MARITAL RAPE

AUTHOR: BHOOMI MAHAJAN, MEWAR LAW INSTITUTE

ABSTRACT

The Indian law making body plays a crucial role in enacting several legal provisions to safeguard women. However, there is no law enacted to safeguard women from marital rape. What's the use of various laws for the safety and protection of women if they are not safe by her husband who without her consent makes a sexual relations with her? The Indian Penal Code which set forth the offenses and mandates the punishments does not have a topic of marital rape in it. According to Supreme Court of India sexual relations between a husband and a wife is not considered as rape unless the wife is below 18 years of age.

KEYWORDS:

Marital rape, force, marriage, sexual intercourse, women.

INTRODUCTION

Marriage is a lifetime partnership between two individuals that has a legal, emotional and social significance. Sexual relations are often considered as a good source to build a emotional bond between partners in a relationship. However, sometimes these sexual acts have the consent of one partner and not the other partner. Marriage helps in building a family chart but still marital rape is not criminalized in India. However, initiatives were taken to penalize it but no progress has been made out through these attempts. Despite the presence of constitutional provisions like Article 14 which is equality before law, Article 15 which prohibits discrimination, the marital rape is neither criminalized in Indian Penal Code nor Bhartiya Nyay Sanhita.

In Hindu marriages, the sacred ceremony takes place in front of a holy fire, where the husband vows to protect, respect her wife. However, this problem shaken when the same husband engaged in sexual acts with his wife without her consent. These acts also affect the dignity of women. Over the past years many petitions were filed by women, NGOs demanding for the criminalization of marital rape but no such legal reforms are made out from it.

Section 375 of Indian Penal Code defines the offense of Rape but excludes Marital Rape from its definition. According to Section 375 exception 2 it is not a marital rape if a husband performs sexual acts with his wife and the wife is above 15 years.

Recently, IPC got replaced by Bhartiya Nyay Sanhita where Section 63 deals with Rape. However, no such changes were made in BNS regarding marital rape.

METHODOLOGY

This article is based on a qualitative method, relying primarily upon secondary sources to address the issue of marital rape in India. The data has been collected from various sources such as legal journals, research papers, articles and other official sources.

Instead of using primary data collection procedure like surveys or interview, the study laid focus on existing content to understand the structure of marital rape in India.

NEED TO CRIMINALIZE MARITAL RAPE

In ancient times, marriage was seen as a relationship in which the wife was expected to fully submit her to her husband and refuse to his demands even if its sexual ones are considered a crime or an offense. However, in the 21st century being married does not give the right to control or dominate another person's body. Consent still matters even if it's in marriage.

There is no major law made in India to criminalize marital rape. However, many countries in the world already criminalize it but the absence of such laws in India makes the women feel unprotected. Therefore, there is a need to criminalize marital rape to provide protection and ensures equality, justice to women in India.

THE GROUNDS FOR THE ABOLITION

Different jurist and commentors have different legal grounds for the abolition of marital rape exception. In the KHUSBOO SAIFI CASE, Justice Shankar held that Article 14 and 15 of the Indian Constitution allows discrimination only on reasonable differences. According to him, marriage does not compile a man to engage in a sexual relationship with his wife without her consent. If the law provide protection to unmarried women against rape, there should also be a law that provide protection against marital rape too.

However, law commission rejected the proposal to criminalize marital rape by saying that it will threaten the institution of marriage. It also led to country wide criticism.

RAPE VS MARITAL RAPE

RAPE:

Rape can be defined as a term which includes forcing someone to do sexual things without their consent. Sometimes the person is not even in a state to say yes or no. It means that the person is unconscious, drunk or too young.

According to Section 375 of IPC and Section 63 of BNS, rape is defined as an act committed by man when he,

1. Puts his penis inside the women's body

2. Puts any objects inside the female body

3. Manipulate any part

4. Uses his mouth on her private parts

And if a person commits a rape it should fall under the following seven situations:

1. Against her will

2. Against her consent

3. She consented but only because of fear

4. She consented because she was drunk, drugged

5. She is under 18 years of age

6. She could not say yes or no

7. She thought he was her husband.

MARITAL RAPE:

Marital rape is a term which can be defined as an activity where a husband forces his wife to engage into a sexual relationship without her consent on it. The lack of consent is an important factor to constitute marital rape and it should not include any physical violence. If the law provide protection to unmarried women against rape, there should also be a law that provide protection against marital rape too.

According to Section 375 exception 2 it is not a marital rape if a husband performs sexual acts with his wife and the wife is above 15 years. After the Nirbhaya case Justice Verma Committee suggested to criminalize marital rape but government does not like the suggestion.

CASE LAWS RELATED TO MARITAL RAPE

INDEPENDENT THOUGHT VS UNION OF INDIA

Previously, it was held that it is not a marital rape if the wife is above 15 years of age. But through this case the age extended to 18 years.

NIMESHBHAI BHARATBHAI DESAI VS STATE OF GUJARAT

The Gujarat High Court acknowledged non consent sex as a form of cruelty and charged it under Section 498A as India doesn't have any law related to marital rape