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Marital Rape: an Indian and International Perspective.


Author By- Riya Jariwala

Keywords- #Crime #Marital_Rape #Section375 #Consent #Privacy #Sexual_Autonomy #Equal_Rights #Equality #Feminism


Abstract- Since decades women’s right foundations have been fighting for criminalising marital rape in India but little has come to fruition. India is one of the few nations which still explicitly excludes from the scope of its criminal code, marital rape on an adult woman. While the decriminalisation of adultery and the legalisation of same-sex relationships are a welcome move towards a progressive, open and inclusive society, the petition on criminalisation of marital rape is sub judice in the Delhi High Court in the case of RIT Foundation vs. Union of India. [1]

This article seeks to delve upon the legal regime in India on the issue of ‘Marital Rape’ while also presenting a brief comparative overview of its International status.


Introduction-

Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. Marital Rape is not recognised as a crime in India and is a codified exclusion for the definition of ‘Rape’ under Section 375 of the Indian Penal Code (IPC). This implies that a man is allowed to rape his adult wife without any fear of punishment.

While the demand for criminalizing ‘Marital Rape’ in India in keeping with its progressive neighbours like Nepal and Bhutan is compelling, factors of rich cultural ethos, demographic constraints such as low levels of education, poverty, and social differences are cited as reasons for ignoring the same.

Indian Legal Regime on the phenomena of ‘Marital Rape’

In the landmark judgement of Josephine Shine vs. Union of India[2], the offence of Adultery under Section 499 (IPC) was decriminalised. These judgements have rejected the regressive and paternalistic notions of regarding ‘wife as man’s chattel’ and that ‘the husband is the owner of the wife’s sexual autonomy’. It has been emphasised that laws cannot deny women equal societal status and any provision whose true intent is to ensure a man’s control over the sexuality of his wife is manifestly arbitrary and unconstitutional. Therefore, substantive equality for the protection of rights to both parties of marriage is quintessential. It has also been held that:


“Sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity.”


Despite these noteworthy remarks of the Supreme Court in the aforementioned case, the definition of rape which excludes ‘marital rape’ still stands as law of the land. However, following the footsteps of the Supreme Court, in an ongoing petition, the Delhi High Court has observed that:


“Marriage does not indicate that spouses have ¬all-time consent to have physical relations with the other. Both husband and wife have the right to refuse sexual relations.”


Critics argue that criminalising marital rape would lead to diminishing the sanctity of the institution of marriage. This would become an easy weapon of extortion and harassment in the hands of unscrupulous wives. Jurists also highlight the evidentiary challenges posed in a trial for marital rape, wherein little or no cogent evidence could be produced about the incident. In addition, many sociologists have cited that a charge of marital rape would be terminal and lead to the direct breakdown of the marriage with little or no hope of resolution.

Owing to the financial dependency of women on their husbands in Indian society and a lack of adequate means for their sustenance, husbands serving prison sentences would lead to destitution for the entire family in the events of false or retaliatory charges.

Lastly, it is also argued that adequate remedies exist for victims of marital rapes and sexual assault within the confines of marriage under their respective personal laws since the grounds of cruelty including sexual abuse is available for divorce and judicial separation, in addition to the penal remedies under the Protection of Women from Domestic Violence Act,2005.


International Recognition of ‘Marital Rape’ as Crime:

Article 2 of the UN Declaration of Elimination of Violence against women has defined ‘Violence against women’ so as to include marital rape. [3]

Clearly, this statutory exception under Section 375 (IPC) is inconsistent with Sustainable Development Goals (popularly referred to as ‘Agenda 2030’) [4] such as Goal 5: ‘Achieving gender equality and empower all women and girls’ by eliminating all forms of violence against women and girls in public and private spheres including sexual exploitation, Goal 16: ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’ by promoting and enforcing non-discriminatory laws and policies.

Globally, countries have committed to achieving these standards by either directly criminalising marital rape or making no distinction between rape by spouse and rape by any other person. As many as 150 countries including Bhutan, Japan, Sweden, Switzerland, Russia, Singapore, Thailand, Germany, New Zealand, Nepal, Canada etc have explicitly recognised marital rape as a crime. While countries like North Korea, Iran, Iraq, Myanmar, India, China, Bangladesh, Afghanistan, Pakistan still lag the legislative and judicial will to elevate marital rape to the degree of a crime.


Conclusion-

By strengthening its evidentiary procedures and judicial mechanisms, it is necessary that India criminalises marital rape in consonance with other developed legal systems and adopts UN Sustainable Development Goals in its true spirit.

While the principle that ‘State must not be granted access to invade bedrooms’ is the fundamental basis of privacy, principles of consent, dignity and autonomy must be kept in the forefront to achieve true emancipation of individual liberty.

Criminalising marital rape by omitting the controversial exception to Section 375 would be the next bold move towards a feminist, progressive and modern Indian society after striking down of Section 499 and Section 377 of the Indian Penal Code.



[1] W.P (C) No. 284/2015 (India)

[2] https://indiankanoon.org/doc/42184625/

[3] https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/48/104

[4] https://sustainabledevelopment.un.org/post2015/transformingourworld


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