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MARITAL RAPE: A THOUGHTFUL CRIME ASSESSMENT

INTRODUCTION:


Marital Rape in India is one of the most underrated topics to be discussed. The existing laws also don’t give much concern to it. If we talk about their execution, it always differs. The laws in India, related to some serious offences like rape, sexual abuse and assault, are more commonly heard offences. Some lawpersons believe in criminalisation of such act while the others are of opinion that it is a private matter to be discussed between the husband and the wife. However, the same does not happen in the case of Marital Rape. Therefore, it is seen as an underrated and unsolved topic, most of the times.

If we look at the broader picture, this offence can also be called as an act of Domestic Violence. The main problem is in the mindset of a society like ours which is male dominated and sees itself capable enough to take over full control on the body, thoughts, ideas and personality of a married woman. With this, her basic constitutional rights like Right to Privacy and Right to live a dignified life, also gets infringed along with other provisions of various statutes.


STATUTES AND PROVISIONS:


· In India, rape laws are against to what Article 14 and 21 of the Constitution upholds. The Indian Constitution in Article 21 states the Right to Life and Right to Live with Human Dignity. It also involves Right to Privacy of such woman. In the case of Vishaka vs. State of Rajasthan[1], the Apex Court held that having Right to Privacy is a woman’s personal right. However, the ground reality check doesn’t justify the same statement. Although law protects several rights of a woman, the mentality of our patriarchal society always looks beyond the law protecting women. Men belonging to such society kind of take it as an unsuccessful, tragic, unfavourable and frightful incapacity that they can’t control, overpower and show manhood to their own wives, who apparently possesses every legal protection in her personality. By this, a husband‘s ego inside him burns the most from head to toe.

· The Indian Penal Code, 1860 also comes as a saviour to such misdeeds against a woman, specifically setting in the provisions like: Section 319, 320, 321, 322, 351 and 375.

However, the exception 2 of Section 375 is not countable in marital rape zone as it acquits a husband from any crime if he commits rape against his wife. It is evident in many cases, the wife dies due to excessive bleeding as an outcome of forced intercourse yet the husband was not convicted for rape, but under Section 321 of the Code for “causing grievous hurt to her by doing a rash and negligent act dangerous to life.” You see, the law in our country has always been inclined to ensure woman’s safety and protection but the law can’t invade in a woman’s house and grant protection to her from her own husband. This section exhibits injustice caused to a woman who is, after all, seemed to be secured with the virtue of different statutes by all the possible means.


D Finkelhor and K Yllo’s Criminal Justice Policy Review (1987) on Marital Rape in ‘License To Rape: Sexual Abuse Of Wives’ where they emphasised, “If a stranger rapes any woman, the latter isn’t much affected since neither she knows him nor he knows her. The rapist won’t be affecting her personally. But when a husband does the same, it becomes personal since the man knows his wife and her feelings. However, it’s always been a known fact that husband and his wife know each other intimately. Then also if a husband rapes his own wife, it’s more than just an abuse. It’s a kind of personal abuse.”

There happens to be many reasons for this offence where husband considers his wife as his “utterly personal movable property.” Especially in a country like ours, husband thinks like he has got some kind of license to control his woman, her body, emotions, personality, dreams and the foremost “her consent.” Apparently all over, he never handles himself as a partner to her, a gently responsible better half to her. Such toxic and abusive husbands don’t even consider their wives as a human, but just a thing to be placed in his bedroom and use whenever he desires.

Out of many such reasons of such category of rape, some of the major ones are as follows:

  • Lack of financial empowerment in majority of victims.

  • Poverty.

  • The mindset of the society.

  • Lack of literacy in our country.


DURING COVID-19 LOCKDOWN:


For our country, the World Health Organization has labelled the rising cases of same offence as a ‘silent pandemic’ in process. A research by the UN Population Fund describes that more than two-thirds of women in India, between the age group of 15 to late 40's, have been raped, assaulted or coerced to provide marital sex. The pandemic has made this data even more unpleasant. Cases of marital rape/domestic violence have risen up tremendously during the lockdown enforced in India, since March 2020. It is observed that during the pandemic when people are enclosed in same house, husbands often force themselves upon their respective wives against their will, and upon protest would beat them up, use vulgar terms and continue doing so, sometimes in front of their grown up children.

1,477 complaints of same offence were made by Indian women in between March 25 and May 31’ 2020. The National Commission for Women (NCW) singly registered 587 complaints during the early three weeks of the lockdown. This was a vertical rise from 396 complaints collected in the duration of past 25 days between February 27 and March 22. Notably, more complaints than those altogether in last 10 years were collected during the three months of lockdown. Maximum cases were reported from the states of Bihar, UP, Haryana and Rajasthan.[2]

However, it was also observed that 77 percent of the women did not even mention the incident to anyone, and 86 percent of such victims who dealt with violence never looked up any aid. The global epidemic had put all kinds of limitations on women to get through for any form of aid from all around. It’s only when suffering becomes unbearable to them, they seek help or come out to respond. It is during the lockdown period when everybody was instructed to stay indoors by the Government due to covid infection; the amount of abuse done by husband to their wives has reportedly hiked.

Notably, rape with a married and unmarried woman is same. They both face an unlawful sexual intercourse, without their consent, a forced or compelled structure on them and most importantly, a threat or danger to their life. Ultimately if both of the identities of a female personify a common word “woman” and all the same elements in commencement of rape, why does the rapist in only one offence, i.e., in raping an unmarried woman, gets penalised? Why a husband performing the offence on his own wife, with all the same elements doesn’t get penalised? And questions like these lands another debrief question: Does the situation in Indian society always been such, from the ages? The only answer is yes!

Not to bombshell the reader but it has always been openly performed, without much interference of the not-so-properly-made laws and justice done by Kings who now represent Indian history. At early times also, a man used to marry a woman so that he can find himself privileged of having a legal intercourse with or against her will. Marital Rape has never been easy and good-governed approach for any woman who has seen a physical, emotional and mental demolition of herself. Even in the gradual shift of improvised laws and implementation of them in our country, Marital Rape has a secured place in the list of topmost crimes happening at present. It doesn’t just violate the right to live a life with human dignity[3] but is also an infringement of basic human rights of a Marital Rape survivor wife.


CONCLUSION:


Most important injustice that happens to a Marital Rape survivor is that despite all the action taken for securing her rights, the law doesn’t penalise a man who has committed a crime against her body, soul, self-confidence, personality, thoughts and all of the above, against her identity as an individual human being. The wrath or rage of abusive violence at home must light a wife’s conscience in analysing a need to say STOP and fight back! With a hope that this unwanted stigma changes someday and the writer’s powerful words ignites a reluctant Marital Rape survivor wife, who’s hiding behind patriarchy and the bars of domestic responsibility to come forward and recognise her own self. She needs to sense and perceive that she possesses not only a right to survive, but, live a life: a dignified life!


REFERENCE

  1. Vishaka vs. State of Rajasthan, 6, 3011, 241 (SC: 1997).

  2. Kanishk, Marital Rape: How Bad is the Problem in India and Why Coronavirus-led Lockdown Made it Worse, yahoo! news (Dec. 07, 2020, 8:30 AM), https://in.news.yahoo.com/marital-rape-how-bad-is-the-problem-in-india-and-why-coronavirusled-lockdown-made-it-worse-030058552.html

  3. Shreeparna Goswami, Should Marital Rape be an Offence in India?, H.Y.D.R.A., (date and time not available), https://hydratrust.in/should-marital-rape-be-an-offence-in-india/

Author Ananya Palwa

Law Student from Banasthali Vidyapith,

Jaipur, India.




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