MARITAL RAPE – POLITY

News: Supreme Court to list marital rape petitions for hearing

 

What's in the news?

       The Supreme Court said it would list a batch of petitions before it that pertain to matters related to marital rape.

 

Marital Rape:

       ‘Marital rape’ refers to the act of forcible sexual intercourse by a man with his wife without her consent.

 

Marital rape in India:

       In India, the definition of rape under section 375 of Indian Penal Code does not include marital rape as a criminal offence.

       Marital Rape is only covered under the definition of domestic violence which is defined under the Protection of Women from Domestic Violence Act, 2005.

 

Prevalence of Marital rape in India:

       The recently released NFHS-5 report has found that 30% women between the ages 18 and 49 years have experienced physical violence since the age of 15 years, and 6% have experienced sexual violence in their lifetime.

       But even amongst 6% women who have admitted to sexual assault, over 80% women have said the perpetrator is their husband. So marital sexual violence is widely prevalent.

 

Criminalising Marital Rape:

1. Bodily Integrity is intrinsic to Article 21:

       A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution.

2. Affects Gender Parity:

       The marital rape is against basic rights Indian women, who deserved to be treated equally under Article 14.

3. Affects Gender Justice:

       The marital rape is a severe form of sexual violence that is punishable in many civilized society as a symbol of gender justice.

       A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.

4. Making Women as a Property of Man:

       Decriminalizing marital rape simply means concretizing the patriarchal mindset in the society, under which husbands believe that wife is their property and they can do anything with them.

       Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.

5. Ineffective Legislation:

       The civil remedies for marital rape include protection orders, judicial separation and monetary compensation. Thus, the 2005 Act only provides a recourse to the woman to remove themselves from the violent and dangerous situation and does not do anything to deter the violent behaviour of husbands.

6. Affects Women Freedom:

       Giving immunity to marital rape erodes women’s power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety.

7. Psychological Impact:

       It has a deep psychological impact on the victim women. According to one study, women victims of marital rape are twice as likely to experience depression.

8. Rate of prevalence:

       A study conducted by the Joint Women Programme; an NGO found that one out of seven married women had been raped by their husband at least once. They do not report these rapes because law does not support them.

9. Deterrant effect:

       It may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapists husbands.

 

Challenges in Criminalising Marital Rape:

1. Destabilize marriage as an institution:

       It will create anarchy in families and destabilize the institution of marriage.

       Still, most of our society believes that the institution of marriage is sacrosanct in society which needs to be upheld at all costs and all procreative sex within marriage is legitimate.

2. Misuse of law:

       It may become an easy tool for harassing the husbands by misusing the law similar to misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of IPC and the Protection of Women from Domestic Violence Act, 2005.

3. Diversity in Cultures of the states:

       Criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states.

 

Judgements and Committees:

1. Nimeshbhai Bharat bhai Desai vs State of Gujarat (2017) case:

       In this case, the Gujarat High Court elaborately dealt with the issue of marital rape. The Court stated that “making marital rape an offense will remove the destructive attitudes that promote the marital rape”.

       However, due to the non-recognition of marital rape as a crime, the Court held that the husband is liable only for outraging her modesty and unnatural sex.

2. Independent Thought v. Union of India (2017) case:

       In this case, the SC has criminalised sexual intercourse with a minor wife aged between 15 and 18 years.

       But the SC refused to delve into the question of marital rape of adult women while examining an exception to Section 375.

3. Justice Verma Committee report (2013):

       It had recommended removal of exception of marital rape.

       The report underscored the fact that marital rape immunity had been withdrawn in most foreign jurisdictions.

       According to the Report, the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity.

4. Law Commission Report:

       In the 42nd Report by the Law Commission, it was recommended that criminal liability should be attached to the intercourse of a man with his minor wife.

       However, the committee refused the recommendation stating that husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage.

 

WAY FORWARD:

       The legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC.

       The wife should have an option of decree of divorce if the charge of marital rape is proved against her husband.

       Corresponding charges in the matrimonial laws should be made.

       Bringing behavioural changes, awareness campaigns, sensitizing the public regarding the importance of consent, medical care and rehabilitation.

 

The principle of equality and non-discrimination is important, and it is enshrined in our Constitution. This should permeate through each law of the country including Section 375 of the Indian Penal Code. It is high time that India realizes that a marriage license cannot be a substitute for a woman’s consent.