Marital Rape: legal lacunae and need for Reform
Abstract
Among a variety of domestic violence against women one is marital rape, which is not recognized as offence.The main problem is to criminalize marital rape as well as the objective of this paper is to point out key problem in the legal provision of marital rape.This Article discusses the various cases in which criminalization and decriminalization of marital rape had been discussed.The paper also provides the knowledge of impact on victims of marital rape.The Article also analysed the argument due to which still marital rape is decriminalized and provides the argument in favour of criminalization of marital.This Article discusses why we need reform in the provision.
Introduction
The bifurcation of castes introduced Hindus and Muslims as the main caste all over the world.These two castes including another like Sikhs, Jains ,etc recognise marriage as a religious duty.According to Hindu Marriage, Marriage is the dharma which purifies men. According to some philosophers, Marriages in Islam are also considered sacred.According to social perspective, marriage is the epitome of love, respect as well as permanent.
But, Considering marriage as religious and exploiting women is just contradictory to each other. Our society is so orthodox that according to them everything is right in marriage even if the woman is exploited by her husband.Generally people think there is nothing wrong in it just because he is her husband.He has the right to do so.Not only Society but our legal provisions also validate this. It validates marital rape.
Definition of Marital Rape
At present,In India Marital Rape is not recognized as crime. However, Section 375 of the Indian Penal Code recognize rape as crime against women and its exception 2 states that sexual intercourse by husband with his own wife who is not below 15 year is not recognized as rape.
The amendments in Criminal Acts do not alter this provision as well as not recognized the marital Rape . Section 63 of the Bharatiya Nyay Sanhita ,2023 is the same as Section 375 of the Indian Penal Code . The only change in exception 2 is the enhancement in the age of the wife which is increased from 15 years to 18 years. It means that from now onwards i.e, 2023 , the enforcement year of New Criminal Acts, sexual intercourse between husband and wife is not recognized as rape if the women is not less than 18 years.
In general terms, the misdemeanor against women after marriage by her own husband will not be considered as rape as given in legal provisions. It will be considered as an offence if the age of women is less than 18 years.
Brief History of Marital Rape
From the very beginning,our society is patriarchal in nature. Plato in his book “REPUBLIC” said that women are the property of the community. On a similar basis, in ancient times women were recognised as property of the husband and That's why the crime against women was not considered as against the victim but against her husband or father. It was then believed that husband could not rape.
According to Sir Mathew Hale , marital rape was not an offence was justified as marriage between them was by their mutual consent in which women gave herself in this kind which she cannot retract from her husband.
The one of the most prominent case that attract the attention as well as raise the issue of marital rape in front of court was the case of Phulmoni Dasi. She was a 10 years old bride ,died due to trauma and excessive bleeding from private parts after sexual intercourse with her husband of age 30 years. Husband was punished because of causing grievous hurt not of rape as women was in legal age. After this,the legal age increases from 10 years to 12 years. But , it does not solve the issue.
Deducing from the history the basis for marital rape being decriminalized is on the two ground:-
Consent in Perpetuity, which means that married women give her permanent consent which she cannot retract.
Expectations of Sex , women are obliged to fulfill the sexual desire in marriage .Also, the Hindu Marriage recognise Rati or Kama as important in marriage and also in muslim marriage, the fulfillment of sexual desire is an objective.
But ,this major issue cannot be justified by the above ground.
Status of Marital Rape in india
There are several countries who criminalize the marital rape like Indonesia.
The status of marital rape remains unchanged in Bhartiya Nyaya Sanhita.This unrecognised crime is in tremendous amount , grabing the concern and attention of government. According to the National Family Health Survey, almost 83% of women blamed their husband for sexual violence. 4% of women are forced to sexual intercourse , 2.1% are forced to perform sexual acts and 3% of the women are threatened when they disagreed.This is the major issue and addressed to honourable judges many times.
Landmark judgements
There are many cases which favour the decriminalising of marital rape.
Harvinder kaur vs Harmandar Singh,AIR 1984 DEL 66
The Delhi High Court stated that marriage is an institution which we cannot destroy by intervening in personal matters. It stated that the right to privacy of any woman should not be violated ; this was also held by the supreme court in the hearing of the State of Maharashtra & Anr. vs Madhukar Narayan Mardikar.
After the most horrible rape case ; Nirbhaya Rape Case,2012 the justice verma committee suggested the criminalizing of marital rape as marriage does not imply irrevocable consent.But, the government neglected this.
The landmark case of marital rape is Independent Thought vs Union of India,AIR 2017 SC 4904;through which this NGO filed a writ petition under Article 32 of constitution in Supreme court to check the constitutionality of this provision.The issue was :
Discrimination of women between 15 to 18 years.
Violation of The Prevention of Child Marriage Act
Violation of POCSO Act
The judgement of this case is reaffirmed in Bhartiya Nyaya Sanhita, where only the number of age increases from 15 to 18 years.But, the amendment does not mention sexual intercourse without the consent of the wife who is above 18 years.
The amendment in criminal law is the latest .It should mention these facts but due to the absence of it ; has attracted criticism.
Hrishikesh Sahoo vs State Of Karnataka,2022
In this case women filed case against her husband for criminal intimidation in sexual intercourse and killing of child ; the court includes the charge of rape.
Argument from the court was that how can our criminal code violates the supreme law of land.We are considering rape only if she is unmarried or married but below the age of 18 years and without her consent.It discriminates women of above 18 years. In this case, the husband filed a petition under exception 2 which is still unheard of.
Why should it be Criminalized?
The debate and discussion of criminalization is ongoing.Many favours it ; many against it .
1.Breach of Article 14 of our constitution: It provides equality before law to everyone; however this provision is against those women who are raped by her husband. It violates equality.
2.Breach of Article 15 : This article states that there should be no discrimination on the basis of religion,caste,sex.Exception 2 of BNS prima facie discriminates against women of above 18 years.
3.Breach of Article 21: Supreme Court interprets it in a broader range. It also includes dignity,privacy,health,safe environment.It also incorporates excuses from undesired sexual intercourse.
Breach of Article 21 is also justified because sometimes due to unwilling sexual intercourse; the health of women deteriorates.
4.Domestic Violence Act,2005 : This Act came into force in 2006 which was for the protection of women against domestic violence.While the provision of exception 2 actually violates the objective of this article.
5.Violation of Article 26 of International Covenant on Civil and Political Rights : This states that domestic law of any state should provide equal protection and dignity to all citizens. Marital rape is discriminatory to married and unmarried women.
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