“RAPE BEHIND CLOSED DOORS AND MASK OF MARRIAGE:REALITY OF MARITAL RAPE”
Christ (Deemed to be University)
Marital rape has been broadly bantered in India. India dissimilar to other created countries still can’t seem to condemn marital rape. Activists and Indian media support the supposition that India’s male centric culture makes it important and basic that marital rape ought to be condemned. Then again, an increasingly customary view remains that marital rape can’t be condemned as a result of the hallowed idea of marriage in Hinduism and how condemning marital rape would destabilise the organisation of marriage.
The said section defines rape and also provides for circumstances and exceptions to the commission of the said offence. Exception 2 under Section 375 of the Indian Penal Code, 1860 provides that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”henceforth legalising Marital Rape. The status of the same has changed a little by judicial interference which shall be discussed in the later part of the paper.
Exception 2 under Section 375 of the Indian Penal Code, 1860 has its origin back in the Common Law. India being a British Colony for more than 200 plus years followed the same and still continues to do so. This exception can be traced back to Sir Mathew Hale who served as the Chief Justice in England during late 1600. His statements in the treatise Historia Placitorum Coronae or The History of the Peas of the Crown formed the origin of the exception of marital rape from the definition of rape in various common law countries. He wrote that, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
The causes behind a wrongdoing of this sort can also be followed back to the social position given to women in Indian culture. Generally, Indian woman have been viewed as claimed by their fathers and later their spouses. Thus, rape can, to a limited degree, be compared to a wrongdoing against property. This is the reason in the old occasions the punishment against rape additionally included paying compensation to the injured individual’s dad or spouse. Since the spouse is viewed as asset of the husband and a man can’t carry out a wrongdoing against his own property, the topic of marital rape doesn’t emerge by any stretch of the imagination. Henceforth, the way that guys need to build up ownership over a woman after marriage makes a wedded woman progressively vulnerable to being abused by her significant other.
In recent outburst of Radical Feminism, numerous activists and people around the country have started demanding scrapping of the said exception to reduce the number of crimes against woman. The outburst has led to judicial interference, legislative measures in the said area which shall be discussed in the course of the paper.
STATUS IN INDIA WITH REFERENCE TO JUDICIAL DECISIONS
Exception 2 to the Section 375 of the Indian Penal Code, 1860 exempts a rape by a man on her wife in Indian context as discussed earlier. However with growing Judicial Activism, various Judicial decisions have been made in this regard which are discussed in this section of the paper.
This case brought about an amendement in Exception 2 of Section 375 of the Indian Penal Code, 1860 which now reads that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” The Supreme Court amended the age from 15 years to 18 years. The court also laid stress on Right to live with dignity of a girl child by emphasising on Article 21 of the Indian Constitution
However, unwanted sexual advances made by the husband on his wife who is above 18 years of age continues to be an exception to rape under Section 375 of the Indian Penal Code, 1860.
The Justice Verma Committee was formed after the Horrific gang rape case of Nirbhaya in Delhi in December 2012. The committee was also made various suggestions with regards to Marital Rape. Accepting the view laid down by the NGO ‘Sakshi’ in the case of Sakshi v. Union of India, The Justice Verma Commission Reportlaid down that the following recommendations:
In conclusion the commission was of the view that a marital relationship should not presume consent or take away the sexual autonomy of a wife. However, the above recommendations were not accepted by the Government as the government was of the view that if these recommendations would be accepted it would destabilise
marriages which are considered to be a sacred institution in India.
United Stated of America
The turning point was seen in the case of People v. Libertawherein it was held by the Supreme Court that there is no basis of differentiation between marital rape and non marital rape, henceforth criminalising Marital Rape in the United States of America.
However, by the year 1993, all the 50 states in the United States of America had processed laws against marital rape. In some states however, there still exists an exception of “Statutory Rape.”
Statutory Rape occurs when an adult has sex with a minor—someone younger than 18. People younger than 18 are legally incapable of giving consent to having sex. The penalty of marital rape in USA is similar to committing rape out of marriage and henceforth dealt equally. It involves imprisonment without parole but surprisingly, many states also have a different section that deals with marital rape and rape in general and the punishment depends on the circumstances and the situations.
In 1976, for the first time in the English-speaking world, rape in marriage became a criminal of- fence. Changes were made to the Criminal Law Consolidation Act 1935 of South Australia that made rape within marriage an offence and extended the definition of rape to include penetration of the anus of a man or woman without his or her consent. Current law includes penetration of other parts of the body and covers oral and anal rape. Although, in recent times, the law in relation to rape has changed, many myths and misconceptions are still widely held.
Marital rape doesn’t simply genuinely influence the women yet additionally subjects her to push, stun, injury and sorrow which can’t be depicted in insignificant words. All the violations against women will in general advance a male commanded society which is because of the man centric culture that we have been living in. Henceforth, because of the commonness of such a general public men get an unjustified edge over the women because of which violations like marital rape are wide spread however unreported.
Marriage does not merely survive on sexual relationships and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart form judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.
In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalisation has to fast alter the letter of law.