Marital Rapes in India: An In-depth Analysis

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marital rapes in india and other countries - in depth legal analysis

INTRODUCTION:

As it states that  “Marriage is a contract between two parties that legalizes sexual intercourse” when it’s been stated in this point, it’s clearly understood that when both the parties with the consent comes to the term of agreement of having sexual intercourse, then it’s bound by law. When it’s not done out with consent, it’s turned out to be marital rape. So what’s Marital Rape? Marital Rape is an act of having sexual intercourse without the wife’s consent.

The word Marital Rape would sound weird because there might confusion based on… Why is termed as Marital Rape? Isn’t meant for married couples to do so? The answer to these confusions is YES married couples are bound to share everything in life and sexual intercourse is one part of their married life… BUT “it should be done with the other half’s concern”. If it’s not, then it almost belongs to definitions of “RAPE”. Thereby marriage doesn’t only give the intention only to hook up with the partner whenever the other one wants; it’s meant that both the parties are bound to share happiness and sorrow equally and to lift each other by helping them to achieve his or her goals.

However, laws pertaining to Marital Rape will be widely discussed in the above subtopics. In which when it comes to the aspect of law the terminology “Marital Rape” thereby questions Fundamental rights of the Indian Constitution “Right to Privacy” and “Right to live a dignified life”. 

Marital Rape in India seems to be like that it strongly depends on nonexistent, sometimes interpretative verses both in the Indian Constitution and Indian Penal Code.

INTERPRETATION OF SECTION 375:

According to Section 375 of Indian Penal Code, 1860

It states that;

“A man is said to commit “rape” if he:

  1. Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
  2.  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 do so with him or any other person; or
  3. Manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any of the body of such woman or makes her do so with him or any other person; or
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person. 

So as per the circumstances falling under the section it the two major aspects which comprise the act of Rape is that first if it’s against her will and secondly without her consent its amounts to Rape. Henceforth Section 375 paves the way for the terminology Rape when it’s done to a minor girl. And the Section has spoken about the features of Rape no matter when if the man has sexual intercourse without her consent it’s meant to be known as Rape neither if it’s been occurred to her before nor after marriage.

CONSTITUTIONAL VALIDITY?

The Constitutional law which is involved in marital rape shows the violation of Article 14 and Article 21.

Article 14 speaks about equality before the law. In the aspect of Marital Rape, it’s violating the rule of which equal protection to all women in this scenario as per the article stated it’s been mentioned that equal protection of the law has to be served to all irrespective of their caste, color, creed, etc. But there being traces of violating the features of Article 14, the victim can approach the Court to seek Constitutional remedies against its violation.

Article 21 speaks about the Right to Life and the Right to live with Human Dignity. Right to Life is been stated as an encompassing right in which Marital Rape is a heinous act that is therefore termed as an issue on human rights, and where the aspect “Right to Life” becomes an integral role. As stated the Article guarantees every citizen has his own right to lead a healthy and decent life with no kind of encroachment from the State or any other party.

Laws and measures in other countries:

Marital Rape or Spousal Rape is being criminalized in some states in the United States of America, however, it’s being an act of crime the laws which govern in other countries provide serious punishment when the Act of Marital Rape is done.

The UN recognized that the act of violence against women stands as an obstacle in achieving the status of development. Thus, the United Nations in its 48/104 resolution of 20 December 1993 proclaimed by The General Assembly made a declaration on the “Elimination of Violence against Women” mentioned some rules against the violence against women including marital rape. Thereby laws in the United States of America vary accordingly to the statements, whereas in some states of USA it’s been treated that marital rape as null and void by law, in other states the aspects of Marital Rape has not yet come to light.

In Mississippi, a similar situation exists. A prosecution can come into existence only if the rapist and the victims are being married and are found to have been in the aspect of living together at the time of the incident. However, the laws of the state would exclude a situation where the victim is incapable of controlling their conduct, under drugs and narcotics influence, or any other substance that puts the victim in the state of being numb.

Laws and measures in India:

India is thereby known for its culture and heritage. The government still stands in a stage of confusion of what to accept as evidence of proof when a case of Marital Rape appears before the court of law and criminalizing the act would create in other aspects of which it would turn into harassment of men etc. Henceforth in India, it’s meant to be known as the act of criminalizing marital rape would destabilize the system of marriage.

Apart from all these situations, even now the law against marital rape is sustaining its presence as an unwritten law. In order to maintain such a situation, the courts in India clarify the doubt in the rights of married couples by passing an order of “right to say no for sexual intercourse”. This when viewed on either side effects the other party. This, when violated, becomes a crime, and the punishment for such a crime is still in progress.

When the same situation is viewed in another aspect, it may turn against men as harassment. Criminalizing such an act must not guarantee safety to one gender by grabbing it from another. Thus it is clear from the above that marital rape is still not criminalized in India, but the process is in its development stage. This does not mean that marital rape is not a criminal offense; it just survives as a rule which is not yet codified.

CONCLUSION:

The Indian Government in order to protect women there has been enacted the laws as time passed. But it slows itself in enacting the laws against the horrible crime against the women by their own husband is known as marital rape. India till the present era holds its position at the top in protecting and practicing its culture.

Though the Indian culture holds the position of a married woman under their husband’s will, the same said Indian culture also gives its voice in respecting the dignity of women and their consent in all necessary issues which involve them. Marriage not only involves men but also includes women on the other side to balance the religious ceremony “Marriage”. Thus, we can conclude that India recognizes marital rape as a crime but it refuses to enact a proper law and to codify the crime.

Aashi Shajan Kanjirathingal

Aashi Shajan Kanjirathingal

Aashi is 3rd Year Law student at Bishop Cotton Women's Christian Law College.
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