MARITAL RAPE: NEED FOR CRIMINALISATION

Thomas Reuters, 2020

In the chapter “Criminalizing Marital Rape in India” , authors have examined the issue of criminalisation of marital rape by evaluating various policy considerations which are identified as the dignity of an individual, sexual autonomy, institution of marriage and undesirable criminalization. The essay has also made an attempt to determine the judicial attitude in interpreting existing rape laws. Based on judicial attitude, policy considerations, existing legislative framework to deal with rape offences and definition of marital rape given by Justice Pardiwala it is suggested that the force rape, non-consensual unnatural offences etc. can be easily criminalised. However, as far as non-consensual sex is concerned it is desirable to criminalize the same.

MARITAL RAPE: -NEED FOR ITS CRIMINALISATION IN INDIA, 2020

Matrimony is a sacred bond that ties two people, and two families, together. But if this matrimony is without consent or the people involved in the marriage are not content, then it can turn sour. Our society is inclined towards a patriarchal system from the ancient times of hunting and gathering. So, it comes as a natural nature for men to display emotions of dominance. Looking around the globe, law and order has a huge role in prescribing and limiting standards for human conduct. Under the Indian Penal Code, 1860, the laws have been made and appropriate punishment for the same has been provided. But what most of the people fail to comprehend is that these laws were made by the British a long time ago. At that time Marital Rape was not considered a crime which can be one of the reasons why it was exempted under the penal laws. This research paper substantiates and focuses solely on evolution of the rights for women; mainly the effects of Marital Rape; and the reasons how it is in violation of the Constitution of India.

International Journal For Multidisciplinary Research, 2023

Marital rape is an evil practice in India. Domestic violence is not less or part of violence. Usually, victims of domestic violence are married women. The biggest threat to gender justice in India. Domestic violence has been around for centuries, but in the past women were not considered independent legal entities that could speak out or feel that what happened to them was wrong. Since then, domestic violence is not considered rape by Indian society. This is rarely resisted in society for various reasons. Domestic violence refers to violence perpetrated by the victim's partner. In the past, girls always thought that what their husband did was right, so they didn't think it was wrong or unfair. Indian lawmakers have been silent on the issue so far. The legislature of India has been given the most difficult task of enacting laws under the constitution of India for the safety, security and development of the country. But the legislature is not very interested in eradicating the crime of domestic violence from the community. So, in order to know more about marriage, let's learn its meaning and historical background and how the laws of different countries treat the human rights of marriage.

This paper discusses whether criminalization of marital rape is the most suitable solution for protection of married women in India. Legally, Indian women are divided into three categories based on their marital status-single or divorced, separated and married1. While the first two categories are protected from rape, the law creates an exception for the last category. Legal protection from marital rape is only accorded to married women below 18 years of age. I intend to draw the attention of the reader to two points with respect to the legal immunity awarded to the husbands-One, the absence of recognition of the possibility of non-consensual sexual intercourse by a man with his wife who is above 18 years of age and second, the reluctance of the judiciary and the legislature to interfere in the holy institution of marriage. Criminalization of marital rape in India is perceived by many to result in criminal reform. In the backdrop of this, I argue that criminalization of marital rape will not be the " magical solution " , instead, I believe that it will create more problems than solutions for women in India, bearing in mind the patriarchal society that we live in, the attitudes of the judges towards the institution of marriage and the " impossibility of proving marital rape. " 2 While borrowing the idea from Flavia Agnes, I propose that a better way to achieve criminal reform is to include rape within the framework of domestic violence. This paper is divided into three parts. The first part discusses the current position of law on the issue of marital rape. The second part discusses the international obligations and the JS Verma Committee Report which has recommended criminalization of marital rape in India. The third part explores the idea of including marital rape within the framework of domestic violence, as suggested by Flavia Agnes and analyses the viability of criminalization of marital rape. Rape is defined as any non-consensual act of penetration of a " woman's vagina/urethra/anus/ mouth by the penis/mouth/objects/any other body part manipulated by a man or irrespective of the consent, when she is below 18 years of age " 3 in Section 375 of the Indian Penal Code after the 2013 amendment. Exception 2 of this section, which is often referred to as the marital rape exception, states that sexual intercourse/ sexual acts by a man with his wife is not rape if the wife is above fifteen years of age. On October 11, 2017, the Supreme Court held this exception as unconstitutional and stated that " sexual intercourse with a girl child under the age of 18 irrespective of the marital status would amount to rape " 4 but refrained from commenting on the legal status non-consensual sexual intercourse between a man and his wife who is above 18 years of age. Hence, the law, as it stands today, does not accord any protection from marital rape to women above 18 years of age. There are various international law obligations that support criminalisation of marital rape. This support can be located in international laws that are both general and specific in nature. The international laws that are general in nature provide/establish the necessity to uphold right to life, right to equal protection before law and right to human dignity etc.5 and the laws that are specific in nature emphasise the duty of the state to protect women against any form 1 Karuna Nundy; https://thewire.in/159074/marital-rape-exception-high-court/ 2 Saptarshi Mandal (2014) The Impossibility of Marital Rape, Australian Feminist Studies, 29:81, 255-272,

2015

Historically, the term rape is derived from ?raptus? which implies violent theft, applied to both property and person. Thereby, a woman?s abduction or sexual molestation, merely used to be the theft of a woman against the consent of her guardian or those with legal power over her. The injury was, therefore, against her father or husband, women being wholly owned subsidiaries. Marriages in India are considered as a sacrament. Matrimony binds the wife to her husband in such a way that she is duty-bound to submit to his wishes. Marital rape refers to intercourse that a husband has with his wife against her will. In India, this concept is rejected by the law, because it is believed that a woman who has married a man has impliedly consented to having sexual relations with him. Unless a woman is below the age of 15, she cannot be ?raped? by her husband. As a consequence, it is not a crime to force your wife into sexual intimacy. Statistics indicate that marital rape and related offences (...

