Author: Kanupriya Luthra, pursuing BBA LLB (H) from Amity Law School, Amity University Noida, U.P
This article firmly deals with marital rape that has been sidelined in our judicial and legal system and the prospect law that needs to come in force to criminalize marital rape which is an exception to section 375 of the Indian penal code, 1860 presently.
“To call the women the weaker sex is libel, it is a man’s injustice to woman. If by strength is meant by brute strength, then, indeed, the woman is less brute than man. If by strength is meant by moral power, then woman is immeasurably mans superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater courage? Without her man could not be. If non-violence is the law of our being, the future is with woman who can make a more effective appeal to the heart than man”
- Mahatma Gandhi, To the women of India
As far as Indian social system is concerned, there are some peculiarities of the system which make it a different and in fact, a difficult place for women to live in. There are various social practices that are entrenched so deep into our psyche as a nation that it is difficult, if not possible, to change the attitude of the masses towards women.
Rape is an offence not just against a woman’s body but against her very existence
Crimes against women are on a rise. Rape is one of the gravest offences being committed at a higher rate in villages as well as cities, upon women of all ages and across all sections of the society. Marital rape or is the demonstration of sex with one's life partner without the mate's assent. The absence of assent is the basic component and need not include physical viciousness. Marital rape is viewed as a type of aggressive behavior at home and sexual maltreatment. Albeit, truly, sex inside marriage was viewed as a privilege of life partners, participating in the demonstration without the mate's assent is presently generally named assault by numerous social orders far and wide, denied by universal shows, and progressively condemned.
The issues of sexual and aggressive behavior at home inside marriage and the nuclear family, and all the more explicitly, the issue of viciousness against women, have come to developing worldwide consideration from the second 50% of the twentieth century. In any case, in numerous nations, marital rape either stays outside the criminal law, or is illicit yet generally endured. Laws are infrequently being authorized, because of variables running from hesitance of specialists to seek after the wrongdoing, to absence of open information that sex in marriage without assent is unlawful.
Marital rape is all the more generally experienced by ladies, however not only. Marital rape is frequently an interminable type of savagery for the casualty which happens inside oppressive relations. It exists in an unpredictable trap of state governments, social practices, and cultural belief systems which join to impact each particular occurrence and circumstance in shifting manners. The hesitance to condemn and arraign marital rape has been ascribed to customary perspectives on marriage, understandings of strict regulations, thoughts regarding male and female sexuality, and to social desires for subjection of a spouse to her better half—sees which keep on being basic in numerous pieces of the world. These perspectives on marriage and sexuality began to be tested in most Western nations from the 1960s and 70s particularly by second-wave women's liberation, prompting an affirmation of the lady's entitlement to self-assurance (i.e., control) of all issues identifying with her body, and the withdrawal of the exclusion or safeguard of marital rape.
In August 2019, former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India The Indian government has suggested that those seeking to stop women being raped by their husbands were “blindly” following Western customs, “This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.”
None other than the Supreme Court agrees that criminalizing marital rape does not threaten marriages in any way. In Independent Though v. Union of India, the Court specifically explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It said if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly cannot either. Interestingly, the High Court of Gujarat also recently ruled that the non-consensual act of marital rape violates the trust and confidence within a marriage and that marital rape is what has damaged the institution of marriage.
The exception to section 375 creates two categories of women based on their marital status and prioritizes an unmarried woman as a married woman against rape protection - this is a direct contradiction to ensuring that every Indian citizen is guaranteed the same protection of the law. Exception 2 is also a violation of Article 21 of the Indian Constitution, which states: "[n] no one is denied his or her life and personal freedom except under the legal procedure." In recent years, the Supreme Court has often interpreted Article 21 to mean that changing contexts pose new challenges to the fundamental rights of citizens and go beyond the literal guarantee of life and freedom, including rights to health, privacy, dignity and safe living conditions. and secure environment and continuous internet among others.
For example, in the Suchita Srivastava v. Chandigarh case, the Supreme Court stated that the right to make decisions about sexual activities was within the rights of personal freedom, privacy, dignity, and physical integrity under Article 21 of the Constitution.
The strongest argument regarding legal precedents can be found in Justice K.S. Puttuswamy (Retd.) Against Union of India, in which the Supreme Court recognized the right to privacy as a fundamental right and explicitly said that this "includes the privacy of decisions, which is reflected in the ability to make intimate decisions, which are mainly from." sexual or reproductive decisions exist regarding intimate relationships. “Forced intercourse and living together is a violation of this fundamental right. Since this ruling does not differentiate between married and unmarried women and (luckily) there is no explicit ruling stating that women lose their fundamental right to privacy upon marriage, all women have the fundamental right to agree and to be able to say no.
If Indian lawmakers need help figuring out how codifying marriage rape as a crime in our laws should sound, here's a pro tip from a bank of serving Supreme Judges Gita Mittal and C Hari Shankar of the Supreme Court of Delhi. "Marriage does not mean that the woman is ready, willing and willing at all times [for sex]. The man has to prove that she was an approving party. “It's really that simple.
Marriage does not thrive on sex, and fear of frivolous litigation should not prevent protection from being trapped in those who are caught in abusive cases where they are disparaged into the status of a matter. Except for the judicial awakening; First and foremost, we need to raise awareness. Men are the culprits of this crime. "Educating boys and men to see women as valuable partners in life, in the development of society and in achieving peace is as important as legal action to protect human rights for women," said the United Nations. Men have a social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.
In a country full of misunderstandings of rape, deeply rooted cultural and religious stereotypes and changing social values, globalization must quickly change the letter of the law.