MARITAL RAPE-:AN OFFENCE YET TO CRIMINALIZE

     


Introduction

Rape is rape either by a strange person or by a lawful husband of a woman. Unfortunately ‘Marital Rape’, has not been even considered as a crime in India. Thereby, a paramount question comes into existence that- “Why is ‘No’ not a ‘No’ when one is married”, does the husband gets right to become the owner of her body. As per the statistics released in 2017 on ‘International Day for Elimination of Violence against Women’ by United States office report, shockingly eighty-seven thousand female homicide cases were reported world-wide. This means 58% of the homicidal cases were committed by victim’s intimate partner. To simplify it further, every hour near about 6 females are being killed by the person they know. Unfortunately, it’s still not qualified as a crime.  However, this fact cannot be concealed that, ‘marital rape’ has been one of the darkest face of domestic violence.

Encountering challenges to mould patriarchal stigma

Marital Rape is one of the abuse of the wife usually an individual do not think about the rape after the marriage therefore a woman found it difficult to believe that there will a rape happening with him in her day to day life. The customs and the traditions in the society make the women believe that she has no right to disagree from her husband and impliedly having a right to go any extent. It make the woman a property to a husband and the marriage a contract to make his wife a slave and to do anything with her and no consent is required or she has no right to give consent on any matter this lead to abuse the women either sexually or physically. This infringes the liberty and equality of a woman in the society.

In the context of India, the sexual abuse of a married woman is common and regnant form of masochism is going on. Generally the definition of marital rape is the forceful intercourse of a husband against the will or against the consent of his wife by the physical force, mental force or by threatening the wife. As marriage is considered as a sacrosanct relation in Indian society but unfortunately it sometimes leads to forceful sex relation for some reasons or for the lust of the husband.

Irrespective of age, class, race or ethnicity marital rape happens to take place in all type of matrimonial relationships. To define it, an undesirable intercourse by a husband to his wife by use of coercion, threat or sexual assault when found not consenting to it, amounts to marital rape.

Undesirable intercourse may escort to all types of penetration (anal, oral or vaginal) which amounting to marital rape is basically of four parts as

·         Force only rape: Here, only such amount of force is inflicted so that situation comes under control.

·         Battering rape: Consisting of both physical and sexual violence mostly ended by rape.

·         Compulsive rape: Combination of torture and obstinate sexual acts resulting to gross violence.

·         Sadistic rape - similar to that of Compulsive rape where the woman is tortured and forced into performance of sexual act.

Alternative Redressal available for Marital Rape in India

It’s unambiguous that there has been explicitly no law criminalizing marital rape, nevertheless some alternative redressal can be observed under our Indian statutes. I understand that ‘Rape in any form is rape’, nomenclature may be different, and one may call it as date rape or alien rape, or marital rape. The disheartening part is that, still marital rape does not qualify as a crime. The irony is that in India it is only a civil offense under the Protection of Women from Domestic Violence Act, 2005. On a comparative analysis it was found that, in other developed states of the world, this concept has been clearly recognised having a punitive measure. However, on an optimistic note our country has been really working on it understanding the gravity of the situation. In

There has been a traditional stigma that after getting married a woman loses her right to say no when asked for sex by her partner. This gives a room for the husband to take the liberty to undertake her possession and an implied consent to of approval. It becomes irrespective of the fact that, on account of such behaviour a woman’s human right has been grossly violated.

Justice J.S. Verma committee[5], A recommendation was given for having some alteration in the traditional law recounting to women, by increasing the ambit and covering marital rape within the framework. Unfortunately, it was not implemented.

After the Nirbhaya case[6], finally there have been some landmark changes in the Criminal Law Amendment Act, 2013. ‘Consent’ in the definition of rape was reframed giving a logical interpretation to section 375 of IPC as “unequivocal voluntary agreement” reflecting a woman’s compliance either through “words, gestures or any form of verbal or non-verbal communications” to undertake any sexual act. Above all, this definition makes the fact unambiguous that women’s stillness or want of ‘no’ cannot be interpreted as a “yes”. The harsh reality is that in all such cases woman has to pay at the end of the day.

However, if the question arises on the consequences for filing false charges, then the answer goes in this way- the lack of conviction does not mean it was a false allegation. Secondly the idea of medical corroboration being taken away by the 2013 amendment is absolutely false. Right from the time of Justice Krishna Iyyer’s Judgment it has been clearly mentioned - ‘if the court finds the woman’s testimony reliable, it does not need medical corroboration’. The absence of injuries is not a ground to take away the ability to prove rape. So, the 2013 amendment crystallizes the jurisprudence that was developing over 30 years.

Suggestions and Concluding Remark

The Indian statute must criminalize the non-consensual sexual act between the married couple i.e. (Marital Rape). As it’s no more a private affair happening in one of the bedrooms, rather it a suffering by major chunk of suppressed women acting as sex slave for life traditionally. Though various laws fall collaterally, however it does not justify the domain of the Marital Rape under broad heading of Domestic Violence or under 498 A of IPC.  So, if a woman has been raped, why should she complain of a lesser offense to get justice (i.e Domestic Violence)? There has to be a separate law governing ‘Marital Rape’ under the IPC, 1860. We are not saying that the law needs to enter your bedroom with a CCTV camera, rather we stress on the fact that anything that happens in the bedroom must be a consensual act having an active participation. Therefore, the inherent/basic human right has to come above the idea of understanding of the family.

There could be false complaints for anything. We do not stop having laws as a result. If the possibility of the false complaints was the ground to deny a person his human right, I fear what would happen to each and every offense under the IPC. Therefore, we should rather enforce that our evidence laws should weed out those false cases. And the argument is simple - “one should have the basic right to dignity to say ‘No’to a asexual act, irrespective of who the man is”. 



[1] 

[2] (1996) 1 SCC 490

[3] Tandan,N. & Oberoi, N.,Marital Rape-A Question of Redefinition , Lawyers Collective, p.24,(March 2000)

[4] Hale History of Pleas of the Crown ,p.629 (1778)

[6] Mukesh V. State for NCT of Delhi & Ors [(2017) 6 SCC 1]


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