“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.” ― Philippa Gregory, The Red Queen. In India there is no such thing as marital rape, marriage is an implied consent to have sex, husband has all rights over his wife, she is a wife it’s her duty to provide her husband sex. These are the most common and ignorant comments which can be heard, not only common people but people like Swaraj Kaushal senior advocate of supreme court of India who also served as governor of Mizoram posted a comment on a social platform saying “ There is nothing like marital rape our home should not become police station “. The problem doesn’t lie that the government does not want to criminalize marital rape actual problem is the society as a whole be it common people, politicians, even judiciary do not even consider it as a problem as if marital rape doesn’t even exist but there are actual proof showing that marital rape exists in India it’s a big issue. The UN Population fund which tells that two third of married women in India aged between 15-49 years have been beaten or forced to provide sex another survey done by International Men and Gender Equality revealed that one in five men has forced their partner or wife to have sex while Maneka Gandhi ( Minister of women and children development ) acknowledged the problem of marital rape but indeed said that the concept of marital rape cannot be applied in Indian context because of many factors like poverty, illiteracy, religious sentiments etc. Now this is the point to think where countries like Nepal, Bhutan which are also developing countries have already criminalized marital rape then why India is not ready to accept it.
What exactly is “marital rape “? Answer to this is when , a husband forces himself upon his wife his wife not being below 15 years of age by means of threat or force. Sexual violence in a marriage is not just bedroom quarrels they are more than that more traumatizing sexual assault can range from continuous sexual coercion for whole night or whole day even at time of mensuration cycle here coercion means some kind of force of threat which forces a women to have sexual relationship with her husband. Use of force in any kind of relationship is not acceptable but still One relationship the relationship between a husband and wife is exempted. It is an unfair situation if we compare a one women who is not married and unfortunately raped by a man to a women who is married and faces exactly same kind of sexual violence, the accused in the former case will be charged with rape and will be punished but what about the latter case where the accused is husband of the women, the force used was of same kind the injury to both women was same, pain caused to both will be same and trauma of being raped will be faced by both with so many similarities why there is difference is present with regard to punishment. Same was said by Justice Verma Committee after the horrifying Nirbhaya case Justice Verma Committee submitted some of it’s recommendation to amend criminal law for crime against women in one of it’s recommendation it stated :
The Indian penal code differentiate between rape within a marriage and outside , marriage should not be considered as an irrevocable consent to sexual act
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This recommendation was made in order to change the exception -2 of the clause 375 of Indian penal code. Section 375 of Indian penal code defines rape as any sexual act done by men on a women without her consent or will , is to be considered as rape and will be punished according to section 376 of Indian penal code but Exception-2 of section 375 clearly states “ sexual intercourse or sexual acts done by a man with his own wife, the wife not being under fifteen years of age , is not rape “ this exception was amended in year 2013 by a case – Independent Thought vs. Union of India after this case the age of the girl is now extended to 18 years now the exception is read as “ sexual intercourse or sexual acts by a man with his wife, the wife not being under the age of eighteen years of age, is not rape “ the men under the age of 18 are now protected but what about married women above 18 years of age they are still not protected seeing this the exception was challenged in court again by All India Democratic Women’s Association with a marital rape survivor but the court dismissed their petition saying that criminalizing marital rape would ruin the sanctity of marriage and would become an easy tool for harassment of husband’s.
After hearing what the courts had to say on the topic the people started another debate among themselves those were all over the news channels by seeing those, people started to form their opinions according to some people marital rape should not be criminalized because there are laws already existing to protect women from sexual violence there is no need to criminalize it and the most common and most heard “ it will be misused by women “ and some people were in support to criminalize it but yes, we cannot ignore the fact that there are law existing to protect women from sexual violence. The protection of women from domestic violence act 2005 is present to deal with such kind of problems section 3(a) of the act deals with mental and physical harm and explanation -1(ii) includes sexual abuse of the women . Sexual abuse includes any conduct in nature that abuses, humiliate, degrades or otherwise violates the dignity of a women, forced sexual intercourse and being compelled to watch pornography or any other obscene material but only remedies under this act are counselling, monetary compensation, providing medical facilities or shelter only civil liability are imposed on a husband.
In Hindu Marriage Act the cruelty of husband is recognised but under this act remedy available is divorce under section 13 it simply means a husband can get away from any type of sexual violence by just paying monetary compensation or getting a divorce he would suffer no criminal liability. And most important question , what if marital rape is criminalized and then it is misused by women this can be simply answered the court in the case – Satish Kumar Batra vs. state of Haryana held that merely because there is a possibility of misuse of the offence of cruelty to wife under section-498A of Indian Penal Code is not a ground to hold this provision as unconstitutional then why a mere possibility of misuse is has become a obstacle for making a law which can help women to get protected against marital rape and give them equal rights as men have over their own body.
Legislature, judiciary as well as the people of the country should try to change their mind set towards the problem of the women and their rights. Judiciary has started to take a feminist approach and acknowledged the problem going on with women rights and tried to solve them . When the entry of women was restricted in some of religious institutions like Haji Ali dargah and Sabrimala temple on very ambiguous grounds the Supreme court analysed the problem and have held judgement in favour of women and removed the restrictions on entry of women, court in the cases of Shayara Bano declared the Triple Talaq as violation of Article -14 of Constitution of India and Joseph Shine vs Union of India court decided the removal of section 497 which deals with adultery and decriminalized it these both cases changed the status of a man earlier which was considered as master of the wife in a marriage is now considered as a partner, an equal in a marriage. Still martial rape exits judiciary is doing its part but there is proper law enforcement system needed, police should be given workshops regarding the social issues, people and specially men have to change from early stages in life a children’s both boys and girls should be taught to respect everyone and be sensitive towards the problems of each other young boys and girls should not be suppressed by gender stereotypes. Slowly we would see the changes but till then a proper laws and law enforcement should be made to protect women from the marital rape and misuse of law should be stopped by making some regulations.
