INTRODUCTION
Recently, an affidavit was filed by the Central Government in the Delhi High Court[1] regarding not criminalizing marital rape. The government says doing so will destabilize the institution of marriage and at the same time, there is a huge possibility of its misuse. In such a situation, the debate about marital rape has once again erupted. Man is a social creature. To maintain order and harmony in society, it has created some social legislation and institutions. One of these institutions is marriage. Marriage[2] is a system that solves the regulation of child origin and sexual intercourse. In this, men and women live by mutual consent promising to discharge their obligations. The man considered himself above all kinds of prior permissions. As the nature of society became more masculine, the urges and rights of men began to grow.
WHAT IS MARITAL RAPE?
Today, when the discussion of women’s rights is demanding to make the institution just, there are situations of conflict. Section 375 of the IPC[3] states that having sexual relations with a woman without her free consent falls under the category of rape. But the same section also sets an exception that if a married man has an affair with his wife above the age of 15 years, it will not be considered rape. Obviously, here the penal code appears to be ignoring the will of the woman or consent. In such a situation, the forced relationship of the man against the wishes of the bride is called marital rape[4].
CAUSES & ISSUES OF MARITAL RAPE
There can be many reasons behind marital rape. Prominent among them are men’s desire for superiority over women, minor domestic issues, and suppressing women who demand their rights in marital relationships. Apart from this, one of the reasons is also the role traditionally assigned to married women in our society. A good wife follows her husband’s instructions and fulfils all his demands without asking anything. The relationship is considered an important part of the married woman’s duty towards her husband. The notion of such a good wife is not good for women but only for men. Another major reason is the absence of legal provisions that do not recognize marital rape as a crime. In essence, the main cause of this marital hazard is the gender inequality that is widely prevalent in our society. Studies around the world show that marital rape causes many health problems. It may also include HIV and other sexually transmitted infections.
Apart from this, physical violence is inherently involved in it. Forced labour during pregnancy can also have many health-related effects on the woman and the children who are born. Due to marital rape, the victim often starts experiencing depression, anxiety, emotional distress and suicidal thoughts. Due to all this, the woman becomes a victim of mental stress which is neither beneficial for the woman nor her children. Many research has shown that in a marital relationship, rape does not happen only once but continues to happen. As a result, psychological and physical effects last for a very long time.
ARGUMENTS AGAINST CRIMINALIZING
The first argument is that marriage is a social contract, in which a man and a woman co-exist for happiness and childbearing. In such a situation, the argument is that when the consent has already been taken for the sexual pleasure under the contract, how can it be put in the category of rape? It was in this context that Justice Matthew Hale opposed it in the 17th century. According to him, if a husband has a physical relationship with his wife by a valid marriage, then it cannot be placed in the category of rape, even if that relationship is made by force.[5] According to Section 13 of the Hindu Marriage Act, depriving the partner of sexual happiness for any reason other than illness or physical disability is a form of cruelty.
The third argument is that marriage is a matter of personal law that cannot be interfered with by the court unless it is inconsistent with the fundamental rights. In the case of Shayara Bano v Union of India[6] also, talaq-e-biddat was outlawed by the Supreme Court because it was contrary to the principles of the Quran. While the sexual relationship has been accepted in books of all religions as a mandatory condition of marriage.
Apart from this, an argument is also made that Article 15 of the Constitution[7] talks about equality on the basis of caste, gender, and religion of the masses. In such a situation, if the legal protection under marital rape is given only in favour of women, then it will be incompatible with men on the basis of gender. That is, the argument here is that men should also get the right to suffer from marital rape. At the same time, it is also argued that it is almost impossible to prove that the relationship was established by consent. Some legal experts are also of the view that action can be taken against this type of cruelty under Section 498A of the IPC[8]. Also, Section 3 of the Protection of Women from Domestic Violence Act, 2005[9] covers gender rights, so there is no need for a new law.
ARGUMENTS IN FAVOUR OF CRIMINALIZATION
First of all, the petitioners are of the view that marriage is a social contract, but under this contract, the man does not have ownership over the woman but the physical autonomy of both of them is maintained. In such a situation, any kind of physical cast on a woman is against the basic spirit of the Constitution.
The second argument is made against Section 13 of the Hindu Marriage Act[10], in which the avoidance of pleasure is considered cruelty. It is argued that the inability or suffering can be not only physical but also mental. If a woman’s mental state is not good then she will not have sexual aspirations at that time. It is not the cruelty of that woman to the man but the system.
The third argument is that not every injustice can be hidden under the guise of personal law. In such a situation, the supporters demand that this famous saying be seen based on this political personal, linking it with measures against women’s rights and exploitation. Personal laws stand directly based on constitutional rights in this matter.
The fourth argument is that under the provisions of Article 21[11], every person has the right to live in a dignified manner with physical liberty. If it is violated, it should definitely come under the category of an offence.
In this context, it is also baseless as to, how the offence will be proved in cases of marital rape? The answer is that if it is difficult to gather evidence in a particular crime, it does not become the basis for it to be ignored. In such a situation, the history of sexual violence of the accused, the political test, and the circumstantial witnesses can also be resorted to.
CONCLUSION
With the criminalization of marital rape, there will be a clear-cut message to society that marital rape is not the privilege of any husband and such crimes against women will not be tolerated at all. In this context, Additional Sessions Judge Kamini Lau[12] said that not declaring marital rape as a crime will be called a double standard of an equality-based constitutional system. Words written like liberty and equality in the Constitution would be hopeless if the country’s half population is not given rights over their own bodies, but a legal solution alone is not enough. So, these were some of the pros and cons of marital rape, given India’s prison situation, it would be a little difficult to tell whether marital rape will be criminalized in India in the near future or not because setting up criteria for it can be a bit challenging for parliament. Women are the backbone of the entire human civilization. This debt has been very tilted so far. Now it’s time to support it. Only then will the human civilizational body be able to keep pace with time.
Author(s) Name: Akshat Singh (Dr. Ram Manohar Lohiya National Law University, Lucknow)
Reference(s):
[1] Nupur Thapiyal, Delhi High Court Passes Split Verdict On Criminalizing Marital Rape, Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional, Live Law, (May 11, 2022, 2:30 PM), https://www.livelaw.in/top-stories/delhi-high-court-passes-split-verdict-on-criminalizing-marital-rapejustice-rajiv-shakdher-holds-exception-2-of-section-375ipc-unconstitutional-198832
[2] James M. Henslin, Sociology: A Down-To Earth Approach (Pearson, 2016).
[3] Indian Penal Code, 1860, s 375.
[4] Kersti Yllo, Marital Rape, The Battered Women’s Justice Project, (1996).
[5] Rob Jerrard, Marital Rape, 65 POLICE J. 340 (1992).
[6] Shayara Bano v Union of India, AIR 2017 9 SCC 1 (SC).
[7] Constitution of India, 1950, article 15.
[8] Indian Penal Code, 1860, s 498A.
[9] Protection of Women from Domestic Violence Act, 2005, s 3.
[10] Hindu Marriage Act, 1955, s 13.
[11] Constitution of India, 1950, article 21.
[12] Sanjeev Sirohi, Make Marital Rape An Offence: Delhi Court, Legal Services India, (May 28, 2021, 11:59 PM), https://www.legalservicesindia.com/law/article/1962/16/Make-Marital-Rape-An-Offence-Delhi-Court
