Marital Rape: Does Consent Matter or not ?
“Rape is rape irrespective of whether it is committed within or outside marriage”
Marriage in Indian society is considered to be a sacred institution; it is the very foundation of a stable family and a civilized society However it is not so true in real. Marital rape is one such brutality. Marital Rape refers to a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.
The Indian Penal Code in Section 375 defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud at a time of when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 16 years of age with the exception of sexual intercourse by a man with his own wife, the wife not being under fifteen years of age”.
The Indian law acknowledges rape if it is committed by a stranger but at the same time if it is committed by a husband, no legal remedy is available for victims. Advancing well into the timeline, the most humiliating and debilitating fact is that marital rape is not an offence in India.
Marital rape at that time had blurred definitions but with the pressure of the second wave feminism, the fog upon the offence started to disperse. Consent plays a role on various levels in the case of marital rape, there can be different kinds of forceful sex upon a wife and the decree of consent would differ in such situations.
1. Forceful Sex: This is a type of marital rape in which the husband uses only enough force required to break her right to consent by using different methods such as Coercion, Application of Force.
2. Battering Rape: In this particular scenario the husband doesn’t only force himself upon the wife but also beats her during, before or after the rape.
3. Unusual Methods for sex: In this type the husband tortures the wife to derive his sexual pleasure and uses perverse methods to fulfill his fantasies which the wife may not have consented to, he may even record her in that vulnerable condition which is in every way a violation of her body.
It’s the will of a wife or any woman in that context to choose her own sexual preferences, person to couple with and also the time and moment when she desires to have intercourse. Being strong due to biological factors doesn’t give any man the power of god to have his way with whoever he wants. Marriage is a union between two people to be partners in a relationship, this means that both the entities are separate in nature and by law, consent matters when it comes to any sort of decision.
Complications faced in criminalizing Marital Rape
1. Lack of Knowledge: Many women don’t know that they actually have the right to prosecute their better half for such crimes, they don’t know that their consent actually matters before her husband can make even the most subtle sexual move.
2. No legal protection: A husband is given free pass by the legal statues in many countries where marital rape has not yet been termed as a crime, so as long as the protectors don’t take the step to protect the married women from getting violated, this monstrosity will never stop.
3. Cultural and social factors: The crown for the legality of marital rape is worn by the people who have set wrong standards about marriage and give their daughters away in marriage as a property of the husband. They never take the daughter seriously even when she tries to complain about her situation. Orthodox mindsets are giving rise to the uncivilized behavior one portrays as a man.
4. Purpose of arranged marriage: Marriages are still arranged for the purpose of procreation, or extending family due to which women don’t get the dignity. Also society gives different roles to man and woman, so as a wife a woman is expected to be submissive, docile and sacrifice her happiness for her family. So many women believe submitting to their husband’s will is their duty and in fulfilling all these duties rights of women are suppressed by society.
Due to these factors our community doesn’t take marital rape as a crime and often the cases go unreported.
Marital Rape: Violation of Fundamental Rights
The exception under Section 375 which permits a man to have sexual intercourse with his wife without her consent is the infringement of Article 14 & 21 of Constitution of India. Article 14 protects a person from discrimination. But the exemption under Section 375 of IPC, 1860 discriminates a wife when it comes to protection from rape. Article 21 provides the fundamental right to live with human dignity.
The Constitution under Art.51A (e) states that it is the fundamental duty of every citizen of India to denounce practices that are derogatory to the dignity of woman. Thus the legislative framework should make amendment under Section 375 of IPC and save married woman who face evil of forceful sexual intrusion at the hands of their husband.
The role of the state in a democratic egalitarian society is to protect and promote the rights of its citizens regardless of their sex or social status. The International instruments, the national laws as well as the constitutional laws bind the state to promote the rights of women as citizens regardless of the fact that they are married or not.18 Marital rape exemptions are unconstitutional.
The fundamental rights guaranteed by the constitution are not strictly scrutinized neither these are correctly applied.
The following suggestions are made in the light of the above discussion:
1. Marital rape should be inculcated as an offence under the Indian Penal Code.
2. The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
3. It should not be a defense to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
4. The wife should have an option of getting a decree of divorce if the charge of marital rape is proved against her husband. Demand for divorce may be an option for the wife, but if the wife does not want to resort to divorce then the marriage should be allowed to continue since there would be valid consent,
5. Corresponding changes in the matrimonial laws should be made.
6. Counselling should be given to the victims of marital rape.
7. The rights of a married woman should be tantamount to the rights of an unmarried woman.