The ‘Right’ to Rape?

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In India, a rape happens once in every 16 minutes, as revealed by National Crime Record Bureau (NCRB) report. New Delhi, or the Crime Capital of India, records maximum crimes against women, constituting 28% of the total share, whereas, Rajasthan is also growing as the hub of most rape cases against women. However, I am relieved that India has data for these crimes, as opposed to none for the most prevalent crime (ironically unauthorized) happening almost every day in most households, that is, ‘Marital rapes'. The irony of the situation is that the Indian Constitution does not even provide this crime a legal status.

Marriages or Authorized Rapes?

Basically, in our society, marriage is the backbone of ‘authorized’ sex i.e., people are given a "so-called" right by our "so-called" prestigious society to have sexual intercourse, presuming that a woman has consented for it since the moment they get married. In short, women are treated no more than 'sex slaves' or 'sex toys' to be used at any moment for the husband's pleasure and a woman is expected to stay quiet since it is the wife’s duty to comply. When we talk about marital rapes specifically, it implies a lack of consent on the woman's side and during the intercourse a woman experiences a very rough sexual activity which can worsen her biological health. A ragged and jaggy non - consensual sexual activity can often lead to mental and psychological trauma. It is more painful and can also cause vaginal lacerations, anal injuries, vaginal bleeding and uncommon discharges.

Legal Ambiguities

The Indian Constitution proudly defines a set of fundamental rights but the irony is that to what extent these rights are actually serving their motives . A judgment by Gauhati High court in 2020 with reference to a rape case of 2009, stated that 'rape' is a clear and blatant violation of Article 21 of Fundamental Rights (concerning with Protection of life and Personal Liberty). Broadly speaking, Article 375 of Indian Penal Code (IPC) defines 'rape' as "a sexual intercourse with a woman against her will", but clause 2 of this article provides an exception to it by stating that sexual intercourse by a man with his own wife, not below the age of 15 years, cease to be a rape.

However, after the Nirbhaya case (Delhi gangrape case) of 2012, the Justice Verma committee was constituted which recommended the removal of complete exception of Article 375 (2) from the constitution. But the 2013 Criminal Law (Amendment) Act refused to include marital rape in the arena of IPC and continued to retain that exception and according to the legislature, every "non-consensual" sexual act cannot be regarded as rape. This implies that this act continues to see the wife as the husband's 'sexual property'. However, the 'Protection of women from Domestic Violence’ Act 2005 protects women from domestic violence but does not criminalise the marital rape. Furthermore, Section 498 A of Indian Penal Code specifies only mental and physical abuse under its definition of cruelty by husband and the in-laws and makes no mention of marital rape. This clearly emphasizes the need of certain amendments in Indian Penal Code to cover sexual abuses happening after marriages . For how long , we would be negating this harsh truth by covering it under the veil of the social institutions of family and marriage.

Justice K S Puttaswamy v. The Union of India case ruled that the right to make sexual decisions is envisaged in the right to privacy and this right does not exclude married women above the age of 15 years from its purview.

Eventually, in 2017 a PIL was filed by an NGO named "Independent Thought" claiming that married women over 15 years of age should also be accorded some sort of protection. The Supreme Court therefore agreed, to some extent, with these affirmations and raised the age limit in section 375 (2) from 15 to 18 years. Taking all this into consideration, one might conclude that this is a serious violation of Article 14 and Article 21 of Indian Constitution for females and Indian Constitution through colourable legislations provide a legal right to rape to husbands across India.

Moreover, there have been many petitions filed before Courts in India but all of them have been silenced. In 2015, a petition filed by a woman in the apex court was dismissed on the grounds that a law 'cannot change for one woman'. In Amesh Kumar vs State of Bihar case, the apex court observed that criminalising marital rapes will lead to the collapse of social and family systems and can destabilize the institution of marriage. In a recent rape case, the former Chief Justice of India (S.A Bobde) asked the accused and I quote, “will he marry the girl he raped?"; this shows that to what extent the values of gender sensitivity are downtrodden in Indian society and how marriage has become an institution of "justified" male sexual assault upon females.

The Way Forward

However , merely passing legislation upon this issue is not the only solution. We need to work upon the rehabilitation of the victims too. The analysis of National Family Health Survey (NFHS) indicates that an estimate of 99.2 % of sexual violence cases go un-reported and the basic reasons behind this are societal harassment, fear of societal judgements , family and financial dependence of wife upon their husbands. Subsequently, these societal tendencies could only be turned by bringing such kinds of issues in limelight . The normative and cognitive aspects of the patterns of socialization need to be urgently challenged . As a reformatory measure, women cells need to be created and critically checked upon to help victims of marital rapes gain their financial independence. Some counselling sessions should be provided to married women on a regular basis for educating them on certain sexual issues and inculcating the need in them to stand up for their rights , will also prove to be a great help .

Most importantly, looking down from another aspect, some counter - legislations are also required to keep a check upon the misuse of such sensitive provisions by women ( once they are passed ) which has become more prevalent these days. While the discussions upon these feminist issues are carried upon , some debates are also taking place emphasizing the need of protection of men , in case a women tries to formulate a false accusations upon them . In this respect , a vision of some counter legislative rulings will give a wider perspective to this situation.

Conclusion

It is shameful to observe that India is one amongst the 36 countries in the world which has no law regarding marital rape. Lawmakers fail to understand that a marriage is not to be viewed as a licence for a husband to forcibly slave his wife with impunity; and for a country like India, which remarks itself as one of the greatest democracy of the world, it is all the way more important that it should strive to provide married women a dignified life and unless such legislations are made, the dream of making India a safer place for females would never be fulfilled.

"A rape is a rape , either before marriage or after.”

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By Anadhi Sharma

Anadhi Sharma is a Political Science Hons. student and she is highly inclined towards contemplating and articulating her views on various political issues. Her passion is to use her writing to give a strong voice to her ideas. She likes to read about diverse opinions of people on various issues and reflect upon them.

sharmaanadhi25@gmail.com