Marital Rape: Does Marriage Erodes Sexual Independence?
It's time for everyone to view gender as a spectrum rather than as two sets of diametrically opposed values.
Sexual contact with one's spouse without or against the spouse's will is referred to as marital rape.
The idea of marital rape is founded on the archaic, patriarchal, and out-of-date "Doctrine of Coverture"1, which holds that after marriage, a woman loses her right to exist as a separate legal entity and her identity merges with that of her husband.
International recognition:
The World Health Organization (WHO) defines sexual violence as:
Sexual activity, attempts to acquire sexual activity, unwelcome sexual comments or progress, or acts that are offensive to a person, or otherwise directed by a person's coercion independently of the person's relationship. Victims are in all situations, including but not limited to home and work.
Therefore, this definition includes spouse rape within that scope, as it is specifically mentioned "regardless of relationship".
Marital rape is currently being criminalized in all 50 states of the United States. Marital rape is recognized as a criminal offense in the United Kingdom, where the common law was enacted. In the groundbreaking R-R decision, the husband defended the "attempt to convict rape" because marriage constitutes an irreparable consent. Therefore, the husband could not rape his wife. The House of Lords rejected the claim, stating that the relationship between the parties was not important to those convicted of rape. It turns out that if a husband withdraws consent to sexual intercourse, her husband may be convicted of raping or attempting to rape her wife.
In South Asia, neighboring Nepal sets an example of marital rape as a crime. By which marital rape has been criminalized in more than 150 countries.
Indian law provisions:
Section 375 of the Indian Criminal Code condemns rape as a crime and includes all forms of sexual assault with sexual activity that is not based on agreement with women. However,
Exception 1: In the same section is the basis for the non-criminalization of marital rape in India.
Exception 2: Sexual intercourse or sexual activity by a man whose wife is not under the age of 15 is not rape.
Thus, a woman is considered to provide an “implied consent” in perpetuity to enter into a sexual relationship with her husband post marriage.
Discussion for criminalizing marital rape:
- This violates Article 14, which enshrines the right to equality, including gender equality. Moreover, the division by marriage is not an understandable difference, but is based on an outdated patriarchal ideology.
- It violates Article 21 of the Constitution, which regulates the right to life and individual freedom. The basic right of all people in this country is guaranteed by Article 21 to lead a humane and exploit-free life.
- Various committees, such as the JS Berma Commission (establishing the post-Delhi gang rape case), recommend criminalizing spouse rape.
- Various international treaties, such as the United Nations Declaration on the Elimination of Violence Against Women, recommend criminalizing marital rape. 150 countries around the world have already criminalized this vicious crime.
Disputes Against the Criminalization of Marital Rape:
- Criminalizing marriage rape will be an attack on the sacraments of marriage.
- A woman can abuse spouse rape defenses in disagreement with her husband.
- The court does not have the right to intervene in the personal relationship between a man and a woman.
Marital Rape under Article 21:
In the case of Maneka Gandhi vs. Union of India , the Supreme Court has given art 21 a new dimension. The court noted that the right to life is not only a physical right, but also to the extent that it includes the right to life with human dignity.
In addition, the Supreme Court against Francis Corrary. Union Territory of Delhi stated that the right to life includes a decent life and all the rights that come with it.
Therefore, exposure to sexual violence in marital relationships is a direct attack on the dignity of women and thus on the fundamental rights set out in our Constitution.
Marital Rape and Privacy Rights:
KS Puttaswamy (Retd) v. In the Union of India, India's prestigious Supreme Court unanimously endorsed the right to privacy as an important and integral part of Article 21 that constitutes the right to life and personal freedom.
In addition, in Maharashtra v. Madakar Narayan, the Supreme Court ruled that all women have the right to sexual privacy. Even a virtuous woman has the right to privacy and no one can invade her privacy when he wants.
Therefore, marital rape is also a direct attack on women's privacy.
Judicial Pronouncements:
In Independence thought v. The UOI Supreme Court created Exception 2 to Article 375 by interpreting the provisions of the Juvenile Justice Act, the Child Marriage Prohibition Act, the POCSO, and the IPC using the principles of harmonious and proper construction. .. Marriage rape should only be targeted if the woman is 18 years of age or older. The Supreme Court also found that Exception 2 of Section 375 of the IPC was "a frustrating note in the scheme of the Child Protection Act."
Joseph Shine v. The UOI Supreme Court has ruled that women are not men's "objects" or property, and that all women have an inviolable right to sexual autonomy, regardless of their marriage status. She also argued that sexual autonomy is the inviolable core of human dignity.
Recently, Kerala HC has determined that marital rape is a legitimate reason for divorce, as it is in a cruel situation. In addition, Karnataka HC said: Actions are actions. Rape is rape whether committed by a man, a "husband" or a woman "wife".
However, in addition to criminalizing spouse rape, appropriate safeguards must be taken to avoid false and frivolous accusations and prosecutions.
Proposed safety measures to curb abuse:
1. Police should be allowed to conduct a "preliminary investigation" before filing an FIR, as permitted by the Honorary High Court on Marriage Affairs in Lalita Kumari v. Uttar Pradesh.
2. Family welfare commissions may be established in each county where police and judges must refer to all complaints received and should not be arrested prior to such commission reports. The committee must submit the report within 10 days of receipt of the case.
3. The committee should consist of retired civil servants / social workers / volunteer paralegals who need training to deal with such issues.
Conclusion:
From this we can conclude that marriage is a "communion" and a "union of souls", but not a rape license. Marriage as an institution is not weak enough to be affected by the criminalization of marriage rape. Both husbands and wives have a duty to respect each other's rights, especially their right to privacy.
It is time for the legislature to specifically criminalize spouse rape by making the necessary amendments to Article 375, which subordinates women's fundamental rights to sexual autonomy to the whims of their husbands.
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