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Criminalizing the very act of ‘marital rape’


 

BANANI DAS CHOWDHURY

“Marriages are made in Heaven!” The very statement is all about a “Belief”. With it, the “Religious” “beliefs” across different “faiths” and “culture”; uphold matrimony in a “Holy” way that it might mean within marriage and all thats between “marital mates”; everything is “holy” and “heavenly”! Let’s now come at the word “Sex”; in our sub-continent, it’s a “taboo” to talk about it openly. “Sex” is regarded as “holy” irrespective of different faith and culture; within the “wedlock”. So, marriage is a “license” to indulge in “sex”; the “holy” way? Regardless of “consent”!

What is “Rape”? It’s a form of sexual assault usually involving sexual intercourse or other forms of sexual penetration perpetrated against a person without that person’s consent. So can “Marital Rape” be defined as a sexual act against a person without him/her consent within the marital bond? Not really! Indian Penal Code (IPC), Section 375 that defines “rape” (just meant for “woman” “rape victims”) in its “exception” clause to the criminal offence of “rape” mentions, “sexual intercourse by a man with his own wife not being under 15years of age is not rape.” So any “married women” above 15years of age, against her “consent” if forced to “sexual intercourse” is “legally” “sex” and not “Rape”!

Rape is a heinous crime be it “marital” or otherwise and when it comes to “sex” in general or “sex” within the wedlock, what’s important is “Consent”; irrespective of gender. The Indian law at present, recognises “marital rape” under two sections of IPC, as a criminal offence, Section 375 exception clause as outlined above and Section 376B, IPC where if a husband has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise ,without her consent. It’s ironical, in India, the age of “consent” as per law is 18years and under the age of 18years, it’s regarded as “child marriage” as per law for a female. But the law recognises “marital rape” not a criminal offence for “wife” “rape” victims of 15 or more years of age.

Its hypocritical also, the same law defines “rape” in general for just “women” and laid though two sections of IPC to criminalise “marital rape” also but just for women. Though “rape” in general and “marital rape” in particular is a “human rights” violation and there are cases occuring of it, irrespective of any gender. Article 14 states equality before law that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of Indian Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.” Universal Declaration of Human Rights in its Article 16 (1) grants equal rights as to marriage, during marriage and at its dissolution.

It’s one’s human rights to live life in dignity. Marriage is a bond of mutual trust and affection. If the “trust” is lost towards the marital partner, when either of gender against one’s consent sexually imposes over another within marital bond; its “plain” “rape”. Manali, a newly married homemaker based in Nagpur, believes, “Anything against the consent is rape, be it within the marital bond; but in most of the cases, its seen that after marriage, its kind of obligation as if to “religiously” get it done, kind of compromise; so laws are the need of the time for marital rape; for each gender.”

Your writer recollects an incident before sometime back; when her friend, Ruchi (name changed) informed about the latter’s friend, being married to a sexually abusive partner, for whom every night since the day one of her marriage, that lady was just a “sex toy”. He continued raping her, everyday, even in the days she “bleeded” and she silently shedding tears just carried on her “social” “married” life. It’s not a single story. And it could be the story of any “human” irrespective of “gender” within the “marital bond”.

Its hightime to criminalise “marital rape” irrespective of gender. A United Nations Population Fund report state that more than two-third of married women in India aged 15-49 have been beaten, raped or forced to provide sex. A National Family Health Survey (NFHS) data showed that vast majority of sexual violence reported by women was within marriage. The Justice Verma Committee in their report to bring in Criminal Law Amendment 2013 recommended that the exception to Section 375 of IPC be removed. The UN’s Committee on the Elimination of Discrimination Against Women’s (CEDAW) also highly recommended India to criminalise “marital rape”.

However, Indian Govt. oflate states that “ It is considered that the concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors including the level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindsets of society to treat marriage as a sacrament.”(Web sources).  It’s the same India which pledges for “Swachata”; but if one cannot clean up the dirt inside; how can one clean up it outside? Morever, India is committed to follow the Sustainable Development Goals 2030 since September 2015; one of the goals (goal5) includes a target (5.2) of eliminating all forms of violence against all women and girls in public and private spheres, including trafficking and sexual and other types of exploitation.

Presently, marital rape is a criminal offence in UK, New Zealand, Canada, Israel, US, Poland, Sweden, Norway, Denmark and the likewise. As per web sources, India is about thirty odd countries including China, Afghanisthan, Pakistan, Bangladesh, Saudi Arabia that doesnot criminalise marital mape.

Why on earth, marriage related to “obligatory” “sex”; it’s all about “mutual” “consent”. The impregnated taboo in our patriarchial society needs to be changed for good.Within the marital bond, it doesnot mean; one doesn’t have the “right” over one’s “own” body; irrespective of gender.

It’s also a debatable issue why only marital law in particular and rape laws in general should just be women centric? Law should be equal for all. Though a rare and or unreported instance marital rape in case of husband being getting raped by wife, it’s not a “myth”. Its time for a change in law for women; make new laws for men, third gender; in short India needs “Human” laws.

Loopholes are in the present law in the plight of the marital rape victims; also irrespective of gender? Agrees a lawyer, on the floors of annonymity, who feels, “It’s the need of the country now to make proper laws in addressing marital rape.” When asked should there be equal laws for other genders as well, the lawyer has this to say, “In male dominated country as ours, as there are rare reported cases of such instances and laws mainly made according to the overal situation prevailing in the country, but its good and debatable to make equal laws as well.”

What are the roadblocks in criminalising “marital rape” in India, irrespective of gender? One thing is “misuse” of many “women” “centric” laws against men as like the Article 498 A. Many reports and instances of number of men committing suicides due to false allegations of misuse of such laws cannot be overlooked. If there is law, there can be misuse of it, that cannot be sidetracked, yet if there are no laws, can crime stop on its own? As silence to injustice is also a crime in its own ditch.

The problem lies in soceity’s think tank too. India, being a land of goddess worship, still finds women fighting hard for equal rights, even within wedlock. In this context, Upasana, working as an assistant professor and by passion a writer, Guwahati, puts her thoughts, “India being a conservative, patriachial and poverty ridden country, women are less likely to speak about marital rape, problems lies in the society’s pschye, so also factors as family repo and other social obligations are also there.”

Another angle is that of “medically” proving “marital rape”. On grounds of confidentiality, a forensic expert has this to say, “Through medical examinations, its difficult to prove it in some cases; it would be better if the condition is reinforced by further advanced medical tests.”

About “marital rape” and the laws, Siddharth, a copy editor in a media house, New Delhi, believes, “Laws can’t just change mindsets; men and women alike need to understand that its about right to a life of dignity, if anyone tries to hack that; hiding would not do good, should fight for one’s right taking legal route; loved ones’ support also crucial.” In addressing concern over male victims and need for equal laws, he adds, “The fact that male too can get maritally raped needs to be realised first in societies and start speaking about it, only then law can do something.”

Marriage is a bond sacred in different faiths across the globe, yet just to keep the sanity of marital bond in “society’s” eyes, any “human” “marital” partner within their “wedlock” cannot silently suffer “violation” of any “human rights.” As marriage is not just about “sex”; “sex” is about “mutual” “consent”; and any sexual act without “consent” is “rape” whether marital or otherwise. It’s the plunge; India should take therefore, to criminalise “marital rape”, irrespective of gender.

 

Disclaimer: The opinions and facts expressed in this article are the personal opinions of the author and  do not reflect the views of THE MILEAGE and this publication  does not assume any responsibility or liability for the same.

 

 

 

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