MARITAL RAPE? EVERYTHING YOU NEED TO KNOW 2022

Table of Contents

INTRODUCTION

Marital rape and sexual violence, in general, may also affect how you view sex, love, and relationships.

People might think rape is something that happens only between strangers” but Nonconsensual sex in marriage occurs as well, and it’s not uncommon. people think as long as they are married, it is perfectly legal for a man to rape a woman in India.

Sexual violence has many faces. It’s hardly an isolated incident, and it may also come with other abusive behaviors. In marriage, forced sex is still sexual violence, and it’s never the victim’s fault

Section 375 of the Indian Penal Code, 1860

Which classifies rape as a crime, provides this exemption as a “sexual activity with a woman without her consent, against her will, by coercive power, misdirection, or deception, or at a period when she is intoxicated, or is of unsound mind, and in any case, if she is a minor that is below the age of 18.

Exception 2 of the section

“Sexual relations or sexual intercourse by a male partner with his wife could not be considered rape if his wife is not a minor i.e., under the age of eighteen,”

Simply, it means that if you’re a married man, and you force your wife to have sex with you without her consent, no matter what you do to make this happen, whether physical violence, slipping her a roofie, or threatening to murder her parents, she can’t go to the police and file a complaint for the offense of rape.

The rape laws in India have undergone several changes since pre-independence. But the exception to marital rape has always remained.

In 2017, the Supreme Court increased the original age of 15 except 18 and held that the section should read “the wife not being under 18 years of age”.in the case of Independent Thought v. Union of India (2017). But this judgment was limited to making sure that the IPC was in line with the age of consent, which is eighteen, and hence, was not able to address and recognize the bigger issue of the marital rape exception for adult partners.

The bench of justices Ajay Rastogi and BV Nagarathna found no urgency in hearing the appeals against the high court’s split verdict on marital rape with one HC judge terming the clause protecting husbands from prosecution for non-consensual sex with their wives as “morally repugnant”, while the other saying it did not violate any law and could continue to exist.

In 2016, the Women and Child Development minister Maneka Gandhi in her written reply said that the concept of marital rape cannot be applied in India, “due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament.”

Reasons for Marital Rape not being a crime in India:

Women’s voices are silenced in a patriarchal society based on marriage. Making marital rape a crime, according to former Chief Justice of India Dipak Mishra, would cause complete anarchy in families and that our country’s survival depends on the family platform, which upholds family values. Marital rape cannot be criminalized due to existing traditions and social values. According to the Indian government, those who try to prevent women from being raped by their husbands are following Western countries’ lead

Our culture is built on the idea that once a woman marries, she gives her husband perpetual sexual consent. By mutual consent and marriage contract, the wife has thus relinquished her rights to her husband, which she cannot revoke. Judge Matthew Hale of the United Kingdom ruled that a husband cannot be held liable for raping his legitimate wife. The union government claimed in an affidavit to the Delhi High Court that a law criminalizing marital rape could be used to harass husbands, absurdly arguing that if all sexual acts between a husband and his wife occur, then the wife will be the sole judge of whether it is marital rape or not

This argument that women will falsely accuse their husbands and that, even if they do, the judiciary will be there to assist them has been made numerous times. Marital rape is a heinous, oppressive, and violent crime, which is the only valid justification or argument. Although the Indian constitution guarantees equality, the marital rape law is unconstitutional because it discriminates against women raped by their husbands.

Many women could use the criminalization of marital rape as a pretext to file a false report against their husbands, according to men’s rights activists. Making marital rape illegal, they argue, would encourage the wife to harass her husband. The male victim will not be able to prove his innocence because the wife’s relationship with her husband is essentially sexual in nature and the wife’s denunciation will be the main witness of the crime

Judicial Interpretation

The Andhra Pradesh High Court held in Saretha v. T. Venkata Subbaih that the enforcement of the restitution of marital rights decree violates the inviolability of the person subject to the decree, as well as marital integrity and privacy, and that person’s home intimacy

According to the Supreme Court of Karnataka’s ruling against Krishnappa, sexual violence is an illegal invasion of a woman’s right to privacy and holiness, as well as a dehumanizing act. Non-consensual sexual intercourse is considered physical and sexual violence, according to the same decision

In the case, Suchita Srivastava v. Chandigarh Administration The Supreme Court equated the right to choose a sexual activity with constitutional rights to personal freedom, privacy, dignity, and physical integrity

The Supreme Court defined the right to privacy on one’s body in the case of the State of Maharashtra v. Madhukar Narayan Mardikar. The right of a prostitute to refuse sexual activity has been established. Stranger rape is illegal, and all women, except wives, have the right to privacy over their bodies, which includes the ability to refuse sexual intercourse and refuse consent. The issue is that marriage is highly regarded. Rather than forcing the wife to meet her husband’s every need, especially sexually, mutual respect and trust should flourish. Being raped by a friend is far more traumatic, and living with them makes it even worse.

In each of these cases, the Supreme Court recognized the right to refrain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution to all women, regardless of marital status. As a result, forced sexual coexistence is a violation of the Constitution’s Article 21.

Conclusion

In India, marital rape is not entirely prohibited. Women who have been raped by their husbands or wives are more vulnerable to a variety of attacks and frequently suffer from long-term physical and emotional issues. Marital rape is much scarier for a woman in this situation because she has to live with her teaser on a regular basis. Due to the seriousness of the consequences of marital rape, it is clear that the crime must be criminalized. Positive legal changes for women are occurring in India, but more work is required to achieve both legal and social changes, such as criminalizing marital rape and changing attitudes toward women in marriage.