What do you understand by the term “marital Rape”? It’s not something heard as common as rape. It’s not any new kind or category of rape, but instead it has prevailed in our Indian societies since ancient times. But it has hardly been debated upon in the past and even in today’s societies.
In simple words it means- when a man imposes sexual intercourse on his wife, with force or with threat or threat of force, or when the wife is not granting consent or not able to give consent. Also as per a report by the World Banks data , India is also one of the few countries , where spousal or marital Rape is legal.
For many years, various social activists, large civil societies, and general people at large have been asking for marital Rape to be criminalised, but it’s still not regarded as a serious problem by the legislators in India and such approach by the government and legislators is really very much problematic.
On August 29, 2017 the center directed the Delhi High Court that “criminalising marital Rape may lead to the destabilisation of the institution of marriage” and it would become an easily available tool for harassment of husband’s. The center in their affidavit, also said that the criminalization of Marital rape may also lead to its misuse, just like misuse of sec 498A of the Indian penal code dealing with cruelty by husband or his relatives on the woman.
The above stated was the response to petitions filed by various NGOs including – the RIT FOUNDATION, ALL INDIA DEMOCRATIC WOMEN’S ASSOCIATION and a marital Rape survivor. These petitions challenged the exception in section 375 of IPC i.e the offense of rape and the exception challenged was – the sexual intercourse by a man with his own wife, when wife is not under 15 years of age, is not rape.
Many tweets and comments, even debates by various popular celebrities, judicial officers, legislators etc clearly regarded that forced sex in marriage cannot be called rape and they even do not consider this issue seriously at all and even make fun of it. This is the plight of women and atrocities faced by them, in the name of marriage and society.
Regarding rights and courage to stand against forced bodily intercourse, women do not seem to have rights over their own body in society. It’s men who seem to have more rights, authority, and power over women’s bodies than Women herself. Men do what they want to, but Women can’t. Why so? Many reasons and restrictions, social customs and evil traditions support it and women face many restrictions due to these .
Also, the mistakes by men, where minutest or enormously grave, are ignored and often tried to cover up, in society. But such is not the case with women. Women, even for their slightest mistakes or even no mistake at all, are tried to be proved as culprits, due to societal norms and customs favouring men the most and women the least. Mistakes by Women often become the talk of the society, whereas mistakes by men are covered up mostly by lame reasons and not treated as grave at all. Even the defense taken by men for evil acts like rape, molestation etc is the mere statements regarding women’s bodily structures or her dress or just because she is a woman, so it made men do such acts and they are mostly not at all guilty of it.
Are these justified reasons? No. Not at all. Not only the rape accused, molesters etc feel not guilty of their acts but also through even feel proud of what they did to a woman. They regard it as an act of their manly behaviour and courage and power over women and don’t see it as a crime at all.
Women are tortured a lot, sexually, physically beaten, bitten during intercourse, etc and all is done to have sex forcefully, against her will, in marriage. They are tortured for years and years and can’t share their fears and atrocities with anyone. They are even forced to have sex during their periods, during pregnancy and when not. Society so not regard it a rape, but what a women goes through while facing such acts, by her own husband , such cruelty is equivalent to a rape.
What society teaches a women is – “he is your husband and can do anything to you. He is your pati parmeshwar (god) and has full control over you, your body, your life and women don’t have any rights to complain against it”, but is this valid to be taught by a society? Even today’s educated, knowledgeable women face this grave problem in the society. They can’t come up with the physical abuse they face while intercourse against their will in marriage.
The reason for this brutality is the social sanctions that men have in our society. Men escape from their wrongdoings just by being men, very masculine and having social sanction that he is all powerful. It’s really very hard to convince women to walk out of an abusive marriage and society doesn’t let the women to gain strength and raise voice against the act of marital rape.
It’s often said to women by society at large that – it’s okay if her husband beats her, forcefully have sex with her, but at least she has a house to live and a roof to stay as otherwise she won’t have any respect and place to live in the society. What is all this nonsense all trying to depict. Like whatever a man does to a woman is absolutely okay and she needs to live with it. No, it’s not acceptable at all. These thoughts of society require to be cleared up and women’s rights are to be established, even for equality in marriage.
