MARITAL
RAPE – SOCIAL ISSUE
News:
Supreme Court to hear
batch of petitions pertaining to criminalisation of marital rape
What's
in the news?
●
The Supreme Court agreed to hear a series
of petitions seeking to criminalise marital rape.
●
A three-judge
Bench led by Chief Justice of India D.Y. Chandrachud heard an oral
mentioning by senior advocate Indira Jaising for early listing of the case.
Key
takeaways:
●
The Delhi
High Court on May 11, 2022 had delivered a split verdict on the
criminalisation of marital rape.
●
The Karnataka
High Court had earlier held that a husband was liable to be charged for
rape under the Indian Penal Code (IPC) if he has forcible sex with his wife.
The Karnataka Government had supported the High Court judgment in an affidavit
in the apex court subsequently.
Marital
rape:
●
Marital rape can be defined as any
unwanted sexual intercourse or penetration obtained by force, threat of force,
or when the wife is unable to 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.
Deterrent 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 Bharatbhai 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 behavioral 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.