APPROACH OF INDIAN JUDICIARY ON MARITAL RAPE
Updated: Mar 20
Author: Prakhar Dubey, II Year of B.A.,LL.B(Hons), from University of petroleum and Energy Studies
Marital Rape has been widely debated in country like India. India, like other nations, does not criminalize this practice. “In 2009 laws on Elimination on Convention against Women came into effect, but if we talk about India, it did explicitly ratified the treaty, only exception being Section 375 of Indian Penal Code 1860 which considers force sex in marriage as a crime duly when the wife is under 16 years of age.”
The question comes here is it justifiable? Activist and media endorses the opinion that India’s patriarchal society makes it necessary and imperative that martial rape should be recognised as a crime against humanity. On the other hand orthodox view remains that marital rape cannot criminalize because of the scared nature of marriage in Hinduism, and criminalizing it would henceforth question the dignity of marriage as a social institution.
India practice the theory based on equity, justice and good conscience, but it still not recognize the right of women to control marital intercourse in which women has no freedom to deny or have no authority to question the existing fact. As the nation lacks any legal provision regarding the martial rape, the victim’s sole method is to go to court. Courts also interpret these cases in different ways to give strict punishment but lack a designated legal document by which they are bound and hence cannot describe per se forceful intercourse by a man upon his wife calling it marital rape.
“Legal scholars have identified 3 types of marital laws
Battering rape: Women tend to experience both physical and sexual violence in the relationship, and they experience this violence in various ways. Some women are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.
Force-only rape: In what is called “force-only” rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.
Obsessive rape: Other women experience what has been labelled as barbaric; these assaults involve torture and/or “perverse” sexual acts and are often physically violent.”1
Thus, the Judiciary deals with these issues but need a proper backing from legislature, the law meant to be made according to changing circumstances. In the past there have been instances when the Government presented their views behind not criminalizing marital rape.
The marriage being sacred and criminalization of the act in India would lead to destabilization in society which forms the basis of social institutions like family.
There are a huge number of fraudulent cases that might be filed against husbands. It is necessary to tarnish the assumption on the part of the government and other orthodox institutions. It also said that what might seem like rape to the wife may not be rape in the eyes of the law.
PRESENT SCENARIO IN INDIA
Till now we have come to know marital rape is not a crime in India, thus bringing no serious punishment. The rules are quite arcane and will depend upon the court or the one who is judging the case. Rape law is dealt in the Indian Penal Code 1860 drafted by Lord Macaulay in which Macaulay gives provision for rape, exception but doesn’t provide us with an exception in the case of a martial rape. Sexual intercourse of a man with his lawful wife not being under the age of 15 is not rape.
As 376 which provides punishment for the rape for rapist can be rebuffed with detainment, not under the period of 7years, but it may extend to 10 years.
“There is no legal help or security for the spouse after the age of 15th which is against the human right. On the same note, it recommend the legal age for the marriage of girl to be 18 years. A protection from the sexual mishandling just up to the age of 15 years. According to the Indian Penal Code 1860, the case where a spouse can be criminally arranged for martial law is under:- “ when wife is between 12-15 years of age, if punishable with 2 years of detainment or fine or both may not be under 7 years, but could be extended to 10 years and fine can be imposed.”2
Rape by a legally separated spouse, the offence being culpable with detainment of 2 years. But here the law stands silence for women/girls age above 15 years.
The protection of women from domestic violence act 2005 was passed for the protection of women from domestic violence of any kind. Marital rape was considered a violent act of any kind against women right to live with dignity highlighting the importance which needs to be interpreted in light of Article 21 of the Constitution of India.
RIGHT TO LIVE WITH DIGNITY
In Francis CorailleMuin v. Union territory of Delhi
The right to life was highlighted under Article 21 of the Indian Constitution. According to reasoning applied to same case the right to live with human dignity is a fundamental component, and all that accompanies it has to minimum specification of life. This right is attached to independence of the person, thus showing women have the right to deny sleeping with their husband after marriage.
In, Railway Board v. Chandrima das, the court observed that rape is not a crime against an individual but a great violence against society as a whole. The offense of rape abuse is against the right to live with dignity.
In, Bodhisattwa Gautam v. SubhraChkraborty, the court held that rape is a manner of violence against the marital exception. The principal is violence against the spouse’s character to live with dignity and give the spouse appropriate time to drive wife to have sexual intercourse without her will.
“Recently the Ministry of Home Affair has constituted a national committee to reform criminal laws headed by Ranbir Singh. The committee would be working on the report to present before the government to reform the criminal justice system.” It is high time where we need to look at the matter concerning marital rape and law can be drafted depending upon the existing needs. Thus women can live in environment where she feel safe and comfortable.