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Marital Rape is a conflict between the law and the victim of marital rape in Indian society since the independence of India in 1947. There are objections related to the exception of marital rape from the offense of rape under section 375 of the Indian Penal Code (IPC), 1860. Women are sexually harassed by their husbands & when they come to court to get justice, the law stated that marital rape is not an offense in the eye of the law. There are more than 100 countries in the world that criminalized marital rape, prosecute husbands on the ground of marital rape with exceptional clauses & establish statutes for safeguarding married women from the inhuman activities of their husbands.

INTRODUCTION:

Marital Rape is forced or non-consensual sexual intercourse between Husband & wife where a married woman does not consent to the sexual intercourse. In a patriarchal society, a married woman was believed to be her husband’s property. A married woman depends upon her husband & the husband is the sole authority or guardian of a woman after marriage. A marriage between a man & a woman that merged the identity of two individuals into one identity is the reason behind the non-criminalized nature of Marital Rape. It was considered as the woman giving implied consent to her husband for her bodily autonomy under the doctrine of Coverture .

It is also believed that the allegation of marital rape & criminalization of marital rape shall have destroyed the institution of marriage because a man who is accused of marital rape will not accept the accuser as his wife. Justice Verma's committee which was appointed in the Delhi Rape case also recommended that marital rape should be included in the offense of rape under section 375 of the Indian Penal Code, 1860.

Marital rape is not an offense that has its historic significance because it is pronounced by Chief Justice Sir Mathew Hale in 17th Century England. Chief Justice Mathew held that a husband is not guilty of marital rape which does not amount to a criminal offense as a woman gives implied consent to her husband for the sexual intercourse & a wife shall not be entitled to sue her husband for the offense of marital rape. The interpretation of Chief Justice Mathew’s verdict is that a woman lost not only the fundamental right to life & personal liberty but also the right to equality after marriage. She is not entitled to take decisions related to her bodily autonomy & might be treated as a slave by her husband as per the verdict of Chief Justice Mathew.

LEGAL ASPECT:

Rape is one of the heinous crimes committed against women. The offense of rape was codified in Section 375 of the Indian Penal Code (IPC), 1860. According to section 375 of IPC, 1860, rape is sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or at a time when she was intoxicated or duped or is of unsound state of mental health where she is unable to determine the consequence of her actions & in any case if she is under 18 years of age. In case a woman gave her consent it should not be given under any threat, putting a woman into fear of death or the death of someone else, intoxicating her to obtain consent for sexual intercourse from a woman, pretending to be someone else in front of women to obtain consent for the sexual intercourse or use of any other deceitful means for the sole purpose of obtaining consent from a woman shall not be considered as valid consent. A man is said to commit rape if he penetrates any foreign object into a women’s body part, penetrates his penis to any extent into the vagina, mouth, urethra, or anus of a woman, or forces her to do with another person, manipulate any body part of a woman.

When it comes to a married woman above the age of 15 who is subject to sexual intercourse by her husband without valid consent, it is termed as exception 2 in Section 375 of the Indian Penal Code, 1860 & which immunizes the act of marital rape from prosecution. The exception of marital rape from the offense of rape defeats the purpose of section 375 of the Indian Penal Code which aims to protect women & ensure their safety from the criminals who attempt to commit such heinous crimes with against women. Exception 2 in section 375 of the Indian Penal Code is disparaging to married women because it makes it difficult for them to escape from such abusive conditions at home & they have to bear inhuman treatment given to them by their so-called soul mate.

Marital rape is not a criminal offense in violation of article 21 of the Indian Constitution, which provides citizens and individuals from foreign nations the right to life with personal liberty. Right to life with personal liberty includes rights to health, privacy, dignity, safe living conditions & secure environment for living, among others. It is not a matter of fact, either man or woman article 21 of the Indian Constitution allows them to live with personal freedom without any threat of violence or harassment by anyone.

It is also against Article 14 of the Indian Constitution by violating the right to equality among the people. A married woman subjected to cruelty by her husband inside four walls of her house concludes that a man considered his wife inferior to him & thinks that he can treat her inhumanly as he is his wife’s guardian. Article 14 of the Indian Constitution is a Fundamental right that is subjected to the Basic structure of the Indian Constitution & its violation leads to invoking article 32 of the Indian Constitution which provides remedies from the custodian of the Constitution, the Supreme Court of India.

