INTRODUCTION
In Indian society a marriage is relationship where spouses rely on each-other, show faith, respect and a consideration of understanding towards each-other’s feelings. Among all the good great depiction of marriage which is being visualized by the Indian society it has a brutal deep and dark side of it which is very conveniently ignored by the people for the sake of patriarchal superiority or on the name of customs and culture. Supressing the women and her rights and her freedom to an extent that she herself started feeling like an object is what bad marriage actually does. Not being able to raise the voice against the wrong which is happing against her till date is the main reason why there are so many crimes which are not expressly criminalized by the law of India.
Among the offences such as domestic violence and domestic abuse and cruelty a term time and again pops up and sits down which is marital rape. How come an act which is against the will of a person is not an offence in Indian law. Because apparently a man who marries a woman owns her and that’s how when you own something you can do whatever you want to do with that thing. Same is the atrocious case of marital rape where one spouse rapes the other one without her consent, forcibly and repeatedly and that’s his right because that’s what marriages do. In India marriage gives right to men to have sex with his spouse even if she does not want it.
HISTORY/BACKGROUND
According to the British common law, the contract of marriage includes in itself the husbands right to sex i.e., contract of marriage remains no more remained a recognised union of two partners but a mere all-time consent by the wife to have sexual intercourse.
Sir Mathew Hale in his History of pleas of the crown wrote, “But the husband cannot be treated as guilty of rape which is committed by him only upon his legal wife, as per their mutual matrimonial consensus and contract wherein the wife has given up herself in this kind unto her husband, which she cannot retract”.[1] This, later on, became the major backdrop of the then earlier code. Later on a new Code in the year 1860 was brought up by the British parliament and is prevailing in independent India.
Indian law is basically inspired from British law because of the long British rule over India. most of the laws are even made by the English people which still prevails in India. but the reality of 21st century is that we cannot run into past and what is done in past cannot be complied in present even after knowing the fact that it is not for the welfare of society, state and country.
LEGISLATURE ON MARITAL RAPE
The central government submitted to the High Court of Delhi that condemning conjugal assault would undermine the foundation of marriage. The centre additionally said that what could have all the earmarks of being conjugal assault, probably won’t seem something similar to other people and cautioned against aping the west indiscriminately. It further presented that just erasing second exception won’t fill any need. Assuming that sexual demonstration by a man with his better half will meet all requirements to be conjugal assault, then, at that point, the end whether or not it is conjugal assault will rest with the spouse. Additionally, there can be no enduring proof on account of sexual demonstrations between a man and his better half.
As per Maneka Gandhi, “it is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, the mind-set of the society to treat the marriage as a sacrament etc.”[2] ultimate marital rape law can’t be applied in India. Hence such responses add to the difficulty arising in criminalizing the offences like marital rape.
JUDICIARY AND MARITAL RAPE
If we look into the judicial aspects of India it clearly states that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape” under section 375 of the Indian Penal Code. Section 376 of the Indian Penal Code provides punishment for rape. According to this section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to find or both. In Saretha V. T. Venkata Subbaih case[3], it was held that, rights and duties in a marriage, is like a creation and dissolution and not the term of private contract between two individuals. The right to privacy is not lost by marital Association. Hence there is no punishment for marital rape and the remedy lies with her.
The Domestic Violence Act, 2005 has provided various civil remedies and various provisions such as the cruelty and other matters are dealt under. There are large number of victims under the marital rape scenario is being increased but the legislature is ignorant to criminalize such an offence. The women are ignorant of what the actual scenario is and the laws which are prevailing in the Indian penal code for them.
The Judicial decision of Queen Empress v. Haree Mythee[4], it was held that, the wife over the age is of 15, then the rape law does not apply in that situation. In this case the husband was punished because wife was of 11 years only. In the Kerala High Court, Sree Kumar v. Pearly Karun[5], it was observed that, the wife does not live separately with the husband under the Judicial separation and being subject to sexual intercourse without her will the act does not amount to a rape. Hence, it was said that, the husband was not found to be guilty of raping his wife though he was de facto guilty of doing or committing the act. As per the Constitution of India, every law which is passed must be in conformation with the principles and ideas which are enshrined in the constitution. Any law which has been made failed to meet its required standards are considered to be ultra vires and it can be struck down or to be declared unconstitutional. Here, the exemption of Section 375 withdraws the protection of married women on basis of her marital status.
RECENT DEBATE ON MARITAL RAPE
The Delhi High Court is hearing a challenge to the constitutional validity of the ‘marital rape immunity’ provided for in the Indian Penal Code. The case has put the spotlight on crucial issues concerning consent, the extent of state control on female sexual autonomy, and correcting historical prejudices in law. The PIL was filed before the Delhi court challenging marital rape as an exception under IPC section 375. Debate on the man and the marriage and why marital rape should be criminalized have been heard by the court. The court also heard two appointed amicus curiae and their view also falls with the agenda of the PIL. The judgment is yet to come out and every Indian citizen who believes in law and law which believes in natural justice are praying for the approval of the PIL. Also the court had the view that how come rape and other women welfare laws turned out to be very negative these days that what if the criminalizing the marital rape will give rise to a new offence in the society. Although there was debate on this topic as well, but it is to see what the honourable court of justice decides.
CONCLUSION
As one can deduct from the words given above, there are a few sections in the Indian Penal Code that could be utilized to protect a lady from conjugal assault. There are a few sections from the IPC which are disregarded when thoughts like Marital Rape aren’t viewed in a serious way in a marriage. Nonetheless, countering the counter contentions, the possibility of conjugal assault is one that discolours the possibility of marriage since it is a lady’s own significant other that compels her for sexual experience, whom she trusts and has the confidence to safeguard her. This causes to a greater degree an injury as opposed to being assaulted by a complete outsider.
Marriage ought not to be treated as a permit by a spouse to drive his better half for any sort of actual intercourse subject to being rejected from discipline. A wedded lady has a similar right and freedom to control her body as an unmarried lady, after marriage one can’t think about her as the property of men. Assault is assault, be it post or before marriage, independent of the character of the culprit and age of the survivor. On the off chance that a lady being assaulted by any pariah other than his companion is viewed as wrongdoing soon the other hand how might ladies assaulted being by a mate be considered as and unimportant? The issue of abusive behaviour at home and that of rape inside a marriage ought to be managed contrastingly under various regulations. Conjugal assault is no less genuine than some other types of sexual viciousness. The issue of not announcing such an issue brings about an absence of public information that sex in marriage without assent is an offence.
REFERENCE
- Concept of Marital Rape Can’t be applied in Indian Context: Maneka Gandhi, The Indian Express (March 11, 2016, 2:03 am), https://indianexpress.com/article/business/budget/imarital-rape-concept-maneka-gandhi-indian-context/.
- Marital Rape in India, Drishtiias, (December 22, 2020), https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india.
- Anirudh Pratap Singh, Criminalize Marital Rape In India: Marriage is not a License to Rape (December21,2020)http://web.archive.org/web/20210117023709/https://counterview.org/2020/12/21/criminalize-marital-rape-in-india-marriage-is-not-a-license-to-rape/.
