NON-CRIMINALIZED MARITAL RAPE: A CRIME?
BBA LLB, Batch: 2019-2024
In India, marriage between a man and a woman denotes that both parties have assented to participate in sexual activities. In addition to this, sexual intercourse between a male and a female without consent is statutory rape under the purview of Section 375 of the IPC. However, Section 375 contains an exception that the husband’s sexual intercourse with his wife is legal if she is over 15 years of age.
India is one of 36 nations where sexual intercourse is legal between couples, irrespective of consent and the means. Research by the National Health and Family Survey -4 recently found that 5.6 per cent of women were survivors of “physically pressuring her to have sexual intercourse with him even though she did not want to.” With this being the statistics in India, a country with rich values on culture and traditions, there seems to be a massive issue of expectations on a gender basis concerning Marital Rape. In a country like ours, women are pulled down with domestic responsibilities ,understood as their ‘duties’. On the other hand, masculinity takes a toll on the husbands. Not all men fall under the category of violence, and research shows that “violence is more likely among men who experience a disconnection between their circumstances and emotions”. There appears to be a correlation between the masculinity norm of manipulating or unplugging from one’s feelings and a person’s propensity for violence. This point of view can be noticed in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat (2017), where it was held that “making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”. Nonetheless, due to the Indian legal structure’s inability to identify the concept of marital rape directly as a crime, it was pronounced by the court that the husband is responsible only for infuriating the dignity of his wife and immoral sexual intercourse.
Though normalizing marital rape will be a clear-cut violation of Articles 14 and 21 and not valid according to Section 9 of the Hindu Marriage Act, 1955, there are a few issues to look in to that hinder the criminalization of marital rape. Like how Dipak Mishra, the Former Chief Justice of India, said in August 2019, marital rape is not ought to be recognized as a criminal offence as such in India “because it would build utter chaos in families” and that “our country is maintaining itself because of the family forum that upholds traditional values.”
The concept of marital rape being criminalized does not guarantee that the rules will be followed. Worldwide, there is absence of knowledge, and hesitation or complete unwillingness of officials to act. For a statute to be effectively implemented, the actions it forbids must be viewed as violent and deserving of punishment by society. Consequently, even though a state passes legislation banning marital rape, the relevant provisions connected with this concept are often disregarded because this action is not deemed illegal in society. Other issues remain that more people are unaware of the laws on the books, even in places where marital rape is prohibited. Since marital rape laws are relatively recent and seldom enforced in most regions of the world, many people are oblivious to the fact. Traditional views on marriage are firmly embedded in the public psyche, and significantly fewer people understand that pressuring a partner into sexual intercourse is incorrect, let alone illegal.
All the above issues come around to one big stereotypical view in Indian society, i.e. A woman is educated that after marriage, she belongs to her husband; she is regarded not as a human being, but as an item, an object that her family has given to the husband’s sole proprietorship. A marital or other relationship between the perpetrator and the victim must not be deemed a valid justification or mitigating cause for a lighter rape sentence. Considering all these conditions, laws are to be framed and enforced, in line with the present era and various possibilities of offences that could happen. Changing times call for changing rules, and it is already time!
- Samarjit Pattnaik, Naomi Chandra, Satyam Chaturvedi, The Viewpoint: The law on Criminalization of Marital Rape, BAR & BENCH (Dec. 6, 2017, 11:19 am), https://www.barandbench.com/view-point/viewpoint-criminalisation-marital-rape.
- Pallavi Prasad, Why It’s Still Legal for Indian Men to Rape Their Wives, THE SWADDLE (Jan. 20, 2020, 9:43 am), https://theswaddle.com/marital-rape-inda-decriminalized-crime/.
- Nimeshbhai Bharatbhai Desai v. State of Gujarat, AIR 2018 SCC OnLine Guj 732.
- Marital Rape in India: 36 countries where marital rape is not a crime, INDIA TODAY, Mar. 12, 2016, 6.