Marital rape – A lawmakers dilemma

Marital is the sexual intercourse with one’s spouse without his/her consent, usually by the use of force. A growing problem in today’s contemporary times with women having more liberty to voice their concerns, it’s a yet to be criminalised. The issue of marital has been widely debated, some being progressive giving importance to women’s consent and the others upholding years of culture and tradition. This orthodox view stems from the belief that marriage comes with certain obligations which includes sexual intercourse and the duty of a wife to take care of her husband, satisfying all his needs.

Marital rape - A lawmakers dilemma

The cause of this crime can date back to the inferior position women held in the society, being treated as chattel of the men in her life corresponding to her father and later her husband. Having the wife in his ‘possession’ the husband seemingly did whatever he wanted, the wife’s consent holding no significance.The  concept of  conjugal rights  to engage in sexual intercourse was seen in English common law, North America and the British commonwealth, where was treated as an impossibility. This was illustrated by Sir Mathew Hale , in his legal treatise  History of the Pleas of the Crown where he wrote that “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”. These views were challenged in most Western countries during the second wave of feminism  from 1960s-1970s leading to an acknowledgment of the woman’s right to dignity.

In India marital rape exists de facto and not de jure. Only two groups of married women are covered by the rape legislation — those separated from their husbands and those being under 15 years of age. In Independent thought V Union Of India, a registered society working for the welfare of child rights challenged section 2 of 375 of the which stated that sexual intercourse by a man with his own wife not being under the age of 15 was not rape. There were certain discrepancies within that and it ended up being contradictory to section 3 of POCSO act. While the rape of a girl below 12 years of age may be punished for a period of 10 years or more, the rape of a 15 year old girl who is married gets lesser sentence.

According to health research funding.org- 30% of all adult rape cases and sexual assaults were committed by husbands, common-law partners, or boyfriends and upto 30% of women asking for maintenance in a divorce have reported at least one forced sexual assault by the partner. There has also proven to be a 70% increase in the chance of marital rape when there is domestic violence in a relationship. Further, 35% of women who experienced marital rape were also subjected to some form of physical abuse and 69% of women are raped more than once in their marriage. Women with religious backgrounds or those who enter marriage with little sexual knowledge are more likely to believe that forced sex inside of a marriage is normal and not report it as rape. Despite the myth that rape by one’s spouse is insignificant and all are a part of the matrimonial obligations, research indicates that marital rape often causes severe consequences. Women go through physical and psychological trauma including infections, bruises, bleeding, depression, flashbacks, various disorders and a diminished social confidence just to name a few.

Despite being a member state of the UN and its conventions, India takes its own stance in this matter. Arguing that criminalizing marital rape would be at odds with years of tradition, leaders including Maneka Gandhi( union minister for women and child development) who previously backed this reversed her position for the worse.

The ex Chief Justice of India, Dipak Mishra against the criminalising of marital rape talked about how it ‘insults the institution of marriage and create absolute anarchy in families’. It being difficult to prove in court, the risk of fraudulent cases coming up against the husbands, being uncommon and it uprooting the whole basis of society causing imbalance were a few arguments stated to prevent the motion from passing.

This was also rejected as a  ground for divorce by the high court recently and created quite a stir. Presently, marital rape is not a ground for divorce under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 or the Muslim Personal Law Application Act, 1937. Despite various other countries like the United Kingdom, Canada, South Africa and United states having criminalized marital rape, India continues its regressive ways and dismisses the whole issue altogether.

Rape is rape, be it whatever kind and is a clear violation of articles 21 stating every human having the right to dignity and article 14 stating equality before law and equal protection of the law. While there is no concrete legislation in place, marital rape is still a crime and will only get worse if nothing is implemented at the quickest. Though a sensitive task in India regarding the personal and religious laws playing a vital role in the society, marital rape needs to be eliminated. Women at whatever age deserve to be treated with dignity and respect upholding their consent with utmost importance.

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