DECRIMINALISATION OF MARITAL RAPE & INDIAN SOCIETY:

India is a subcontinent in the Asian continent that was ruled by the Mughals from 1526 to 1761 and then ruled by the British between 1858 and 1947. In India, Marriage is the purest relation between a man & woman which solemnizes two individuals' wedlock for the rest of their lives. There are different kinds of ceremonies to solemnize & celebrate marriage in different religions. Earlier there was no concept of divorce in the marriage system but as we evolved & conflict between married couples arises to break the deadlock the law comes with the concept of divorce where married couples depart their ways amicably with mutual understanding between them. Apart from divorce, there is no means for legal separation in a troubled marriage between a man & woman.

In a valid Marriage, it is believed that both husband & wife are living happily & support them in the thick & thin situations of life. No one supposed that a man will treat his wife in such a cruel manner that she got traumatized by the non-consensual sexual intercourse in such a manner that sometimes she ends up her life because she found it difficult to escape from the situation. In case she managed to gather courage and complaint against such treatment given by her husband to their elders or family members, then she got a firm response from the family. She was suggested to be quiet otherwise her marriage will get into trouble & she has to face certain consequences which trouble her for the rest of her life. Victim of marital rape keeps on suffering because society prefers to safeguard a marriage where a man sexually assaults his wife over a woman who is aggrieved by cruelty by her husband.

JUDGMENTS RELATED TO MARITAL RAPE:

India evolved in the past few years & we witnessed a revolution in the laws related to crimes against women. In the case of State of Karnataka V. Krishnappa , the Supreme Court held that sexual violence apart from the dehumanizing act is an unlawful intrusion of the right to privacy & sanctity of women, In the same judgment Supreme Court held that non-consensual sexual intercourse amounts to physical & sexual violence. In the case of the Suchita Srivastava V. Chandigarh Administration , Supreme Court held that the right to make choices related to sexual activities is integrated with the right to life & personal liberty under article 21 of the Indian Constitution. In the case of Justice K.S. Puttaswamy V. Union of India , the Supreme Court of India held that the right to privacy is a fundamental right for all citizens under article 21 of the Indian Constitution which also includes the right to decide concerning procreation & intimate relations.

In most of the judgments, the Supreme Court of India recognized the right to refrain from sexual activities for all women irrespective of marital status. It was also held that forced sexual cohabitation is a violation of fundamental rights under article 21 of the Indian Constitution. In the case of the Chairman Railway Board V. Chandrimadas , Supreme Court observed that rape is not a crime against a woman but a crime against society. In this manner, the marital exemption in section 375 of the Indian Penal Code is a violation of the wife's entitlement to live with human dignity. Marital rape not only destruct a woman physically but also damages a woman's mental soundness for a long time. A woman who has gone through a rape would not like to be in public places, she got scared of the crowd in public places, doesn’t want to talk to anyone, always try to escape from reality & urge to return to her life that she lost within few hours without any fault.

CONFLICTING ARGUMENTS:

A man is liable for the offense of marital rape if the woman who is sexually assaulted by her husband is under the age of 15 years but contrary to the Child Marriage Restraint Act, 1978 which aims to abolish child marriage & prescribed the legal age of a female is 18 years or above. The Government of India proposed a bill to raise the legal age of marriage of women from 18 to 21 years. The clause related to age in the marital rape & Child Marriage Restraint Act seems to be contrary which defeats the purpose of protecting the child's rights that were violated by the Child Marriage.

CONCLUSION:

Marital rape causes irrevocable damage to women that destroy their whole life, least we can do is punish those who are responsible for destroying the life of an innocent woman. We shall provide justice to the victim by sentencing the offender to send a message to the public that conviction of heinous crimes shall be punished with the worst punishment that you could think of & there is no scope of mercy in the court of law for such crimes. We need to provide stringent laws for the protection of women & violation of these laws shall be subject to immediate prosecution against the offender for the offense of crimes against women.

Marital rape shall not be an exception in section 375 of the Indian Penal Code, 1860. Marital Rape shall be treated as an offense of rape with stringent penalties for committing such heinous crimes. It is high time to change society’s perspective on marital rape. It is important to save a woman's life in a troubled marriage. We need to spread more awareness about marital rape & support those who want to file a complaint against marital rape which helps other women who are threatened & discouraged by the people in society. Police administration is required to investigate the cases related to marital rape to avoid prosecuting someone innocent in the criminal case. Appointment of a female medical officer for medical procedure or intervention of a marital rape victim.

There are more than 100 countries that criminalized Marital rape & it is high time for India to take the call to criminalize the offense of Marital rape which also assists married women who are subject to non-consensual sexual intercourse in the name of implied consent that was never given to anyone at any point of time.

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