By Satyaki Paul
Recently, the Chhattisgarh High Court has acquitted a man of marital rape by ruling that sexual intercourse or maintaining conjugal relations between legally wedded man and woman is not rape even if it is by force or against the desires of the wife. This decision is indeed a retrograde one wherein the wife is being treated as a mere chattel of husband by the court which is against the decision of decriminalisation of 497 I.P.C. by a five-judge SC benchin the case of Joseph Shine vs. Union of India (2018).
This brings us to the first question: What is Marital Rape?
Marital rape refers to the act of sexual intercourse with one’s spouse without the spouse’s consent. Marital rape is not a crime in Indian Jurisprudence. However, there has been growing clamour to Criminalise Marital rape in India. In this context, as per the NHFS-4 survey, 5.4% women experienced marital rape in India.
Secondly, what are the provisions of rape in IP
C? The IPC under Section 375 defines rape as follows: A man is said to commit “rape” who has sexual intercourse with a woman under following circumstances such as: Against her will, without her consent, with her consent, but the consent has obtained because of: Putting her in the fear of death, When the man knows that he is not her husband but she believes that he is her husband, Unsound mind or intoxication, With or without consent, when she is under 16 years of age. Nevertheless, the same section gave an immunitythat sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape (this definition is not in consonance with current times).
Thirdly, what are the reasons which enforce Marital Rape in India?
In Indian context, wives are economically dependent on their husbands, from early stage of marriage there is a to lack of economic independence. As because women folks are married off to individuals who are settled in a good job. This leads to an inequity in the marriage which is dominated by the patriarchal mindset that: why should women look for job or do some job? Such meta preferences often perpetuate the inequity which often leads to Marital Rapes. There is also lack of awareness wherein women often do not even realise that they are the victims of marital rape, as sex without consent is taken for granted in the marriage. Such mindsets are also in need of alteration or reformation in consonance with current times.
Fourthly, what are the arguments which are favour of Criminalisation of Marital rape?
The criminalisation of Marital Rape is against the individual rights of the married women (under Article 14 and 21). In such cases, a married woman should have the same rights over her body as much as an unmarried woman does. Thus, the victims of marital rape undergo same trauma as in case of rape by strangers. Studies show that rape victims, either married or unmarried, undergoes PTSD (post-traumatic stress disorder). This is also a form of domestic violence: sexual offence against the wife is a form of domestic violence. Nonetheless, such provisions are fundamentally against the decision of decriminalisation of 497 I.P.C. by a five-judge SC bench in the case of Joseph Shine vs. Union of India (2018).
Lastly, what are the arguments which are given against criminalization of Marital Rape?
The issue of Marital Rape is often treated as a threat to the institution of marriage, as because both the spouses have conjugal rights over each other. However, Marriage as an institution evolved over the period. New forms of marriage emerged like Cohabitation, Live-in, same sex marriages etc. where individual choices are given primacy. Thus, it can be said that the institution of marriage is no more primitive in nature, where conjugal rights took precedence over individual choices.
In this context, I can also include that the section 19 of the Hindu Marriage Act (1955) gives either spouse in a marriage the legal right to “restitution of conjugal rights”. But, recognition of conjugal rights to have sex with spouse does not give a licence to rape. In Indian context, there is a constant misuse of law in various arenas. Nonetheless, it should be kept in mind that laws are meant to protect women but are often misused just like section 498 A. It is also a challenge to prove the offence. In the end, I would like to state that misuse of a law is not a defensive argument to not to enforce it. This would be a sheer blunder committed by the judiciary towards the Indian women at large.