EDITORIALS & ARTICLES
The impunity of marital rape
Amid the nationwide lockdown during the coronavirus pandemic, National Commission for Women (NCW) alone registered 587 complaints in the first three weeks of the lockdown period was a steep rise from 396 complaints received before lockdown.
Consequences of Marital Rape
- Lifelong injuries suffered by women: Physical injuries to vaginal and anal areas, lacerations, bruises and other forms of injuries which might never get healed for the lack of immediate medical aid.
- Lack of helping hand from society to the victim: Anxiety, shock, depression and suicidal thoughts which might lead to lowering of optimal output capacity of the female.
- Gynecological effects like miscarriage, stillbirth, bladder infections, STD‘s etc. leads to classic case of modern day exploitation and a clear failure of the three waves of feminism, especially in a country like India.
- The long drawn symptoms like insomnia, eating disorders, sexual dysfunction, negative self-image etc. are some of the long term effects for which there is no legal, societal, governmental help at hand.
Challenges in addressing Marital Rape in India
- Under-reporting of sexual violence cases: An analysis of National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 per cent of sexual violence cases go unreported.
- The average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
- Ineffective legislation related to sexual violence: In spite of the recent amendments in the criminal law, various laws meant to protect women from domestic violence and sexual assaults have largely remained ineffective.
- Presence of laws safeguarding culprits and endanger victims: One of the most horrifying and repressive issues with the Indian legal regime is that marital rape is perfectly legal.
- Patriarchal outlook of rape laws: The rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies.
- The men deny married women equal protection of the laws guaranteed by the Indian constitution.
- Lack of political will to criminalize marital rape: Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence but English laws have been amended and marital rape was criminalised way back in 1991.
- No Indian government has so far shown an active interest in remedying the problem of marital rape in India.
- Criminalizing marital rape would destabilize the institution of marriage: The orthodox view remains that marital rape cannot be criminalized because of the sacred nature of marriage in Hinduism.
Need for legislation on Marital Rape in India
- Domestic violence in India is an entrenched problem: The National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report stated that a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws.
- Call from United Nations to criminalize Marital Rape: In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.
- India is one of only 36 countries where the intimate assault (marital rape) is a perfectly legal crime.
- Protection of sanctity of women by Supreme Court: The Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21.
- Indian women deserve to be treated equally, and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
- Social position given to women in Indian society: Historically, Indian women have been considered to be owned by their fathers and later their husbands and hence, rape can, to a certain extent, be equated to a crime against property.
- Law Commission of India views on Marital Rape: The 42nd report put forward the necessity of excluding marital rape from the ambit of Section 375.
- It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse.
Measures to be adopted to tackle Marital Rape in India
- Sensitisation of lawmakers towards Marital Rape: The lawmakers fail to understand that a marriage should not be viewed as a licence for a husband to forcibly rape his wife with impunity.
- A married woman has the same right to control her own body as does an unmarried woman.
- Laws have to adapt to the changing reality of society: The courts have various methods to identify marital rape and have given strict punishments but due to the lack of legal provisions, they are bound and hence cannot describe “forceful intercourse by a man upon his wife” as marital rape.
- The term ‘consent’ should be defined to draw line between consent and coercion.
- Implementation of JS Verma Committee Report: The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had recommended the criminalization of marital rape.
- It recommended that all marriages in India (irrespective of the personal laws under which such marriages are solemnized) should mandatorily be registered in the presence of a magistrate.
- Amendments to the Code of Criminal Procedure: The manner in which the rights of women can be recognised can only be manifested when they have full access to justice and when the rule of law can be upheld in their favour.
- Police reforms: The police officers with reputations of outstanding ability and character must be placed at the higher levels of the police force in order to inspire public confidence.
Road ahead
- The United Nations Declaration on the Elimination of Violence against Women defines violence against women as any act of gender-based violence that results in physical, sexual, or mental harm or suffering to women, whether occurring in public or private life.
- It is high time that the legislature should take cognizance of the legal infirmity of the Supreme Court judgement and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC.
- It is argued that marital rape should be criminalized in India, as this can be achieved by applying an individual rights approach to violence against women.
- Indian women’s organizations have succeeded to achieve public awareness and to pass legislation on domestic violence, but marital rape has not been fully criminalized by abolishing the distinction between marital rape and stranger rape.
- There is a need to acknowledge woman as a human being, away from the ancient notion of her being a mere chattel, and give her respect and the dignity she deserves.
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