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An estimated 6-minute read

Analysis: Rape within wedlock

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As per Section 375 of  IPC, sexual intercourse acts by a man with his own wife, the wife not being under 15years of age, is not rape. Under Indian System of Law, marital rape is not  an offence. It took us so many years from the rape case of tukaram to nirbhaya gang rape case, to open our eyes and frame laws according to the need of the changing society and witnessed, the strengthening, of the sexual assault legislation. Despite these recent criminal amendments, we have failed to receive the attention of the law-makers to provide a proviso where a man who rapes his wife can be punished under the criminal laws of our country.  It is evident even after when Justice Verma Commission recommended for making marital rape as criminal law was refused on the ground that it will ruin the institute of marriage. There other sections also in the criminal law which are left untouched and are of bias nature to man or women individually.

Whether marital rape is an offence or not has been widely debated and still ongoing subject of a debate within the Parliament and outside the Parliament.  The Recent issue, going on or off -air is the hot seat discussion, on the statement, passed by one of the prominent minister of India, in a response to a question if the government plans to criminalise marital rape “Laws of Marital Rape, not applied in Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,.” Where the government too has refused to include marital rape as a crime under the purview of  Section 375 of the Indian Penal Code.

 If we see around, there are enough of reasons one will find and give as to why not to criminalize marital rape, one of  the explanation to this sort of a denial given is that, it’s also the willingness of the individual in the society to accept the brutal fact that the non-consensual sex between the married partners can be subjected as the criminal offence. It is justified that one has to be ready to accept the changes & reforms to seek the fulfilment of the Constitutional moto. There was a time when we had customs prevailing in the society likewise of child marriages, dowry ,sati ,etc., but contrary to them, we made uniform laws, in order to prohibit such practices and made them illegal with prescribed punishments and penalties as per the relevant law applicable to it. This was done with a foresight realizing the long run interest of the people of our country even though there was complete absence of any willingness to accept the same but we still imposed those laws upon them for their ultimate welfare and benefits. So why not law on a Marital Rape declaring it as an offence?

Man is a rational living being but it is unfortunate that sometimes it resorts to animal behaviour. The World has shrunk because of technological and scientific developments, and there are widespread talk of human rights and human dignity but when it comes to atrocities against the women, especially like rape, we seem to turn a blind eye. It was only in 2006 where one may find the instance, where for the first time Indian Legislature recognized marital rape as an offence when the revised Protection of Women from Domestic Violence Act was implemented. And, as a result, the IPC expanded its definition of spousal cruelty to include emotional, verbal, and economic abuse of a woman. The only clause that specifically addresses marital rape is in relation to judicially separated partners under section 376A, IPC.

The most popular argument quoted against the idea of criminalizing marital rape is that “it is capable of destroying the institution of marriage, and this will put the entire family system under immediate stress and pressure de-meaning the meaning of a family, the family is ran with respect, love and affection amongst its members, and each family is different from other so the idea of criminalizing the act of sexual relations amongst the partners will invite unwanted threatening and mental agony to its members ”. Why it is so difficult to understand the Protection of life and personal liberty through legal procedure will be meaningful to women only when an atmosphere free from violence is created through the application of the Rule of Law. And, moreover one must understand that any sort of sexual offence is the heinous wrong which is committed not just against some women or men or not against to the respective families of the spouse in question but against the whole society. We have also passed legislation on domestic violence in 2005, to protect the interest of the women, even though, it is the acceptable fact these days that it is being misused by them but this has not stopped to provide the protection to the ones who really needs and seeks it. The idea is that we do not stop making laws or stop their implementation because of the fear of getting them misused, we have to come up with the reasonable filters, preventing any sort of such sick intentions. There have been so many reports and surveys conducted by non profit organizations which one may come across and take a look ‘how the act of the marital rape i.e. wives are subject to force to have sex by their husbands.,’ are on-going and we are just being blind & deaf  to it.

Some legal experts believe that the government is reluctant to criminalize been marital rape because it would require them to tweak laws based on religious practices, including the Hindu Marriage Act, 1955, which says a wife is duty bound to have sex with her husband. Denying sex, according to traditional Hindu beliefs, goes against the duties of an ideal wife.  So, “one cannot criminalize marital rape unless supplemented with amendments in the Hindu Marriage Act”. The amendment in laws should be done simultaneously in every other Indian laws of similar nature which creates complex situations and objectifies existence of a women challenging at the same the definition of a property under Transfer of Property Act , if the women is considered as the property of the husband.”

Marital Rape is no less an offence than murder, culpable homicide, or rape per se. It denigrates the honour & dignity of a human being and reduces her to a chattel to be utilized for one’s self convenience and comfort.  It reduces a woman to a corpse, living under the constant fear of hurt or injury who are often compelled due to the existing circumstances around them to commit suicide. Nobody tries to understand & acknowledge, the gravity of pain and amounts of cruelty, they might have been suffering and undergone, which has pushed, them to attempt or commit suicide, after all putting an end to one’s own life is not an easy act. The survivors of the suicide attempt may survive from the attempt of the suicide but surviving with the fact that the offender is the same person who might live with her as the husband, and so called family members /relatives are also of no help since there is nothing like rape within the wedlock and wife is by default expected to be submissive and it’s her duty towards him, is the most difficult part it seems. Also, there is no surety that she will not be going through rape within the wedlock, if she chose to remarry. There is a complete departure of the free consent of the wife to have sex with her lawfully wedded partner  amounts to paralysis of the marriage.

Hence, non-recognition of rape within the bonds of marriage is the crime which is left un-attended by the law-makers and, continues to violate the basic fundamental right, of the women of our country. 

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