The Breakthrough Voice 31st January, 2019
When Rape Is A Legal Offence, Then Why Not Marital Rape?.

Trigger Warning: The article has very strong language and references to sexual violence. Please proceed with caution.


In India, while rape is a punishable offence, there is no punishment for marital rape. There is no definition of marital rape in any statute and perchance there won’t also be any punishment for it if we do not raise this issue, starting NOW.

To understand marital rape, we ought to know the contours of rape as defined under the Indian Penal Code (IPC):

A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

For the purposes of this section, “vagina” shall also include labia majora. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, indicates a willingness to participate in the specific sexual act. Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact – be regarded as consenting to the sexual activity. 

Though not defined under any law, marital rape is spousal rape committed by a man upon a woman under the social guise of marriage. It is a non-consensual and unwanted sexual activity that comprises sexual intercourse, anal sex, oral sex or any such act done by a husband to his wife forcefully. Since it is non-consensual, the wife is subjected to mental and physical pressure, intimidation, violence and this abjures her rights and dignity as a human being.

Though not defined under any law, marital rape is spousal rape committed by a man upon a woman under the social guise of marriage.

According to a report published on UN Women, studies show that up to 70 per cent of women have experienced physical and/or sexual violence from an intimate partner in their lifetime. The evidence also shows that women who have experienced physical or sexual intimate partner violence report higher rates of mental health issues and reproductive health issues, as compared to women who have not.

According to an article published on The Revelist, a news publishing site, it reveals that in India, one-third of men have admitted to forcing their wives into a sexual act.  How so? After all, men think that marriage is a license for them to have sex and thus it’s an exemption to the punishable act of rape under Indian law. 

Recently, Member of Parliament Dr Shashi Tharoor introduced a private member’s bill – ‘Women’s Sexual, Reproductive and Menstrual Rights Bill 2018’ in Lok Sabha, seeking to make marital rape a criminal offence. In the aforementioned bill, he has proposed a proviso to Explanation 2 which reads as ‘the women’s ethnicity, religion, caste, education, profession, clothing preference, entertainment preference, social circle, personal opinion, past sexual conduct or any other related grounds shall not be a reason to presume her consent to the sexual activity.’

The law shouldn’t discriminate against women on the basis of their marital status.

The RIT Foundation and the All India Democratic Women’s Association (AIDWA) have also filed a petition in the Delhi High Court in 2015 challenging the constitutionality of Section 375 of the IPC. Through their petition, they are seeking criminalization of marital rape as a punishable offence.

“A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such actions raise a moral boundary that informs society that punishment results if the boundary is transgressed.” – Justice J.B. Pardiwala in 2018 had observed this in his judgment at the Gujarat High Court while hearing a petition filed by a doctor seeking to quash an rape charges filed against him by his wife.

Also Read: Why Is The Safety Of Women Not A National Concern?

It is high time that society learns to respect women as human beings, rather than treating them as commodities. But the inability of Section 375 fails the test of constitutional validity as it falls short of Article 14 (Right to Equality) and Article 21 (Right to Life and Liberty) as mentioned in our Indian Constitution. It is significantly important to address the need of the hour and to criminalize marital rape, so as to safeguard equitable and justifiable human rights of a human being – that of a woman. The law shouldn’t discriminate against women on the basis of their marital status.

References:

UN Women

The Revelist

The Citizen

Hindustan Times


Featured image used for representational purpose only. Source: Newslaundry

 

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