International status
150 countries of the world have criminalised marital rape. Until the end of the 20th century, it was largely considered that marriage granted man the right to have intercourse with his woman whenever he wanted but with the modernisation of society, this was questioned. Thinkers around the globe initiated the anti-rape movement to help women gain autonomy over their bodies. This was incorporated in the world constitution in 3 main ways,
- Some countries have specific penal codes for connubial rape like the US, Russia, Australia
- Some nations treat rape by the partner as they would for a regular person like the UK and Malaysia and the court decides the discipline.
- Also, there are those countries that have primitive laws that don't count a husband as a rapist if he forces himself on people like India, Pakistan, China, Saudi Arabia and Myanmar.
The prevailing (ill) sense for not criminalising connubial rape given by countries is that the purpose of marriage is the confirmation of a bond between a couple to reproduce for which sex is essential. The word rape (Latin rapere) means to steal or to seize but during the medieval period, it was inferred for women. Force is traumatic to a woman irrespective of the identity of the perpetrator and for a healthy society, criminalising any form of such a heinous act is essential.
No means no, to those who are willing to hear
India has had an intriguing history of court rulings in case of connubial rape. In the Saroj Rani vs Sudarshan Kumar Chadha case, the definition of marital rights mentioned in Section 9 of the Hindu Marriage Act was upheld. Before it was ruled violative of the abecedarian right to sequestration in the T Saritha case. The Chhattisgarh High Court said that "Sexual intercourse or any sexual act by hubby with his woman would not constitute rape indeed if it was by force against her want." This was about a complaint in which the woman claimed that her husband had "unnatural sex" with her. The court made its decision on the exception laid down in Section 375 of the Indian Penal Court. It states that any act of sexual intercourse between a man and his woman handed the woman is an adult won't amount to rape, therefore disregarding the conception of will and concurrence. The Union Government in an affidavit to the Delhi High Court said that coitus within marriage can not be included as a ground for women to file a divorce. It argued that criminalising connubial rape would destabilise the sacred institution of marriage as if a marriage in which a woman has no say-so is worth saving. Employing this graceless explanation to hide this patriarchal mindset is cruel and medieval.
The insincerity of Section 376
Section 375 reflects the deep-confirmed misogyny in Indian society, as a result of times of demarcation, incorporation, and subjection of women. This draconian law violates the guarantees of equal protection, freedom of expression, and right to life and liberty of Articles 14 and 21.
Composition 14 is the given right of equivalency which means that demarcation on any grounds is illegal. Section 375 and 376 viewed together are just a step lower than an oxymoron. This is so because a wedded woman can seek justice if she's ravished, under Section 375 but if the robber is her spouse also Section 376, kills her right to equivalency. This law differentiates between the felonious, varying between a foreigner and a consort.
Composition 21 subventions every Indian citizen the right to life and particular liberty. This right has been interpreted and defined by courts in colorful cases in the forms of rights similar as the right to fleshly tone- determination, the right to sexual sequestration, and the right to health. Section 375 violates this composition as rape by a person one trusts and who's supposed to nurture, along with physical damage causes internal scars to a woman.
In 2018, Supreme Court explicitly said that a woman isn't a chattel or property of men and so every woman has sexual autonomy, her connubial status is inconsequential in this debate. Section 376 should be declared ultra vires as it's antithetical to the heart and soul of the Indian Constitution.
The epitome of inferred concurrence
India is one of the 36 countries that haven't yet criminalised connubial rape. It signifies the backward opinion that women are bare parcels of their misters, to be used for their convenience. The laws should keep up with the changing ethics of society and so connubial rape should be criminalised. However, botheration, voyeurism, and forced disrobing, If a hubby can be charged for sexual importunity. Women can file a charge distance of sexual assault against their misters under section 498A. Protection of Women From Domestic Violence Act 2005, is the current reprieve for women against forced intercourse by their consorts. The rising rates of connubial rape indicate the fact that these measures are ineffective. The doctrine of blanket propagated by Blackpool doesn't apply in this environment, the non-criminalised nature of connubial rape in India emanates from the colonisation process. We must remove Section 376, just like we scrapped Composition 377, again of British origin for a more liberal and progressive society. The British government realised their idiocy and criminalised connubial rape back in 1991. Isn't it high time we do the same? Force is rape, and no marker like marriage can ever justify it.