Indian societies provide very little or no support to a victim of marital rape. Society shuns her and law ignores her. What they regard marriage is just like marriage provides man a license to abuse women. And basically the current law allows a woman to be raped as long as she is married and the rapist is her husband. This is the status of women in our societies.
What according to you is more important?
Traditional orthodox thoughts or women’s rights
Do Indian husband’s have right to force their wives to have sex with them, when and how they want to? Are men entitled to a woman’s body completely, even more than she herself, after marriage? Is culture regarded over consent in marriage?
These questions need to be answered by our legislators and judicial bodies.
Also when it comes to support regarding violence against women, there is a huge difference between:
Support for marital rape
And
Lack of support for legislation on marital rape for the fear of misuse.
Still debates are continued on this topic that whether marital rape is a crime or not? Shame on those who consider it not as a crime. Of course it’s a crime, like any other rape. Rape is a Rape. Just because it happens between a married husband and wife on the violation of consent by one, on the other, does not differentiate it’s base of being a rape .
In our patriarchal societies, there’s an unequal power relation between men and women and historically also we can say that men have a choice of having sexual intercourse, when and where they want it and women do not have that choice. Thus in the past, in such situations, it was very likely that women were forced to sex, when she does not want to have it, even within the marriage. Since ancient societies, it’s been a long debated question that women should have equal rights. Then why not equal rights to women in marriage, where there is consent, Mutual respect and dignity between the spouses. Question of consent does not come up in marriage just because of the unequal relationship and our society as a whole needs to understand and rethink these old concepts about what marriage is and also the whole institution of marriage needs to be based on a much more equal footing.
Current legal framework in India has to change its approach towards marital rape and amend laws for the same. Also in year 2005, the protection of women from Domestic Violence Act, 2005 was passed, which though didn’t considered Marital Rape as a crime but it considered it as a form of domestic violence against women and under the provisions of this Act, if a women has faced marital rape then she can seek assistance from court and obtain judicial separation (divorce) from her husband. But this is only a piecemeal legislation and many more changes and upgradation needs to be done by the parliament in regard with marital Rape.
Also the various laws in India, need to be in accordance and in consultation with the constitution of India and any law against it is regarded ultra vires and unconstitutional. The doctrine of marital exception to rape fails to meet the standards of conformity with the provisions of article 14 and article 21 of the constitution of India.
As under the article 14 – Indian constitution provides fundamental right of equality before law and equal protection of laws to every citizen of India. But it’s essential to prevent stereotyping based on gender, for curtailing gender biased differential treatment. And thus during testing of equality, it’s essential that stereotyping be enjoined by the patriarchal society and its ideology does not pre determine the reasonable classification of right or wrong on the basis of gender.
As under the article 21- India constitution provides fundamental right of right to life and personal liberty. The marital exception to rape violates the right to privacy, bodily self determination and right to good health and good life, which is recognised as an indispensable and integral part of the right to life and personal liberty.
The main trouble in India society is that the marital relationship is practically accepted as sacrosanct in our societies and even the judiciary places a closed eye towards the trauma, cruelty, pain, loss of self-respect, loss of dignity that a victim of marital rape faces due to it. I don’t understand- how can the laws be so ignorant towards such a huge level of violation of a fundamental right of freedom of and married women, the right to her body , to protect her from such bodily and emotional abuse?
Conclusion:
The women have till now and still continue to be victimized by the man and the society at large. The patriarchal structures in our society, with their Power over societal norms, have deemed to regard marriage as a license to legal unwilling sex . There is a total negotiation of the self worth of women in the society by its own hands. It is High time that the dignity and freedom of a woman over her body and as a person must be recognised. In western countries, marital Rape has been criminalised and also gender neutral laws are made over there. This is done by their individual rights approach regarded while making laws which are gender neutral and equal to all. Such individual rights approach needs to be adopted in India also, while making laws.
Marital rape will neither be criminalised, nor be punished by law, until and unless the legislators and the society completely acknowledge women’s individual rights within the marriage.
Thus, marital Rape should be criminalised in India and it can be achieved by applying an individual rights approach to violence against women. It’s high time now and criminalization of Marital rape as an criminal offense with severe punishment is the need of the hour in our Indian society.
“The views of the authors are personal“
