end, a woman in Indian society is treated not as an individual, but an object that has been “gifted” “exposed for his exclusive use” until she gets married. The marriage doesn’t render her legal person immune from spousalations following such marriage; they will still be enforced, and she cannot simply cop out of her subjugation.

One of the petitioners, who was a victim of marital rape herself, stated that she was told by her family to never accuse her husband of such acts and was threatened by her brother if she leaves the family she would be divorced, but the family cut all ties with her due to her betrayal of their beliefs. This is what a wife/mother-on-victim person experiences during a case of marital rape; it destroys the family.?

When you confront the accused, you give him or her an opportunity to run. The overreaching problem with this whole matter is that it has been welcomed that marriage is immutable and that we must follow our husbands blindly. Women especially, are expected to tolerate men’s temperamental moods and whims, abusive behaviour and delusional ideas, outbursts of passion and illogical outbursts of passion. Despite that it being true, however, it’s not a definition of marriage. It’s expected to flourish in mutual respect and reciprocity. Likewise, neither are going to be placed on an equal playing field, nor kept low will mean the dominating one will dominate.?

The society is in dire need of simpler treatment for this shameful practise. People may speak out against the difficulty of marital rape or help victims of it to find ways to hide it from their loved ones, but that’s not necessary for true and deep-seated change to occur. Its enough for women to mention, “no we cannot tolerate it.” Or to severe their connections with their family to accomplish the ultimate goal ending the matter. The women are going to be more apt to succeed to reach out to help other women, because they’ll be approaching equal grounds for advocating for their rights will be the rule of law will expand Forced sexual acts to be punishable, they ought to be a part of a coercive sex under Section 375 of the Indian Penal Code. It shouldn’t be considered to be an excuse if a married couple or if any relationship exists between the victim and the offender. Likewise, the very fact that the victim wasn’t physically strong or was not resistible at the time of the assault shouldn’t have any effect on the degree of the sentence for rape. Despite this, the fact, society must mention the difficulty and teach young women the do’s resistance once they perceive they’re being restricted in their abilities to speak out. People must be educated about the importance of anti-ethics so that both it does not impede justice and illiteracy itself doesn’t pose a barrier to enforcement of it.

RESEARCH METHODOLOGY:

In order to finish the blog, the author used the doctrinal research method and gathered data from a spread of secondary sources like articles, journals and books. In addition, all landmark cases concerning marital rape were referenced, but all of the case laws handling this subject. Other sources like the internet were also utilized for the blog.