The act of one spouse having non-consensual sexual relations with another, known as marital rape, has long been a prevalent yet underappreciated problem in Indian society. The prohibition of marital rape is still a controversial and unresolved issue in the Indian legal system, notwithstanding recent progressive legislative developments. This essay critically analyses the pressing necessity for marital rape to be made a crime in India, taking into account the effects it would have on social justice, human rights, and gender equality. Based on an extensive analysis of extant literature, legal statutes, and case studies, this paper investigates the legal, historical, and sociocultural elements that contribute to the continued occurrence of marital rape in India. To sum up, this essay argues that making marital rape a crime is a crucial step towards protecting married women's fundamental rights, combating gender-based violence, and promoting a fairer and more just society in India. It demands immediate legislative action, public discussions, and policy changes to end the culture of impunity that permeates society and holds married rapists accountable.

2021

Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces."-F. H. Batacan Marital rape or spousal rape is an unwanted intercourse by a man with his wife obtained by force or physical violence, or when she is unable to give consent. It is considered a form of domestic violence and sexual abuse in many countries. In the most famous, Late Justice J.S. Verma Committee the committee held that a marriage license should not be viewed as a license for a husband to sexually exploit his wife. A married woman has the same right to over her own body as any other woman in the country. Under the Indian Constitution, the Act of Marital Rape violates Art 21 as it is in violation of an individual's right to live with human dignity, right to sexual privacy and also right to bodily self-determination. Therefore in light of the above mentioned aspects, this paper would emphasis on the need of a marital rape law in India.

2021

Sexual ferocity is defined as the action of divulging somebody to a sensual conduct without one’s accord. It comprises of a large range of behaviours from touching to raping. The mainstream of the sufferers are women. Rape is the act of having erotic intercourse with an individual without consent. The notion of marital rape has been unnoticed for years because of the philosophy that endorses men have the right to treat their spouses as they desire and the wife must provide her man with all his requirements. These days with the variations and progress in the notion of marriage, the upsurge in the consciousness of the society and the understanding of the idea of violence against women; it has been understood that sensual intercourse should be equally desired by both parties of the married couple. Or else it should be well-thought-out as sexual assault.The aim of the research paper is to review the medical, social and legal aspects of marital rape, to present the existing situation abo...

AEGAEUM JOURNAL, 2020

Marital Rape is an offence where the spouse is the victim of sexual conduct without consent and free will. It is recognized in various western and european countries as a crime and penal offence. India refuses to acknowledge Marital Rape as a Crime after the recommendation of the United Nations Development Programme. Critics have often slammed this concept as a part of Western Civilization and doesn’t adjust with the Indian Civilizations as both are culturally opposite. The Indian Penal Code,1860 has a prominent provisio i.e., section 498A which doesn’t recognise marital offence explicitly because it states about infliction of cruelty and Indian Social Concept of Marriage has considered sexual conduct an act for procreation of child which is not an infliction of cruelty because it doesn’t cause grave injury. There is another provision of rape that considers forced sexual conduct as rape of an wife under the age of 15. There is no Penal Provision in IPC which recognizes Marital Rape as an Criminal Offence. The Indian Domestic Violence Act lets women take legal recourse for Marital Rape Victims.The UN statistics have found that women from the age of 15-49 are mostly the victims of Marital Rape. In India, Marriage is considered an sacrament in Hinduism and the relations of a spouse is of one person because after solemnization and cohabitation of the spouse they are considered one person in the purview of law. The commencement of the Marriage is considered as the spouse giving free will to Marital responsibility including sexual conduct as per Religious Texts and Holy Books.

Indian Journal of Integrated Research in Law, 2022

The institution of marriage is sacramental in nature and it is considered to be the union of two persons for eternal. Marriage is a social institution which is given heightened importance in society at large 1. In last two-three decades the institution of marriage has lost its sanctity into the eyes of society at large because of the group of people known as the misandry. If we look at the past then we get puzzled by the worsening of this institution through passage of time. The institution of marriage has in the passage of time has changed itself to fit the demands of time. Marriage as an institution has different connotations in different societies. Let us forget about the different societies and talk about the different time spans through which this institution has been worsened by the people in a drastic manner. The structural and functional aspect of marriage as an institution has turned from simple to complex. What can be the reason of this situation? The author will try to justify this through certain societal aspects and data in a dissentient manner. Indian society is very sensitive pertaining to the institution of marriage but this has become unwonted in few metro cities of India these days. The author will not discuss what marriage is, how it is being practised but will try to discuss the inner subject matter of it and its interior sensitivity and how it has gone affected in a matter of time. Marital rape is one of such example wherein the institution of marriage is again targeted by the group of people who is known to be misandry.