Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offense and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor. However, according to exception 2 to Section 375 “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Thus, Indian men could rape their wives if they are older than 15.
In a landmark judgement in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18. The legal age of consent for women in India is 18. The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against wife by husband or a husband’s relatives.
Rape per se is an offence against woman, violating her dignity and self-respect and when it occurs within the four-walls of a matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification. Rape within marriage is a concept that agonizes the wife to the very core. The dread of having to face it and still have to silently suffer through it is an unbearable thought that affects the psyche of the women. This self-enforced silence has a very detrimental effect on the emotional, psychological and mental stability of women. However, this silence is not exactly self-enforced. The lack of laws and abundant social stigmas against the act of marital rape is one of the primary reasons that the evil of marital rape is still hidden behind the sacrosanct of marriage.
Marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear or fraud. It involves coercive, non-consensual sexual intercourse with a woman. It can be viewed as an act of violence of the private person of a woman, an outrage by all means. .
It is a serious problem that millions of women worldwide have to suffer and face such abuse on a day-to-day basis. It is difficult to obtain accurate data and rape and violence against women within the family, in part because women are reluctant to report incidents, as women raped by their husbands may hesitate to report because of family loyalty, fear of their abuser’s retribution, inability to leave the relationship, safeguarding the future of their children, or the fact that there are no stringent laws in force protecting the victims of marital rape. Despite underreporting, marital rape unquestionably has an enormous impact on the lives of women who experience it. The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice or equity.
The Supreme Court, in State of Maharashtra vs. Madhukar Narayan Mandikar, has referred to the right of privacy (Art.21) over one’s body. In this case it was decided that a prostitute had the right to refuse sexual intercourse. What is sad to know is that all stranger rapes have been criminalized and all females, other than wives, have been given the right of privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse.
In Sree Kumar vs. Pearly Karun, the Kerala High Court, the offense 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. For 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 result of settlement of separation procedures which was going ahead between the two parties. Subsequently the spouse was held not liable of raping his wife.
In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” Forced sexual cohabitation is a violation of that fundamental right.
The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual’s right to a privacy is lost by marital association. It not only includes violation of article 21 of Indian constitution but also includes article 14 of Indian constitution which states that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this concept.
Marital rape is not completely criminalized in India. It certainly is a genuine type of wrongdoing against ladies and deserving of government’s consideration. It can be seen that marital rape is not a myth but a poignant truth. Women who are raped by their spouses are more inclined to various attacks and frequently endure long haul physical and enthusiastic issues. In this specific circumstance, marital rape is significantly more horrendous for a lady since she needs to remain with her aggressor ordinary. There are many loopholes in Protection of Women from Domestic Violence Act, as the Act does not straightforwardly talk against marital rape. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
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