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Marital rape: A crime legitimized

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According to the laws governing marriage under Hindus, it is defined as a union between a man and a woman in which they are bound by social and legal obligations towards one another. Marriage is a sacred institution according to the Hindu Marriage Act of 1955 while it is deemed a contract according to the Muslim Shariat Law.

According to the Indian Penal Code (IPC), rape is defined as sexual intercourse by a man with a woman which is performed without her consent (which includes consent taken through force, coercion, misrepresentation or fraud) and against her will. Section 375 of the IPC provides the definition of rape and the legal framework for punishing the culprits. The two exceptions provided in the section were:

Exception 1- A medical procedure or intervention shall not constitute rape.
Exception 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape

While the first exception is coherent in nature, the second downright legalizes marital rape and reckons it as mere ‘sexual intercourse or sexual acts.’ The issue of marital rape is a sensitive one and the Indian Government has been and continues to be criticized for its decriminalization. As of May 2023, Marital rape is criminalized in roughly 130 countries around the world. The second exception to section 375 dates back to the commencement of IPC during British colonial rule.

It is established on the 1857 draft of Lord Macaulay where marital rape was decriminalized without any constraint based on the age of the woman. This provision was based on the idea that the conjugal rights of a man are superior and thus should be protected. The doctrine of Hale given by the chief justice of Britain in 1736 stated that a man cannot be held guilty for rape because “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband.”

In the doctrine of coverture, it is pronounced that a woman loses her identity after marriage. While the United Nations has pushed countries to criminalize marital rape voicing that “the home is one of the most dangerous places for women,” many countries like Ghana, Indonesia, Singapore, Nigeria, etcetera, haven’t recognized it as a crime.

Why is it that the ‘sacred institution of marriage’ is held highly at the expense of the rights of a woman? In a country where Goddesses are worshipped and women are considered equivalent to them, the same consecrated women are debarred of their basic rights and freedoms. The hypocritical customs and outdated rituals have failed to venerate the will of the women.

In 2017, the Supreme Court of India heard a public interest litigation (PIL) appealing to criminalize marital rape. Still, the court refused to issue a judgement on the matter stating that it was a policy matter and therefore, should be addressed to the legislature. While there have been some judgements on marital rape in India, there is no clear legal admission of it as a criminal offence.

In the United States, “the nineteenth-century woman’s rights movement fought against a husband’s right to control marital intercourse in a campaign that was remarkably developed, prolific, and insistent, given nineteenth-century taboos against the public mention of sex or sexuality.”[17] Suffragists including Elizabeth Cady Stanton and Lucy Stone “singled out a woman’s right to control marital intercourse as the core component of equality.”

What is the mental condition of a woman who has to bear sexual violence from her perpetrator and continue to be of household service to him? She has no choice of her own, even if she divorces him on the grounds of domestic violence, the law cannot punish him on her behalf. The major psychological effects of marital rape on a woman may cause her to experience depression, anxiety and Post-traumatic Stress Disorder (PTSD) while other symptoms include headaches, insomnia, panic attacks, digestive issues, hypervigilance, intrusive thoughts and rumination.

“Rape is about dominance and power over someone,” Charna Cassell, a sex and trauma therapist in California, says. “While seemingly sexual in nature, it’s not about sex, even inside a relationship or a marriage. Rather, it’s about a partner believing they have the right to sex.”

The Constitution of India under Part 2, i.e., the Fundamental rights such as the right to life and personal liberty, the right to equality before the law, and the right to dignity, are meant to protect individuals from any form of violence or discrimination, including sexual violence within marriage.

“In Sree Kumar vs. Pearly Karun, the Kerala High Court watched that the offence under Section 376A, IPC won’t be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. In this situation, the spouse was subjected to sex without her will by her husband when she went to live respectively with her husband for 2 days as a result of a settlement of separation procedures which was going ahead between the two parties. Subsequently, the spouse was held not liable for raping his wife however he had done as such.”

My question is when will this attitude of treating women as inferior to men change and evolve? For how long can we uphold the principles of patriarchy and continue to suppress a woman mentally, physically and sexually? Marriage does not provide the man with a license to rape his wife and certainly does not establish him as the oppressor and the woman as a submissive, weak and docile creature. It’s high time that the laws must be amended to work for equality, to work for justice and to give women the right they deserve. It is necessary that marital rape should be criminalized so as to protect people from sexual violence and coercion.

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