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MARITAL RAPE- THE ASSUMED CONSENT

Author: Rashmi Tiwari, V year of B.A.,LL.B. from New Law College


Abstract

Marital Rape is the epitome of an implied consent. The victims of marital rape are taught to be submissive and raising their voice against it brings them shame and abandonment. In this article status of marital rape in India and its legal recourses are discussed.

KEY WORDS: Marital Rape, Laws related to Marital Rape.


Introduction

Marriage is a union of two people cohabiting together for the purpose procreation. According to Hindu law, marriage is a sacrament which means that once the wedding knots are tied it cannot be broken. In Muslim law, marriage is a social and legal contract between two individuals.Polyandry is strictly prohibited but polygamy is not. In India marriage is deemed essential and the primary status of women is of a wife and a mother. Therefore, crime against women have some legal recourse but the crime against women as a wife has little legal recourse. Domestic violence against women is on rise. About 70% of women in India are victims of domestic violence according to the Crime in India, 2019 report of National Crime Records Bureau (NCRB).


One such form of domestic violence is Marital rape. Marital rape is the act of having forceful sex with the spouse without obtaining explicit consent. The victims of marital rape are taught to be submissive and not complain or voice their concern because this will violate the sanctity of their relationship.In more than 100 countries Marital rape has been criminalised but, unfortunately, India is one of the 36 countries where marital rape is still not criminalized.Many legal amendments have been done for the protection of the women in criminal law but the decriminalization of marital rape in India still undermines the dignity and human rights of women.


The Kerala High Court delivered a landmark judgment in August 2021 that deemed marital rape to be a valid ground for divorce. The bench held that while marital rape is not criminalised in India, it would not discourage the court from recognising it as an act of cruelty and granting a divorce.


Status of Marital Rape in India

Marital rape has always existed but the discussion on its legal recourse have come into light in recent developing years. Marital rape is the epitome of an implied consent. The wife is presumed to have given perpetual consent for having sex after marriage. Section 375 of Indian Penal Code (IPC) defines rape as it includes all forms of sexual assault involving non-consensual intercourse with awomen.However, exception 2 of section 375 exempts unwilling sexual intercourse between a husband and a wife over the age of fifteen years from Section 375 definition of rapeand thus immunizes such acts from prosecution.


Violative rights of women against marital rape

  • Doctrine of Coverture: The Non-Criminalised nature of Marital rape ismainly influenced by the doctrine of Coverture which is a legal doctrine in which upon marriage the woman’s identity was merged with that of her husband depriving her of legal rights and obligations whereas single women had right to hold property. The definition of rape under IPC was drafted under this doctrine.


  • Violative of Article 14: Although the Indian Constitution guarantees equality to all, Indian criminal law discriminates against women victims who have been raped by their own husbands.Marital rape infringe the right to equality enshrined in Article 14 of the Indian constitution. This is mainly due to the doctrine of coverture because it was framed during the Victorian rule but now as the time have changed, law should also be amended. Exception 2 of Section 375 violates the right to equality enshrined in Article 14 as it discriminates against married women by denying them equal protection from rape and sexual harassment. This Exception creates distinction on protection of women in two classes based on their marital status.


  • Violative of Article 21: It states that no person shall be deprived of his life and personal liberty except according to the procedure established by law.Rights to personal liberty, privacy, dignity, and bodily integrity also comes under Article 21 of the Constitution. In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with regards to personal liberty, privacy, dignity, and bodily integrity. 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.The right to privacy includes an ability to make intimate decisions regarding one’s sexual or procreative nature and their decisions in respect of intimate relations. The Supreme Court in all these judgements has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.Therefore, forced sexual cohabitation is an infringementunder article 21 of the fundamental right.


  • Violates the Spirit of Section 375 of IPC: The purpose of Section 375 of IPC is to protect women and punish those who engage in the inhumane activity of rape.But non-criminalization of marital rape is totally contradictory to that objective, as the consequences of rape are the same whether a woman is married or unmarried.Moreover, married women find it more difficult to escape abusive conditions at home because they are legally and financially dependent on their husbands.


Recommendations

The JS Verma committee which was set up after the Nirbhaya Gangrape Case recommended criminalizing marital rape as this will protect women from abusive partners and they can save themselves from domestic violence and sexual abuse.


The UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2019 recommended that the Indian government should criminalize marital rape and punish its offenders.


Conclusion

In today’s time, Indian Law recognises women as a separate legal entity and therefore it should criminalize marital rape by scrapping exception 2 of section 375 of Indian Penal Code. It will imbibe more power and confidence in Indian women and will also make our country a better place.