Roadblocks to the criminalization of Marital Rape

I would like to start by saying, being a married Indian women is not one’s mistake. As everyone knows we are a traditionally bound society. We as girls, are taught on how to respect, how to dress how to run a family and much more. But my question is: are we taught on how to stand for our rights,for our respect and for our opinion to be heard? Undoubtedly, we are definitely a part of silent whispers and are never a protagonist.

Introduction:

Limiting myself to the topic, basically many of married women are subjected to violence much before their marriage. For many,family is just been a “cradle of violence”. It’s so disheartening to know that even though we have well structured legal system, laws fails to recognize the sexual violence happening within the family as a separate crime. This has rarely been prosecuted and on the flip side women are put to suffer in silence.

Is rape –right of the Husband?

Out of all forms of Violence, I would say rape is the gravest of all sexual Violence. Everyone has to soliloquize, does any law says after marriage women's individuality is outdated.  Sec.375 of Indian Penal Code has got a lengthy definition for Rape and the following section. i.e. 376 talks about the punishment for rape. However, it doesn’t declare marital rape as an offence. The definition of rape in other countries is simple, non-consensual and forced vaginal penetration is a rape (most importantly, the defence of being the husband is irrelevant). It’s still dubious as to why IPC exempts a particular class of males.

Few of bare bones, for not criminalizing marital rapes:

1. Legalizing in the name of Indian Culture: as the former CJ himself said and I quote : it should not be a crime as it might result in creating an absolute anarchy in families and there is a need for holding the family values. I saw many views; one of the most stereotyped answers being there is a huge amount of socio – economic and cultural difference between western states and us. In Nimeshbhai Bharatbhai Desai vs State Of Gujarat it was stated that, marital rape violates the trust and confidence within a marriage. Thereby, damaging the institution of marriage.

2. Consent for marriage is an implied consent to sexual relationship: this statement was emphasized by Matthew Hale of England. Our Indian law with reference to rape dates backs to the 18th century, though centuries past only one person made efforts to defend the“Doctrine Of Coverture” (after marriage wife is the property of husband) and that person was Sir William Black stone in in 1753, he said by marriage husband and wife become one person in law which is itself is self justified as the very legal existence of the woman is suspended during the marriage.

3. Misuse of laws by Women: the only point I could partially agree upon is this one.  To support the same they say since women’s are being educated it would be an easy tool for the wife to harass their husband;it might be for revenge too. However, I would say this is contradicting to the 1st point. Justifications made for not able to incorporate westerners law was, India is a country where we have lot of illiteracy,poverty, and lack of financial empowerment for women, etc. Who would come up all the way to court and stand for their rights and win the case.  A holistic thinking has to be made.

We need to stop saying laws are women centric. If not, then I would ask you what Indian law does not have a loop hole? The point I want to make is that, we have courts, they give emphasises on evidence than mere words. We have Art.14 talking about the equality and Art.21 on right to life and personal liberty. Out of which exception under Sec.375 of IPC dominates,leaving women to suffer in silence. I conclude, by stating the only remedy left for a married women who is raped is to claim judicial separation under the Domestic Violence Act, 2005.

‍