The 75th Independence day is almost here. India has come a long way in terms of development but marital rape is still not recognised as a crime in our country.
Recently in a landmark Judgment, Kerala High Court pronounced that Marital Rape is a valid reason for Divorce though it isn’t a punishable crime. The judgement quoted, “Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant a divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce”.
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While this judgement is a sign of relief, the question we have to ask is – Why does marital rape still escape our penal law? The majority of developed and developing countries have recognised marital rape as a crime saying it infringes the basic rights of the partner. But it is disheartening to note that only 36 countries are yet to criminalise it. India, despite being a democratic nation, is one among them.
It’s not just about democracy. India is also home to a countless number of sexual and domestic violence happening worldwide. The exemption? Marital Rape! IPC Section 375 says, “A man is said to commit rape if he has sexual intercourse with a woman against her will or consent”.
But under the same 375, there is an exception which states that if a husband has forceful sex with the wife, it will not amount to rape provided she is above 15 years of age. This depicts that our law is still stuck in the British Era where all these acts were codified. At that time, women, after their marriage, were not considered separate individuals. Hence, her consent was of no importance.
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Though years have passed since we gained freedom, the only amendment we’ve seen made to this law is that sex with a wife aged between 15-18 years amounts to rape even if there is consent. The judgement, however, was silent about women aged above 18 years and the significance of their will. This is nothing but a gross violation of fundamental rights.
In our constitution, Article 14 guarantees the Right To Equality to all. Here, there is an unequal approach between the unmarried woman and the married. The former, irrespective of age, can complain against rape; the latter cannot. Also, if the law gives the husband the right to take marriage as implicit consent, then it explicitly treats men and women unequally in the institution of marriage.
Article 21 of the Indian Constitution guarantees the Right to Life and Personal Liberty. It also provides for the Right to live with dignity and now, the Right to Privacy is also a fundamental right. Taking away the freedom of one’s own body, intruding on her private space and making a wife obliged to have sex with her husband is a direct blot on all these guaranteed rights.
When an incident of rape is considered in court, all these rights are looked into for granting punishment. The fact that this isn’t applicable for a married woman sounds unethical and inhumane. According to various studies, marital rape occurs more than other incidents of rape. But most of the time, it goes unreported as women have been conditioned to believe that it is the right of their husbands irrespective of consent. With the law too taking a lenient stand, such men use marriage as a defence mechanism.
One remedy available for married women is under the Protection of Women from Domestic Violence Act 2005 in which they can file a case against the husband. This might help in getting a divorce, providing a warning or lighter punishment. But the accused will not be treated as a rapist, hence, lowering the gravity of the decree.
Justice Verma Committee, which was appointed in the aftermath of the 2012 Gangrape case, had suggested putting marital rape under the ambit of criminal law as marriage is not a defence to rape. But the suggestion was ignored. Our former CJI Dipak Mishra once quoted “I do not think marital rape should be regarded as an offence in India, because it will create absolute anarchy in families”. Even the government, a few years ago, opinioned that criminalising marital rape will affect the marriage institution.
This points out how deep-rooted our conservative mindset is about marriage. India is yet to accept the fact that marriage is a union of individuals who have their own choices and freedom. To say that marital rape will destabilise marriage feels like a philosophy of ancient India. Even today, many men claim innocent in marital rape cases saying it is their right. Only when we criminalise this act, will we be able to mark a clear definition of how significant consent is within or outside marriage.
With judgements about marital rape doing the headlines, it is time India take this issue seriously and pave way for a new amendment criminalising marital rape and drawing defined boundaries on sexual offences without any loopholes. No matter what the gender or marital status is, “A No means a No”.