Marital Rape- ‘No Means No’ But Her Ring Denied Her Justice
Author : Khuloos Aziz Chawla
The truth of Indian Legal Society is that Rape is a criminal offence, but Marital Rape is perfectly Legal. Marriage is considered to be absolute consent for sexual activity to take place for life, but it isn’t the implied consent. When a woman is forced by an outsider other than her husband then it is considered rape. But if she if forced by her own spouse then it isn’t rape.
Patriarchal culture does not allow women to speak up against their marriage and they become the husband’s personal property who are expected to be always available for sex. An Indian woman is taught to keep her mouth sealed to protect her family’s image. But what about her dignity?
Unfortunately, woman when being sexually forced by unknown person is taken as a victim for rape. But when she is forced on, by her own husband then it isn’t to be treated as a legal offence. A rape is a rape no matter it is done by whom. If a woman who has been living with a spouse gets raped, then she lives with the rapists for the rest of her life. This is equally traumatic as any other rape. This must come under the clause of mental cruelty as it is the form of torture.
Central Argument in the Realm of Law:
India is one of 38 countries where marital rape is a perfectly legal practice to be followed. There are laws for the protection of women but indeed there are loopholes in them, which the society and men take advantage of. The Protection of Women from Domestic Violence Act, 2005 1 aims to protect women from the domestic violence. But it does not explicitly cover the aspect of Marital Rape. Moreover, the punishment prescribed under this act only recognizes when the victim has suffered the grave degree of abuse or cruelty. It stands vague for those who simply go through the aspect of denial when they aren’t sexually available. This law didn’t really work as a shield for women, the accused is only liable to maximum 3 years imprisonment.
The ambit of marital rape should come under Section 375 of Indian Penal Code (IPC) 2. This will make the offence of marital rape stronger. It’s very easy to get into a legal relation and then rape the woman for the rest of their life. Marital Rape stands as an exception to Section 375 IPC, which makes it easier for men to get married and escape the punishment. Denial of the availability of women shall be the same irrespective of her marital status. This will create the sense of fear amongst the rapist and more protection for women. The criminalization of the Marital Rape would amount to maintain the Dignity of women which they deserve.
Judicial Stand
A division bench of Delhi High Court dismissed the plea to declare Marital Rape as a ground of divorce. The request was to formulate the guidelines making it a criminal offense, with the appropriate punishment and to formulate the full procedure of filing First Information Report. It was not considered as the judges stated that law making is the legislature’s domain and not the judiciaries concern. This judgement came in 2019 when there was no prediction of any pandemic, so the life and pace of the rapes remain the same. But as soon as the lockdown was imposed in 2020, the cases of domestic violence on the whole rose. The reason behind the increase in this abhorrent crime was the frustration among men, which may be due to unemployment or any other.
Patriarchal Society’s Perspective
The Indian Society believes that men are more powerful than women. The cause may be since in most households’ men are the breadwinners and women are dependent on them.
According to National Family Health Survey (NFHS-4) 3, 9% women are daily beaten up specially for the refusal of sex. It is stated that men find it okay to release their frustration on their wives by either beating them up or raping them. They fail to understand here that women do not belong to them, or they aren’t the commodities. Woman, even after marriage, has equal rights to her body and soul. This is a crime, and it should be addressed.
The Victim’s Mindset
Whereas women do not even know about the existing laws or rights under which they can file the complaint. They don’t even try to know because they don’t want to speak up. The girls when they are born are taught how to adjust in their next homes. That is, their in-laws’ place and with their husbands. They are also taught how to keep themselves mum and not raise their voice. Sole reason behind women not speaking up and bearing this social evil is the family image, which is to be maintained by them.
If anyone raises their voice, they are seen as they didn’t compromise and said out what was to be kept hush hush. It is always seen better to adjust and compromise rather than speaking up for their rights and against the crimes that they bear. Even if they speak up for themselves, they are seen as the criminals themselves and even their maternal families are boycotted from their communities.
What Needs to be Done?
Marital Rape is a boiling frog syndrome that needs to be considered at the earliest by the law makers. There shall be laws pertaining to this crime to safeguard the women even after marriage. This will create the grounds of fear among men, and they will be bearing repercussions of this malpractice.
There are two aspects due to which there is no law with respect to Marital Rape, one of them is the lack of evidence and the other one is misuse if this becomes a punishable offence. Addressing to these two major concerns, the one with the lack of evidence is same as to the Rape we register under Section 375 of Indian Penal Code (IPC). There are such rape cases under IPC where there is a lack of evidence. And it is hard to conclude whether it was consensual or forceful; but still the victim is given chance to at least come and fight for herself. The aspect to note here is that she has the right to be heard and if proven right then her rapist shall be criminalized as per the law.
The other issue of misusing the offence of Marital Rape is feeble and fragile. Reason behind this is women are suffering and had they not been there. Then they wouldn’t have demanded this to be recognized. If this is made concrete, then there are certain parameters to examine whether this crime is genuine or not. There can be evidence and traces of forceful conduct, which will help to recognize if a female is victimizing herself or not. There shall be no law to make an innocent person suffer, be it men or women. Hence, this is the need of the hour where social reform is much needed to lower down the dead man’s gun. There shall be initiatives in the light of this darkness.
References
- https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf
- https://indiankanoon.org/doc/623254/
- https://dhsprogram.com/pubs/pdf/FR339/FR339.pdf
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