1. Introduction:

The legality of marital rape in India contradicts the definition of consent given by the Indian Penal Code itself. By marginalizing the married women and immunizing the act of sexual violence against them under the institution of marriage, the severe injustice is official among the victims of marital rape through the exception clause (2) of section 375. The clause draws a legal line of discrimination between married and unmarried women from providing equal protection for the same form of sexual violence. The clause itself breaches the fundamental rights of Articles 14 and 21, the right to equality before the law and the right to protection of life and personal liberty respectively, under the constitution. Just as following the traffic rules is one of the legal activities in India, marital rape comes under the same domain. India in the twenty-first century legalizing marital rape is a setback in the progress of espousing gender equality. Social change is an inevitable phenomenon, and it is a phenomenon which is a vital part of being a progressive community. A nation must embrace the social, political, economic, and psychological changes among its citizens to achieve development and growth. The seemingly sanctimonious institution cannot be considered sacred if it violates the sanctity of women’s rights. Needless to say, such a legal decision promotes patriarchy and discourages women from exercising their rights fundamentally. Criminalizing marital rape will be the way forward to overcome this challenge.

Source: Pexels

2. Domestic violence vs. Sexual violence:

Domestic violence can be physical or psychological, or it can be both. Sexual violence comes under the domain of domestic violence but sexual violence is not purely domestic violence. If there exists a law that allows unmarried women to file a complaint against their sexual assault perpetrators, the same opportunity must be open to those married women who faced the consequences of marital rape during their marriage. Whether married or not, the detrimental effect of rape remains unchanged. In a study conducted by the World Health Organization, the factors associated with sexual violence include ideologies of male sexual entitlement and weak legal sanctions for sexual violence. In which, the latter is the main case for encouraging marital rape in India. The treatment of sexual abuse solely as a domestic violence, in case of married women, deprived the opportunity to identify the assault as sexual. The Indian National Family Health Survey of 2015-16 shows eighty-three percent of ever-married women between 15-49 years of age reported sexual violence perpetrated by their present husbands while only seven percent reporting their former spouse. In addition, the statistics covered only a fraction (601,509 households) of the population which leaves room for the possibility of numerous unreported assaults. Protecting the offence of marital rape protects the practice of sexual violence and immunizes the assaulter. Simultaneously, it clearly violates women’s right to equality, dignity and life. As written in the Article 13(2), the Indian Constitution declares that the State will not make any law that takes away or abridges the fundamental rights and if done so, it would be void till the extent of contravention. When in case of marital rape, it is the void of achieving the benefits and rights of Article 14 for these women.

3. Approaches and Results:

After conducting a secondary research which includes browsing news articles concerning marital rapes, technical definitions, and drawing data from multiple survey results, it was found that sexual violence resulted through the lack of endorsement with regard to social, legal and economic aspects for the married women. Therefore, improving one of these aspects will ameliorate the situation.

Source: Pexels

4. Conclusion:

With marital rape being legal, the judicial system is explicitly neglecting the equal rights of married women from coming forward as a rape victim against their spouses. This allows married women to submit to non-consented sex from their intimate partners as it is legal under the Indian jurisdiction. Our justice system has been evolving with the passage of time, so the system must change with the changing tides of the social and political affairs. The exception of marital rape being a criminal offence only surfaced to the national legal front as a pre-historic practice against the fast-moving society. The greater collective emphasis on the India’s sanctity of marriage is ruling out the basic rights of women in this country where it disregards the consent of a married woman. What constitutes the practice of cultural sanctity should never achieve its legality by risking any gender’s fundamental right. If positive progress in the field of humanity cannot be achieved with the advancing technological aspects of the nation, the country is cowering in the face of extreme traditional norms by keeping up with the facade of avant-garde in the global front. As an entity that prioritizes the technicality of every issue, the Indian Supreme Court consciously ignored a criminal offense as huge as rape among the married women. The lapse of time between the decisions of the judicial system to the point of criminalizing the practice is encouraging more sexual assault to take place.

5. Recommendations:

  • Separating sexual violence from domestic violence and legally recognizing the offences separately for the married women will be the beginning journey of long overdue justice for the victims of marital rape.
  • Since independence, India has witnessed its progress in numerous fields and currently being the 6th largest economy in the world. From sharing multiple platforms globally, the nation must join the other 150 countries in criminalizing marital rape. The sanctity of marriage institution should prioritize the concept of human rights, first and foremost. It is a legal duty for the system to ensure it against any form of infringement otherwise, marital rape and domestic abuse will continue contributing to the nation’s crime rate annually.
  • On the other hand, as extraneous as it might be, criminalizing marital rape might also help in positively tipping the scale of the World Happiness Index ranking for the country.

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References:

  • International Institute for Population Sciences (IIPS) and ICF. 2017. National Family Health Survey (NFHS-4), 2015-16: India. Mumbai: IIPS. https://dhsprogram.com/pubs/pdf/FR339/FR339.pdf
  • The Constitution of India, 1950, Art. 14
  • The Constitution of India, 1950, Art. 21
  • The Constitution of India, 1950, Art. 13(2)
  • Mira Patel (3rd February, 2022). A history of movement to criminalize marital rape around the world. Retrieved from indianexpress.com

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