By Sushmita Dey
Marriage is considered a pure relation, a union of two individuals based on their love for each other. They are an example of a perfect marriage. However, very often, the sanctity of marriage is destroyed when either of the partners is abused. Most of the time, the woman is at the receiving end. Marital rape is domestic violence that a woman must face because her consent is considered implied when she is married off. She is regarded as an unimportant property of her husband, bound to submit to his whims.
Section 375 of the Indian Penal Code, 1860, defines “rape” as any non-consensual intercourse with a woman. However, until recently, marital rape was not considered a crime because it was treated as the husband’s right. An exception to Section 375 has been made, stating that if the wife is under 15-18 years of age, then the sexual intercourse will be considered rape. Section 375’s exception provides immunity to a husband, and the wife is expected to submit either willingly or unwillingly to her husband’s demands. There are countries where sexual contact without express consent is considered a crime, but India is one of the 36 countries yet to criminalize marital rape.
Marital Rape and Indian Law
Section 375 of the Indian Penal Code, 1860 has been used to define rape, and it uses six circumstances based on which sexual intercourse will be considered as rape against the consent of a woman. The section was established with the purpose to distinguish between consensual and non-consensual sexual activity. And in case a person is found to be guilty of forcing his sexual needs upon anyone, he will be punished accordingly with a fine and imprisonment.
But the section previously failed to mention anything specific about marital rape and later added an exception that states that if the wife is below 18 years of age, then the sexual activity will be considered rape. Still, if the woman is above 18 years, the intercourse will not be considered rape, thus ruining the very purpose of Section 375 to grant justice to every sexually abused victim. In Section 375, other than the exception, there is no mention of marital rape. The reason behind this is, at the time when the Indian Penal Code was formulated, men and women were not given equal status. A woman had no independent identity, and she was considered the property of her husband. A woman was known through her guardian or her husband after marriage. She had no right to decide for herself. The patriarchal form of society was in force at that time, and women's needs were not given importance.
Article 14 of the Indian Constitution ensures that every citizen of the country will be treated equally before the law, be it a man or a woman. No one will face discrimination against the other. But, even though the provision of equality has been guaranteed to every citizen, section 375 creates discrimination among women. Since nothing specific has been mentioned about marital rape in the section, a woman's marital status creates a line of distinction between the women, which ensures justice to some but not to others. The section makes rules to protect unmarried women while letting married women continue to remain victim, without any protection against being sexually exploited. Not only this, the section, through its exception, further divides married women into two categories. Only a minor who is married and has been sexually abused by her husband will be entitled to justice. Still, a married woman who is above 18 years of age shall not file for justice against their husband for sexual exploitation. This section, in short, immunizes the husband to do as they please with their wife, and in turn, the wife will continue to be abused for their life.
Article 21 of the Indian Constitution ensures that every citizen is entitled to a right to health, privacy, dignity, personal liberty, etc. the exception to section 375 violates this article when a husband is not punished for sexually exploiting his wife against her consent. Non-consensual sexual intercourse is often followed by physical violence. Rape is an unlawful intrusion of the right to privacy and harms the dignity of a woman. Every woman is entitled to make the decision with whom they want to get sexually acquainted. But, the section snatches away this fundamental right from the woman after her marital status is changed.
According to the Protection of Women from Domestic Violence Act, 2005, marital rape is a type of local violence. Under this act, an abused woman can file a case against her husband and plead for separation from her husband. When a husband rapes his wife, it becomes much more personal to her and is subjected to lifelong trauma. However, the law to protect the interest of a married woman is insufficient and therefore, this act was enacted to grant some rights to a woman.
The recent rise in Marital Rape during the Covid Pandemic
When the entire world observed complete lockdown to fight the deadly coronavirus, some women could not feel safe even within the four walls of their own home. Lockdown of the nation did not guarantee lockdown of domestic violence. It had the opposite effect; the world saw a surge in the case of domestic violence or marital rape. Lockdowns were necessary to stop the further spreading of the virus, but it had forced women to stay with their abusive partner. The lockdown had put restrictions on women who became a victim to such abuse.
In India, the National Crime Records Bureau has recorded that every twenty minutes, one woman gets raped. National Crime Records Bureau’s criminal record in 2019 showed that about 70% of the women are subjected to domestic violence, out of which more than half are not even reported. Reports show that between the ages of 15 to 49, every three married women had to suffer at the hands of their husband. Because of the pandemic, many people were left without a job. They became uncertain about the future, suffered mental instability. They feared the regular increase in cases of Covid. And if that was not enough, some women had to live with abusive partners 24/7. The pandemic fuelled the violent nature of few men, and as a result, the women unwillingly had to become an outlet for that anger, sexual frustration. The pandemic put the women in a spot where they could not reach out to people to seek help from the outside world. They had to fight their fear of Covid as well as sustain the abuse at home. The abusers were present at their home, and because of the lockdown, the women were forced to stay quiet and did not report the crime. And since many cases were not filed, the exact data could not be formed. The cases are assumed to have crossed a limit that was not seen in the last 10 years, especially strictly under Covid restrictions. Women between March and May filed approximately 1470 complaints. These are just the cases that came on record, and the numbers of cases that are not reported are still unknown.
As far as only 10% of the victims approach to report the crime, and others sustained it, keeping in mind that men have the upper hand in society. The national commission of women of India reported an almost 100 % increase in domestic violence case. PIL was filed in the High Court to deal with the situation. As a result, the Delhi High Court and the Supreme Court directed the central government, national commission to set up measures to deal with domestic violence and set up helplines that would provide a helping hand to the victims of abuse. Some NGOs that a woman can approach in case they have been subjected to violence are Guria India, Sayodhya, the Urja Trust, etc., to name a few.
The spread of the corona virus has resulted in many problems for people, including increased cases of abuse against women. A rape victim, no matter she is married or not, is looked down on. But at least if the woman is unmarried, she has some scope of getting justice, but marital rape is an issue that is considered a taboo topic and ignored most of the time. They do not get fair treatment. It is the wife’s word against her husband’s. The perpetrators walk away freely, and the woman has to continue to live with him. Lack of proper law is one of the reasons why women are hesitant to report the crime. Society is still following an ancient law that does not hold women in high regard, merges her identity with that of her husband. But time has changed now, women now have a separate identity than their husband, so it is essential to revise the laws properly to accommodate women’s right. The women’s must be assured that their pleas would be heard. It is time to acknowledge the violence going in a person’s home and create awareness and make resources available for the same.
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Author- Sushmita Dey
LL.B, Semester V
J.B. Law College