The article ‘Marriage or License to Rape: Why Marital Rape Still Prevail India‘ penned by Shubhangi Singh discusses the menace of Marital Rape in detail. Introduction  It is a sad reality that Indian Married Women are not given protection by the government from the sexual violence at the hands of their husbands. So basically, in India, marriage gives… Read More »

The article ‘Marriage or License to Rape: Why Marital Rape Still Prevail India‘ penned by Shubhangi Singh discusses the menace of Marital Rape in detail.

Introduction

It is a sad reality that Indian Married Women are not given protection by the government from the sexual violence at the hands of their husbands. So basically, in India, marriage gives husbands a license to sexually force themselves on their wives. Unfortunately, the Indian government has chosen to be a mute spectator of the pity of millions of married women, for a long span of time.

The government has maintained a position that criminalizing Marital Rape would destroy the sanctity of Marriage. According to me, the sanctity of marriage gets destroyed that day itself, when a husband chose to ignore the consent of his wife and when he forced himself on his wife. This shows that Indian women do not have equal positions in their marriages and patriarchy still has strongholds in Indian Society.

It is quite difficult for us to accept that the sixth-largest economy of the world and largest democracy of the world and a country that has always upheld the liberties of citizens legalize “Marital Rape” in India. It is embarrassing to know that India is one of the 36 countries that have given the male section of the society to rape their wives. So basically, the Indian Government has failed to uphold the right to dignity of women in the name of Marriage and Society.

Unfortunately, society and law give men a stronger control, authority, and power over women’s bodies than the women have themselves. And the worst part comes when some women justify Marital Rape through the sanctity of Marriage. Some women do not even try to understand the plight and pain of the women who have faced atrocities in the form of Marital Rape.

Development So Far

In 2015, RIT Foundation (NGO) presented the first petition on this contentious issue at Delhi HC. In 2017, Apex Court ruled that the exception of Section 375 of IPC doe not apply if the wife is minor. In 2016, the Central Government in its affidavit stated that removing the exception clause from IPC would tremble the family system and sanctity of marriage.

Recently, RIT Foundation and All India Democratic Women’s Association, through Lawyer Karuna Nundy, have filed a petition in Delhi HC for criminalizing Marital Rape in India. Petitioners challenged the constitutionality of the exemption clause. Delhi HC has therefore asked the Central Government to respond on this contentious issue.

The central government is currently trying to form its opinion by seeking experts advice. Justices Rajiv Shakdher and C Harishankar of Delhi HC are currently adjudicating on the matter and they will soon hear from petitioners NGOs and from the welfare trust of men.

Opinion Of Amicus Curaie

Amicus curiae Rebecca John concluded that forced ‘intercourse by a husband violates the wife’s right to bodily integrity and independence to make decisions related to intercourse’. She was also of the opinion that the exception clause neither reflects Indian men or women nor Indian Marriages. She also presented some new reports in which the wives were gang-raped and husbands were among the culprits. In such cases, culprits other than husbands were punished, but husbands were held not guilty, all thanks to the exception clause.

Amicus Curiae Rajshekhar Rao requested the court to decide the matter in the light of Articles 14 and 21 of the Indian Constitution as the exception clause violates crucial fundamental rights of Indian daughters.

According to him “The act recognizes only the consent of the woman. The statute is women-centric, it looks at what the women don’t want. From the wife’s Pav, it recognizes that the women don’t want, but does not give her the provisions. If you put yourself in a woman’s shoes, what she has undergone is rape.”

Why Government Does Not Wish to Criminalize “Marital Rape”?

In 2016, Central Government was of the view that criminalizing “marital Rape” would destroy the sanctity of the Marriage and Family System. What the Government did not realize was, that the bond between the partners is already broken if the husband disrespects the consent of his wife and forces himself on her.

It is because of the financial and social helplessness of the wives, that they have to maintain their marriage, even after facing such kind of dishonor, that too at the hands of their husbands, who promised to protect her dignity and honour at any cost. Indian values do not support atrocities in the name of social respect and marriage and it is evident from the phrase “Wrong tolerator is equalled to Wrong Doer”.

There is a fear of the probable misuse of “marital rape” is criminalized, in the hearts of the government, judiciary and public. But we have laws in place to punish those who file frivolous complaints. The punishment and the penalty for such culprits should be raised. It should prevent deterrence in minds of such females who misuse those laws which are meant for their protection. Misuse of the law for harassing husbands and in-laws is highly condemnable. Such women are doing great injustice with other women, who genuinely need legal recourse to protect their dignity and rights.

But in my opinion, the fear of probable misuse of laws, should not stop the government from bringing new laws that help Indian daughters to remove their plight. Patriarchy still has a strong grip over society and even women suppress other women. Indian daughters have a hope that the government would provide her justice and support, even if her family does not. Secondly, according to me, it is the responsibility of the government to come up with a way that prevents misuse of such laws and provide strict punishments and penalties, so that it would create deterrence in the minds of women.

It was quite disheartening for me to know that in its 172nd report, Law Commission chose to ignore the voices of women to criminalize Marital Rape. In that report Law Commission said that deleting the exception clause would cause “excessive interference with the marital relationship”. But, my question is why forced intercourse by a husband on his wife can’t be equated with other forms of cruelty? Forced intercourse is a form in which husbands tend to suppress their wives. This clause violates various other rights of women like the right to bodily integrity, reproductive rights, and the right to say “No”.

Proving Marital Rape can obviously be a complicated problem and that is the issue that the Indian Judicial System along with the Government is facing. But the Government and the Judiciary would have to look at the Marital Rape laws in that country which already has criminalized it. The laws of the United Kingdom, the United States of America and Australia, and of other nations can really help the parliament to make laws for it. These laws will definitely help the judiciary to come up with the tests and principles that will be required to prove sexual assault.

Marital Rape As Ground For Divorce

In India, Marital Rape is per se not a ground for divorce, but a wife can claim divorce from her husband by including it in “Cruelty” which is a ground for divorce in all the Personal Laws and Secular Law. Physical, Mental, and Emotional Trauma are counted as Cruelty. Even recently, Kerala High Court empowered women of the State to claim divorce on the grounds of Marital Rape.

The Court was also of the opinion that when a man treats the body of her wife as his property to commit sexual acts is nothing but “Marital Rape”. The Court also held that “Right to respect for his or her physical and mental integrity encompasses bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy,”.


Sources

  1. The Hindu
  2. Times of India
  3. Law Commission of India
  4. Rebecca John, Marital Rape, Available here
  5. Shaju Philip, Marital rape a good ground to claim divorce, says Kerala HC, Available here
  6. Quint, Available here
  7. 172 report of Law Commission of India – read point 8 under 172 report of Law Commission of India to read LCoI opinion on Marital Rape, Available here

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Updated On 2022-02-21T07:43:53+05:30
Shubhangi Singh

Shubhangi Singh

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