The first time 'rape' was mentioned in our legal structure was when the Indian Penal Code was written in 1860. Section 375 and 376 of the Indian Penal Code refers to 'sexual offenses.' It defines rape as sex without consent, with consent but under the fear of death or with consent but under false pretenses. It has also defined 'statutory rape' as sex with a woman under the age of 16. The present existing laws have failed to include within its ambit the concept of marital rape. Marital rape violates several constitutional provisions at the same time. It is one of such acts which are itself inhuman and brutal in nature. It is the act of sexual intercourse by one spouse without the consent of the other spouse. Every woman has a right to sexual privacy, and such privacy must be free from infringements. Section 375 and 376 of the Indian Penal Code criminalizes rape but not marital rape. The Supreme Court, in the case of Independent Thought vs. UOI (2017), read the exception to marital rape down as inapplicable to minor wives.
Section 375 of the Indian Penal Code defines rape. One of its exceptions shows the loopholes in the laws relating to women that are after the marriage wife has no separate dignity other than her husband. Marital rape refers to intercourse by the husband with his wife without her consent by using the threat of force or physical violence. Article 14, 15 and 21 of the Indian Constitution talks about Right to equality, Right against Discrimination and Right to life respectively and the exception under Article 375 of the Indian Penal Code violates these Fundamental rights and provides protection to women against sexual assault committed by their husband provided she is of 15 years or less and through recent judgments to women below 18years of age but fails to keep all women on equal footing regarding this provision.
REASONS OF MARITAL RAPE IN INDIA:
The reasons for marital rape are many such as sexual activities of husband or desire to assert the superiority of men over women or petty domestic issues. In essence, therefore, this marital menace's main reason is the prevalent gender disparity that prevails in our society. This is another aspect of our male-dominated society that has created a structure of social standards. Women, whether married or unmarried, do not have equal rights relative to men. It is another tool in the hands of a man to exploit and subjugate women. The most important reason for this is the lack of any legal provisions recognizing to punish the offenders for marital rape, which encourages the man to continue with his behavior and leaves the wife with no remedy.
POSITION OF MARITAL RAPE IN INDIA:
Marital rape in India exists de facto but not de jure. In other countries around the world, the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence. In India, marital rape is mostly seen as a form of noncriminal domestic abuse and not generally as a distinct sexual offence in all cases. Therefore, it is seen that Indian laws have failed to provide proper protection to women in the absence of any provision for criminalizing marital rape. The Indian Penal Code (IPC), 1860, acknowledges marital rape to a limited degree in Section 375. The exception to Section 375 states, "Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape." This age has now been increased to 18 years through a Supreme Court judgement.
NEED FOR A REFORM:
It is high time that we changed the situation in our country, where women have remained subject to prejudice and persecution for ages, and the low socioeconomic status due to systemic factors has made them an increasingly vulnerable class. A refreshing change in the attitude of lawmakers is a dire necessity to assure a woman of her right to dignity, her right to a self-identity even if she is married because marriage is not the tool of depriving a woman of her basic human rights and fundamental freedoms. Further, it is high time that the Indian Judiciary should take positive concrete steps in providing equality to women of all ages irrespective of her marital status and criminalize marital rape in India.
· Marital rape should be perceived by Parliament as an offense under the Indian Penal Code, irrespective of the age of a woman.
· The concept of marital rape should be treated as important as other offences and shall not be considered casually.
· Marital rape should be provided as a ground for divorce.
An important need is the criminalization of marital rape under the Indian Penal Code. It is high time that our society and lawmakers take some serious steps to prevent marital rape and make provisions for such offenders who commit such offences. The silence of law and society encourages these offenders and forces the victims to live a disgraceful life throughout their relationship. Women's empowerment can be done by obtaining greater political participation of women, increasing female literacy levels. Sexual consent is the right of every woman, irrespective of her marital status as much as men and non-consensual sex should be treated the same, irrespective of the perpetrator's relationship to the victim. It is high time when it is not only the legal reforms that are sufficient but social reforms must be given the same relevance so that this menace could be eradicated from our society.
Marital rape is a practice that causes a huge loss to the mental peace of women, and it should be punishable. On the other hand, there should be an adequate legal framework to test whether the act has occurred to the women or not so that no man can be hurt for just making a sexual relationship with a woman to who he is married. Marital rape results in women not being able to take control of their own sexual and reproductive health. Apart from the emotional and psychological effects, its consequences include public health problems, poor maternal and child health, repeat-infections with sexually transmitted infections, and exposure to the risk of HIV infection. As we know, marital rape is not fully criminalized in India, but it is a serious form of violence against women and requires the public and State's urgent attention. We can see how Indian laws have failed to protect women by not criminalizing marital rape. They are treated as the husband's property, he has all the rights to exploit her, and no remedies have been provided to women in this regard.
Amity University, Kolkata